Peremptory Challenge (Prior to September 19, 2019): Difference between revisions

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==General Principles==
==General Principles==
{{seealso|Jury Selection}}
{{seealso|Jury Selection}}
::'''Section 269 of Bill C-75 Repealed s. 634 on September 19, 2019 removing pre-emptory challenges'''
:: '''NOTE: {{CanLIIR|Chouhan||2020 ONCA 40}} found that the provisions were not retrospective and only apply to proceeding commenced after the amendment date of September 19, 2019'''
Peremptory challenges refers to the ability for each party to veto a selected juror without the obligation of giving reasons for it.
Peremptory challenges refers to the ability for each party to veto a selected juror without the obligation of giving reasons for it.


{{quotation|
{{quotation1|
; Peremptory challenges
; Peremptory challenges
634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638 {{AnnSec6|638}}.
<br>
<br>
; Maximum number
; Maximum number
(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to
(2) Subject to subsections (2.1) to (4) {{AnnSec6|634(2.1) to (4)}}, the prosecutor and the accused are each entitled to
:(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;
:(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;
:(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or
:(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or
:(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).
:(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).


'''If 13 or 14 jurors'''<br>
; If 13 or 14 jurors
(2.01) If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.
(2.01) If the judge orders under subsection 631(2.2) {{AnnSec6|631(2.2)}} that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.
<br>
<br>
; If alternate jurors
; If alternate jurors
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<br>
<br>
; Supplemental peremptory challenges
; Supplemental peremptory challenges
(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.
(2.2) For the purposes of replacing jurors under subsection 644(1.1) {{AnnSec6|644(1.1)}}, the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.
<br>
<br>
'''Where there are multiple counts'''<br>
; Where there are multiple counts
(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.
(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.
<br>
<br>
'''Where there are joint trials'''<br>
; Where there are joint trials
(4) Where two or more accused are to be tried together,
(4) Where two or more accused are to be tried together,
:(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and
:(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and
:(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.
:(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.


R.S., 1985, c. C-46, s. 634; 1992, c. 41, s. 2; 2002, c. 13, s. 54; 2008, c. 18, s. 25; 2011, c. 16, s. 8.
R.S., {{LegHistory80s|1985, c. C-46}}, s. 634; {{LegHistory90s|1992, c. 41}}, s. 2; {{LegHistory00s|2002, c. 13}}, s. 54; {{LegHistory00s|2008, c. 18}}, s. 25;  
|[http://canlii.ca/t/7vf2#sec634 CCC]
{{LegHistory10s|2011, c. 16}}, s. 8.
{{Annotation}}
|[{{CCCSec|634}} CCC]
}}
}}


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|20 || high treason or [[Homicide (Offence)|first degree murder]] ||s. 634(2)(a)  
|20 || high treason or [[Homicide (Offence)|first degree murder]] ||s. 634(2)(a)  
|-
|-
|12 || offences with a maximum penalty greater than 5 years<ref>see also [[Offences by Penalty]]</ref> || s. 634)(2)(b)
|12 || offences with a maximum penalty greater than 5 years<ref>see also [[Offences by Penalty]]</ref> || s. 634(2)(b)
|-
|-
|4  || all Jury eligible offences with a penalty of 5 years or less<ref>
|4  || all Jury eligible offences with a penalty of 5 years or less<ref>
[[List of Straight Indictable Offences]]<br> [[List of Hybrid Offences]]</ref> || s. 634(2)(c))
[[List of Straight Indictable Offences]]<br> [[List of Hybrid Offences]]</ref> || s. 634(2)(c)
|}
|}


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</ref>
</ref>


'''Discretion to Give Additional Preemptions'''<br>
; Discretion to Give Additional Preemptions
A judge has no discretion to award any side additional peremptions due to a selected juror needing to be replaced during the selection process.<ref>
A judge has no discretion to award any side additional peremptions due to a selected juror needing to be replaced during the selection process.<ref>
''R v Brown'' (2005), [http://canlii.ca/t/1jtbg 2005 CanLII 3939] (ON CA), 194 CCC (3d) 76{{perONCA|Simmons JA}}
''R v Brown'' (2005), [http://canlii.ca/t/1jtbg 2005 CanLII 3939] (ON CA), 194 CCC (3d) 76{{perONCA|Simmons JA}}
Line 64: Line 69:
The limitation of 12 jurors for a trial on second-degree murder does not violate s. 7 of the Charter due to inequality with the number of peremptions available on a first degree murder trial.<ref>
The limitation of 12 jurors for a trial on second-degree murder does not violate s. 7 of the Charter due to inequality with the number of peremptions available on a first degree murder trial.<ref>
''R v Oliver'', [http://canlii.ca/t/1jspp 2005 CanLII 3582] (ON CA){{perONCA|Doherty JA}}
''R v Oliver'', [http://canlii.ca/t/1jspp 2005 CanLII 3582] (ON CA){{perONCA|Doherty JA}}
</ref>
; Retrospectivity
The removal of 634 is not strictly procedural and so applies only prospectively.<ref>
''R v Chouhan'', 2020 ONCA 40{{fix}}<Br>
</ref>
The right to peremptory challenges remains vested in those cases where, before the date of amendment, the accused is charged with an exclusive jurisdiction offence, a direct indictment has been filed, or where there is an election for trial by judge and jury.<ref>
{{ibid1|Chouhan}}
</ref>
</ref>


Line 75: Line 89:
</ref>
</ref>


There is a limited ability for the police to give opinion on jury selection that does not need to be disclosed due to the lack of reliability of the opinion and underlying information such as community reputation.<ref>{{supra1|Yumnu}}<br>{{supra1|Emms}}<br>{{supra1|Davey}}</ref>
There is a limited ability for the police to give opinion on jury selection that does not need to be disclosed due to the lack of reliability of the opinion and underlying information such as community reputation.<ref>
{{supra1|Yumnu}}<br>{{supra1|Emms}}<br>
{{supra1|Davey}}</ref>


Defence must disclose any information they know that may indicate a juror is partial or ineligible.<ref>
Defence must disclose any information they know that may indicate a juror is partial or ineligible.<ref>
{{supra1|Yumnu}} at para 66-67</ref>
{{supra1|Yumnu}}{{atsL|fvcdb|66| to 67}}</ref>


{{reflist|2}}
{{reflist|2}}

Revision as of 16:27, 2 March 2020

General Principles

See also: Jury Selection
Section 269 of Bill C-75 Repealed s. 634 on September 19, 2019 removing pre-emptory challenges
NOTE: R v Chouhan, 2020 ONCA 40 found that the provisions were not retrospective and only apply to proceeding commenced after the amendment date of September 19, 2019

Peremptory challenges refers to the ability for each party to veto a selected juror without the obligation of giving reasons for it.

Peremptory challenges

634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638 [challenge for cause – grounds].

Maximum number

(2) Subject to subsections (2.1) to (4) , the prosecutor and the accused are each entitled to

(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;
(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or
(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).
If 13 or 14 jurors

(2.01) If the judge orders under subsection 631(2.2) [power to swear more than 12 jurors] that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.

If alternate jurors

(2.1) If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror.

Supplemental peremptory challenges

(2.2) For the purposes of replacing jurors under subsection 644(1.1) [select replacement juror after discharge], the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.

Where there are multiple counts

(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.

Where there are joint trials

(4) Where two or more accused are to be tried together,

(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and
(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.

R.S., 1985, c. C-46, s. 634; 1992, c. 41, s. 2; 2002, c. 13, s. 54; 2008, c. 18, s. 25; 2011, c. 16, s. 8.
[annotation(s) added]

CCC

The number of challenges will vary on the type of charge before court. Under s. 634(2), the standard number of challenges consist of:

Number of Peremptory Challenges Offence(s) Code
20 high treason or first degree murder s. 634(2)(a)
12 offences with a maximum penalty greater than 5 years[1] s. 634(2)(b)
4 all Jury eligible offences with a penalty of 5 years or less[2] s. 634(2)(c)
Abuse of Process

An attempt by the Crown to strategically stand-aside all male jury candidates can be held as valid and not an abuse of process.[3]

Discretion to Give Additional Preemptions

A judge has no discretion to award any side additional peremptions due to a selected juror needing to be replaced during the selection process.[4]

Constitutionality

The limitation of 12 jurors for a trial on second-degree murder does not violate s. 7 of the Charter due to inequality with the number of peremptions available on a first degree murder trial.[5]

Retrospectivity

The removal of 634 is not strictly procedural and so applies only prospectively.[6]

The right to peremptory challenges remains vested in those cases where, before the date of amendment, the accused is charged with an exclusive jurisdiction offence, a direct indictment has been filed, or where there is an election for trial by judge and jury.[7]

  1. see also Offences by Penalty
  2. List of Straight Indictable Offences
    List of Hybrid Offences
  3. see R v Pizzacalla (C.A.), 1991 CanLII 7070 (ON CA), per Morden ACJ
  4. R v Brown (2005), 2005 CanLII 3939 (ON CA), 194 CCC (3d) 76, per Simmons JA
  5. R v Oliver, 2005 CanLII 3582 (ON CA), per Doherty JA
  6. R v Chouhan, 2020 ONCA 40(complete citation pending)
  7. Chouhan, ibid.

Jury Vetting by Crown or Defence

Background checks can be done by the police to ensure eligibility under the Criminal Code and provincial jury Acts. If information is found such as a criminal record, it must be disclosed to the defence.[1]

There is a limited ability for the police to give opinion on jury selection that does not need to be disclosed due to the lack of reliability of the opinion and underlying information such as community reputation.[2]

Defence must disclose any information they know that may indicate a juror is partial or ineligible.[3]

  1. R v Yumnu, 2012 SCC 73 (CanLII), per Moldaver J
    R v Emms, 2012 SCC 74 (CanLII), per Moldaver J
    R v Davey, 2012 SCC 75 (CanLII), per Karakatsanis J
  2. Yumnu, supra
    Emms, supra
    Davey, supra
  3. Yumnu, supra, at paras 66 to 67