Canadian Criminal Procedure and Practice/Trials/Juries/Jury Selection

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General Principles[edit]

Juries are to consist of "a representative cross-section of Canadian society". [1] As such an accused has no right to demand that the jurors be composed of a certain race or ethnicity.[2]

Jurors are presumed by their oaths to be impartial judges.[3]

Any legal errors in jury selection will require a new trial.[4] This includes errors of law by the judge or unreasonable exercise of discretion in managing the selection process.[5]

  1. R v Ironeagle, 2012 SKQB 324 (CanLII) at para. 5
  2. R. v. Kent, (1986), 40 Man. R. (2d) 160, (1986) 27 C.C.C. (3d) 405 (Man. C.A.) at p. 421 ("An accused has no right to demand that members of his race be included on the jury. To so interpret the Charter would run counter to Canada's multicultural and multiracial heritage and the right of every person to serve as a juror")
    R v Ironeagle, 2012 SKQB 324 (CanLII) at para. 5
  3. R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 SCR 1128 at para. 13
    R. v. Spence, 2005 SCC 71, [2005] 3 S.C.R. 458 at paras. 21-22
    R. v. K.(A.) 1999 CanLII 3793 (ON CA), (1999), 176 D.L.R. (4th) 665 (Ont. C.A.) at para. 52
  4. R v Barrow, 1987 CanLII 11 (SCC), [1987] 2 SCR 694 at p. 714
  5. R. v Barnes 1999 CanLII 3782 (ON CA), (1999), 46 OR (3d) 116 at para. 30, 138 CCC (3d) 500 (CA)

Jury Vetting[edit]

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
    R v Emms, 2012 SCC 74
    R v Davey, 2012 SCC 75
  2. Yumnu, Emms, Davey
  3. Yumnu at para. 66-67

Excusing Jurors During Selection[edit]

See also Canadian_Criminal_Procedure_and_Practice/Trials/Juries#Discharging_a_Juror

Excusing jurors
632. The judge may, at any time before the commencement of a trial, order that any juror be excused from jury service, whether or not the juror has been called pursuant to subsection 631(3) or (3.1) or any challenge has been made in relation to the juror, for reasons of

(a) personal interest in the matter to be tried;
(b) relationship with the judge presiding over the jury selection process, the judge before whom the accused is to be tried, the prosecutor, the accused, the counsel for the accused or a prospective witness; or
(c) personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.

R.S., 1985, c. C-46, s. 632; 1992, c. 41, s. 2; 2001, c. 32, s. 39; 2002, c. 13, s. 53.

CCC

The judge must vet the jury for hardship exemptions before beginning with peremptory challenges or challenges for cause. To do otherwise effectively reduces the number of challenges that each side may have.[1]

  1. R. v. Douglas, 2002 CanLII 38799 (ON CA)

Challenge for Cause[edit]

Under section 638(1)(b), a party may challenge a juror "for cause", alleging that the juror may not be indifferent. The test is whether there is "a 'realistic potential' that the jury pool may contain people who are not impartial in the sense that even upon proper instructions by the trial judge they may not be able to set aside their prejudice and decide fairly between the Crown and the accused …"[1]

The party challenging cause must establish that:[2]

  1. a widespread bias exists in the community; and
  2. some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.

These are the "attitudinal" and "behavioural" components to partiality.[3]

The purpose of challenge for cause is to screen out potential biases in juries.[4]

There is a presumption that jurors are capable of setting aside their views and biases in favour of impartiality between Crown and the accused and compliance with the trial judge's instructions. [5]

The fundamental issue on challenges for cause is whether the accused can receive a fair trial pursuant to s. 11(d) of the Charter.[6]

The judge has wide discretion to supervise the challenge.[7]


  1. R v Find 2001 SCC 32 at para. 31
  2. R v Find at para 32
  3. Find at para 32
  4. R. v Sherratt, 1991 CanLII 86 (SCC), [1991] 1 SCR 509 at p. 533
  5. R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863 at para. 26
  6. R. v. Bennight, 2012 BCCA 190 at 42
  7. R. v Hubbert (1975), 11 OR (2d) 464 at p.291
    R v Sherratt, 1991 CanLII 86 (SCC), [1991] 1 SCR 509 at 527
    R v Williams 1991 CanLII 86 (SCC) at 13 and 55

Questioning[edit]

The questions should be “relevant, succinct and fair” and avoid invading "the privacy of prospective jurors in an attempt to probe personal feelings, opinions, and beliefs".[1]

The ability to challenge opinions is limited. Often the questions are narrow enough only to be answered yes or no.[2]

  1. R. v Hubbert (1975), 11 OR (2d) 464, 29 CCC (2d) 279 at pp. 289-90 (CA), affirmed and adopted 1977 CanLII 15 (SCC), [1977] 2 SCR 267
    R. v Dhillon, 2001 BCCA 555 (CanLII), 2001 BCCA 555 at para. 53
    R v Williams 1991 CanLII 86 (SCC), [1991] 1 SCR 509 at para. 53
  2. e.g. R. v Sandham (2009), 248 CCC (3d) 46 at para. 3 (Ont.)
    R. v M.M., [2003] O.J. No. 5962 at para. 24 affirmed on other grounds 2007 ONCA 329 (CanLII), 2007 ONCA 329, 220 CCC (3d) 74

Static Triers[edit]