Challenge to Jury Panel

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This page was last substantively updated or reviewed January 2018. (Rev. # 85246)

General Principles

See also: Jury Selection

Under s. 629, either party may challenge the jury panel or array from which jurors from which jurors are selected.

Under the heading of "challenging the array", s. 629 states:

Challenging the jury panel

629 (1) The accused or the prosecutor may challenge the jury panel only on the ground of partiality, fraud or wilful misconduct on the part of the sheriff or other officer by whom the panel was returned.

In writing

(2) A challenge under subsection (1) [challenging the jury panel – grounds] shall be in writing and shall state that the person who returned the panel was partial or fraudulent or that he wilfully misconducted himself, as the case may be.

Form

(3) A challenge under this section may be in Form 40 [forms].
R.S., 1985, c. C-46, s. 629; R.S., 1985, c. 27 (1st Supp.), s. 130.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 629(1), (2) and (3)


Defined terms: "prosecutor" (s. 2)

Trying ground of challenge

630. Where a challenge is made under section 629 [challenging the jury panel], the judge shall determine whether the alleged ground of challenge is true or not, and where he is satisfied that the alleged ground of challenge is true, he shall direct a new panel to be returned.
R.S., c. C-34, s. 559.
[annotation(s) added]

– CCC (CanLII), (DOJ)

Note up: 630

Jury Partiality

Issues of partiality will usually take the form of problems with the demographics of the array of potential jurors.

Where the selecting potential jurors intentionally excludes aboriginals, it may be found to be partial.[1]

There is no Charter right that entitles an accused person to a jury that consists either entirely or proportionately of the same race as the accused.[2] Nevertheless, systemic biases in the method of selection against certain races may result in partiality.[3]

The public's confidence in the administration of justice relies on the impartiality of a jury.[4]

Jurors are expected to apply their "entire life's experiences to the task of judging."[5]

It is not only important that a juror be impartial but also seen to be impartial.[6]

Evidence of Juror Partiality

Where a judge is made sufficiently aware of jury conduct that may have an appearance of preference, they have an obligation to conduct an inquiry into the matter and determine whether the juror can continue.[7] Failure to conduct the inquiry is an error of law.[8]

A sufficient inquiry must include a questioning of the particular juror.[9]

A reviewing judge should not engage in speculation as to the reasons that the jury reached its verdict.[10]

Even where a juror has been a victim of crime, they are still considered to be capable of being impartial.[11]

The justice system must be sensitive to the personal lives and privacy of jurors.[12] Consequently, the process does not permit pre-questioning of jurors.[13]

  1. ↑ R v Butler, 1984 CanLII 500 (BC SC), 63 CCC (3d) 243, 3 CR (4th) 174, per Esson JA
  2. ↑ R v Kent, 1986 CanLII 4745 (MB CA), Man. R. (2d) 160, (1986) 27 CCC (3d) 405, per Monnin CJ
    R v Fowler, 2005 BCSC 1874 (CanLII), 211 CCC (3d) 401, per Neilson J
    R v Teerhuis-Moar, 2007 MBQB 165 (CanLII), 223 CCC (3d) 74, per Monnin CJ
  3. ↑ See Fowler, supra
    and Terrhuis-Moar, supra
  4. ↑ R v Barrow, 1987 CanLII 11 (SCC), 38 CCC (3d) 193, per Dickson CJ, at p. 206 ("The accused, the Crown and the public at large all have the right to be sure that the jury is impartial and the trial fair, on this depends public confidence in the administration of justice.")
  5. ↑ R v Pan, 2001 SCC 42 (CanLII), [2001] 2 SCR 344, per Arbour J, at para 61
    R v Poon, 2012 SKCA 76 (CanLII), 1 WWR 22, per Jackson JA, at para 16
  6. ↑ R v Budai, 2001 BCCA 349 (CanLII), 154 CCC (3d) 289, per Cumming JA and Mackenzie JA
    Andrews, Farrant & Kerr (1984), 13 CCC (2d) 207 (BCCA)(*no CanLII links) ("In this case the judge had received reports which made it imperative that he satisfy himself whether the juror was not only impartial, but could be seen to be impartial")
    R v Tsoumas, 1973 CanLII 1541, 11 CCC (2d) 344, per Martin JA
  7. ↑ Andrews, supra (after receiving reports of a juror smiling at the accused the judge "had no alternative when he received those reports but to conduct an inquiry to ascertain if the juror in question could properly continue to act as such.")
    Budai, supra, at para 58
  8. ↑ Budai, supra, at para 58
  9. ↑ Budai, supra, at para 59
  10. ↑ Budai, supra, at para 61
  11. ↑ R v Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128, per McLachlin J, at para 13
    R v Spence, 2005 SCC 71 (CanLII), [2005] 3 SCR 458, per Binnie J, at paras 21 to 22
    R v K(A), 1999 CanLII 3793 (ON CA), 176 DLR (4th) 665, per Charron JA, at para 52, leave to appeal denied Poon, supra, at para 16
  12. ↑ Williams, supra, at paras 51 to 53
    Poon, supra, at para 16
  13. ↑ Williams, supra, at para 13
    R v Find, 2001 SCC 32 (CanLII), [2001] 1 SCR 863, per McLachlin CJ, at para 26

See Also

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