Juries

From Criminal Law Notebook

General Principles

The Canadian jury system has been described as one of the "most familiar symbol and manifestation of the Rule of Law in this country".[1]

A jury's task is not to "reconstruct what happened" but rather to determine if the burden of proof sufficient to make out a conviction has been met.[2]

  1. ↑ R v Barton, 2017 ABCA 216 (CanLII), per curiam, at para 1
  2. ↑ R v Pittiman, [2006] 1 SCR 381, 2006 SCC 9 (CanLII), per Charron J (5:0)

Right to a Jury Trial

Section 11(f) of the Charter provides certain rights to trial by jury:

11. Any person charged with an offence has the right ...

(f) except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment;


– CCRF

An offence with a maximum penalty of 5 years less a day cannot be considered a "more severe punishment" due to the existence of some "collateral negative consequences" to the period of incarceration.[1]

Where an offence violates s. 11(f) the appropriate remedy would not be an entitlement to a jury trial, but rather a "reading down" of the offence maximum penalties.[2]

Similarly, s. 471 provides presumption of a right to a jury in all indictable offences:

Trial by jury compulsory
471. Except where otherwise expressly provided by law, every accused who is charged with an indictable offence shall be tried by a court composed of a judge and jury.
R.S., c. C-34, s. 429.


– CCC

Jurors bring their own life experience's to their task.[3]

A prospective juror is presumed capable of "setting aside their views and prejudices and acting impartially between the prosecution and the accused upon proper instruction by the trial judge on their duties."[4]

Members of the jury are to come to a unanimous conclusion on the verdict. They do not have to agree on the means or path to that verdict.[5]

  1. ↑ R v Peers, 2015 ABCA 407 (CanLII), per curiam (2:1) at para 15 - the court qualifies by suggesting collateral punishment such as "corporal punishment, banishment from the community, forced labour, or revocation of citizenship" may be enough. (aff'd at 2017 SCC 13 (CanLII), per curiam)
  2. ↑ Peers, ibid., at para 19
  3. ↑ See R v Pan, 2001 SCC 42 (CanLII), [2001] 2 SCR 344, per Arbour J (9:0) at para 61
  4. ↑ R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863, per McLachlin CJ at para 26
  5. ↑ R v Thatcher, 1987 CanLII 53 (SCC), [1987] 1 SCR 652, per Dickson CJ

Specific Offences

Offences under s. 469, including first or second degree murder, shall be tried by judge and jury.

Trial without jury
473. (1) Notwithstanding anything in this Act, an accused charged with an offence listed in section 469 may, with the consent of the accused and the Attorney General, be tried without a jury by a judge of a superior court of criminal jurisdiction.
Joinder of other offences
(1.1) Where the consent of the accused and the Attorney General is given in accordance with subsection (1), the judge of the superior court of criminal jurisdiction may order that any offence be tried by that judge in conjunction with the offence listed in section 469.
Withdrawal of consent
(2) Notwithstanding anything in this Act, where the consent of an accused and the Attorney General is given in accordance with subsection (1), that consent shall not be withdrawn unless both the accused and the Attorney General agree to the withdrawal.
R.S., 1985, c. C-46, s. 473; R.S., 1985, c. 27 (1st Supp.), s. 63; 1994, c. 44, s. 30.


– CCC

Topics

See Also

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