[Note that there are jury trials and judge alone trials (the latter most frequent). Section 9 deals with both in general. This section focuses on some matters unique to jury trials. Where you have a jury trial you should consider both together.]
For certain criminal charges you may choose for your case to be decided by a jury. If you choose to have a jury they will vote and make the decision regarding your guilt. Your jury will usually be made up of 12 ordinary people selected from a panel of potential jurors. You and Crown counsel are present for the jury selection, and each have some role in that process. You should refer to the jury as “the jury” or as “members of the jury”.
If you have a jury, you will still have a judge who will be present throughout your trial. The judge will help with the procedures of court, make decisions about what evidence is allowed and ensure the trial is conducted fairly. They will help the jury understand the evidence, and how to deliberate regarding the evidence, but will not direct the jury on how to decide, as to whether you are guilty or not guilty.
- 8.1 Jury Selection
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The first step in your trial is to select a jury. A list of potential jurors is put together by court staff to form a “jury panel” or “jury array” that is intended to be as representative of the community in which the trial will be heard. From that list, individual jurors are randomly selected and called forward at a jury selection hearing. You and the Crown will select a jury of 12 people from the jury panel (in some cases up to 14 people – there are separate procedures for picking more than 12, and for releasing any more than 12 before deliberations – see Criminal Code, ss. 631 and 652.1). There are several ways a potential juror can be challenged.
Jury Panel Challenge
First, you or the Crown can challenge the entire jury panel, on the basis that the court staff who brought the jury panel in was biased, acted dishonestly or intentionally misbehaved in some important way. This challenge is called a challenge to the array and must be in writing and must explain the problem with the court staff’s conduct.
Peremptory challenge
Until September 2019, each of the Crown and an accused were given a number (depending on the seriousness of the charge) of “peremptory challenges”, where they could reject, up to the number limit, potential jurors as they were randomly selected, without giving any reason for the rejection. As a result of changes to the Criminal Code, these rights have been terminated. However, case law in some jurisdictions, pending appeal to the Supreme Court of Canada, has allowed these procedures to continue for cases that were in the system when the law was changed. If you believe this might apply to your case, it would be good to get legal advice, or discuss it with the Crown, who could refer you to those old sections of the Criminal Code. In the circumstances, further guidance will not be given in this Handbook.
Challenge for cause
A challenge for cause is when you challenge a potential jury member’s ability to serve as a juror because: the prospective juror is not eligible or able to be a juror by reason provisions of the jury legislation in your jurisdiction, or some relationship to people who are involved in the case; or not neutral and unbiased, by media publicity, or by their attitude towards people or issues because of potential prejudices.
The first type of challenge for cause if the potential juror is not eligible or able to serve as a juror:
- not qualified to serve as a juror;
- exempt or excluded from serving as a juror;
- does not speak the official language of Canada that the trial will be conduct in; or
- physically unable to carry out the duties of a juror.
There are no limits on the number of times that you can challenge for cause for these reasons.
Another type of challenge for cause is based on a concern that there is widespread bias in the community that could affect the ability of juries to be impartial. For a challenge for cause to be made for this reason, the judge must give permission in advance. Check the criminal rules in your jurisdiction to see what notice requirements apply if you want this type of challenge for cause process to be used.
If the judge allows this latter type of challenge for cause, the judge will ask the potential juror, who is challenged for cause, be called into a separate courtroom and sworn to tell the truth. The judge will then ask questions about whether the juror is biased. The judge will decide what question(s) will be asked of jurors who are called forward to determine this. The judge will ask the question(s) of each juror called forward. A sample question could be:
- “Would your ability to judge the evidence in the case neutrally and without bias or prejudice be affected by the fact that the person charged is a [modify as required: a black person / an indigenous person]?”;
or some other appropriate question.
After hearing the juror’s answer, the judge will decide whether the potential juror is acceptable to serve as a juror.
- 8.2 Jury Trial
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The judge’s role in a jury trial is to decide what law applies to your case, to deal with evidence problems, to make sure that the trial is properly conducted, and that the jury properly instructed. The purpose of judicial instructions to the jury is to educate the jury so that it can make an informed decision, but not to tell the jury what decision to make. Final jury instructions must leave the jury with a clear understanding of the factual issues to be resolved, the legal principles governing the factual issues, the evidence adduced at trial, the positions of the parties, and the evidence relevant to the positions of the parties on those issues.
The jury’s job is to decide whether you are guilty or not guilty. The jury will do this by considering the evidence presented in the trial and the judge’s instructions. Although the judge, in final instructions, will be commenting on the evidence after all of the evidence is finished, it is the jury’s view of the evidence that counts. The judge is the trier (decision maker) of the law and the jury is the trier (decision maker) of the facts.
From time to time, the jury may be asked to leave the courtroom so legal issues or problems with the evidence can be dealt with. This is to ensure the jury is not influenced by what is said and by any evidence that cannot be admitted.
Address to the jury
After all the witnesses have been called, you and the Crown will be able to make closing arguments (“closing addresses”) to the jury about what the jury’s decision should be. This is done orally, not in writing. However, you will want to make some notes to refer to as you speak.
The purpose of your closing address to the jury is:
- to outline and failure of the Crown to prove an element of the offence (e.g. failure to prove that the force applied in an assault charge was not with consent of the alleged victim);
- any defence you advance (e.g. alibi);
- to review the evidence that supports any defence you raise (e.g. your witness says you were not at the scene of the alleged crime at the time it was alleged to have been committed); and
- to point out the weaknesses (reasonable doubt) in the evidence led by the Crown.
If you have given evidence or asked any other witnesses to give evidence, you will give your address to the jury first. If you have not given any evidence, the Crown will go first and you will address the jury last. You must not refer to anything that has not come out in the evidence.
Final instructions (“Charge”) to the jury
The judge will give final instructions (or “charge”) to the jury after your and the Crown’s address to the jury. The charge to the jury is when the judge reviews the evidence heard during the trial and explains the law that relates to the evidence and to the charges against you. The jury will then leave the courtroom to consider the evidence and the law (“deliberate”), and make its decision.
Before the judge gives the charge, there may be a pre-charge conference in the absence of the jury. You and the Crown can request specific instructions to be included in the charge to the jury.
You will be given an opportunity after the jury has left the courtroom after the judge’s charge to point out any mistakes or to object to anything said in the charge by the judge to the jury. If the judge agrees with you, the jury will be called back into the courtroom and the charge will be clarified.