Steering Committee on Justice Efficiencies and Access to the Justice System

3.3 Jury selection

The Steering Committee's primay focus was the efficiency of the selection process as regards applications for exemption and the current procedure for deciding challenges for cause.

3.3.1 Procedure for exemptions

Both the Criminal Code and provincial jurisdiction over the administration of justice give the provinces authority to determine the qualifications for serving on a jury. They may also prescribe grounds for disqualification or grounds for applying to the sheriff to be excused. The measures contained in provincial laws apply to jury panels and not to the safeguards necessary to guarantee the impartiality of juries, which is a matter within the federal jurisdiction over criminal law. [39]

Most provincial laws set out grounds for disqualifications or provide for the possibility of obtaining an exemption by reason of status or function (lawyer, peace officer, minister of religion, public servant employed in the administration of justice, military personnel, etc.). They also provide for the possibility of obtaining an exemption on personal grounds related to health, home responsibilities or a special hardship not specifically listed. The procedure in s. 632 Cr.C. also allows the trial judge to excuse for “personal hardship or any other reasonable cause that, in the opinion of the judge, warrants that the juror be excused.” There seems to be duplication with the procedure for jury panels provided in provincial laws.

Furthermore, at this stage of the exemption procedure, the judge may adjudicate only cases of manifest partiality because of a close relationship with the judge, the prosecutor, the accused, counsel for the accused or a witness (s. 632(b)) Cr.C. Some observers point out that the involvement and role of counsel is rather narrow and suggest that applications for exemption should be an administrative process.

Discussion

In light of the preceding observations, it would be advisable to examine the contribution that other judicial officers (justice of the peace, clerk or other judicial officer) could have on the exemption procedure. These initiatives could maximize the contribution of other competent judicial officers for the purpose of allowing the trial judge to focus on critical stages and more contentious issues in the empanelling of an impartial jury (such as deciding challenges for cause).

If applicable, the conditions for the administrative processing of grounds for exemption, such as the necessary authority and independence to dispose of the applications (justice of the peace, clerk or other judicial officer), the oath to be sworn, the involvement of counsel, etc., should be identified. The exemption procedure in the Criminal Code could conceivably be conducted jointly with the processing of applications for exemption under provincial laws before a justice of the peace providing the guarantees of independence and impartiality within the meaning of Ell v. Alberta. [40]

Recommendation

10. Consideration should be given to making legislative amendments to encourage dejudicialization of the exemption process to a judicial officer in view of the existing provincial and territorial legislative provisions on jury panels setting out grounds for exemption.

3.3.2 The procedure for challenges for cause

A number of respondents to the consultation, both Crown prosecutors and the judiciary, unfailingly pointed out the formalism, arduousness and inconvenience of the current procedure under s. 640(2) Cr.C., as much as regards judges and counsel as regards the jurors themselves.

Under the current procedure, the last two jurors sworn must determine if a ground for a challenge is true. If no juror has been sworn, the court appoints for that purpose two persons present. This process is sometimes referred to the “triers process” or a “ mini jury”.

The case law teaches that:

  • the judge must explain to the triers their role and the rules they must follow; they must be instructed on the meaning of partiality and on the balance of probabilities standard;
  • decisions on the impartiality of a prospective juror must be unanimous; if triers do not agree, they must be replaced;
  • triers have a reasonable time to deliberate and may even withdraw from the courtroom for that purpose;
  • the triers' decision may be reversed by a peremptory challenge.

The courts have also decided that the process is mandatory and a judge may not depart from it, even with the consent of the parties, on penalty of having the verdict quashed on appeal:

" Logistics of the Process and Practical Considerations

[...]

19. Unquestionably, the prospect of repeating over and over again the same instructions to each new trier is a daunting one. Trial judges can be forgiven for viewing the process as cumbersome, repetitive, and wasteful and it is understandable that they would look for ways to speed it up. Regrettably, in some instances, this can lead to impermissible corner-cutting."[41]

Unfortunately, non-compliance with that procedure remains a relatively frequent ground for ordering a new trial. [42] The confusion that may arise when a judge excuses jurors during challenges for cause, as expressly permitted by s. 632 (“The judge may [...] order than any juror be excused from jury service whether or not [...] any challenge has been made in relation to the juror.”), also gives rise to grounds for an appeal.[43]

In addition, and without questioning jurors' capability to perform that task, some respondents to the consultation pointed out the inconvenience of the procedure for parties who must sometimes sacrifice a peremptory challenge to strike a prospective juror whom the judge and the parties would have found partial.

Discussion

With a view to achieving a rational use of judicial resources, and considering the importance of the jurors' duties in the remainder of the trial, the Steering Committee examined the advisability of amending the procedure and, if applicable, the best way to do so.

One option would be to give the judge the power to review the triers' decision. However, that would address only a part of the previously mentioned concerns and likely just make the process even more cumbersome. The option was therefore excluded.

Another solution could be to reassign the triers' power to decide challenges for cause to the judge. Or make such a reassignment conditional on the consent of the parties.

The feasibility of amending the procedure raises a question in terms of its constitutional validity. The question must be asked whether the involvement of jurors in the empanelling of an impartial jury is a fundamental characteristic of the institution as enshrined in section 11(f) of the Charter. A more dogmatic approach to the institution could suggest that the jury would no longer be a fundamental bulwark against the abuses of the system if it were constituted by the system rather than by peers. The question can be asked in the following terms: to what extent is the participation of the jurors themselves in the constitution of the jury related to the right to be tried by an impartial jury? Is the procedure in its current form an essential part of the institution? It is interesting to note that in England the power to challenge for cause was formerly exercised by the last two jurors to be sworn [44] but that it is now the judge's power, [45] as is the case in New Zealand[46] and most Australian states.

The abolition of the triers process in England over 50 years ago, as well as its abolition in other jurisdictions whose criminal justice system is modeled on the British system, is perhaps a sign of its obsolescence. It could serve to argue that the process is not an essential part of the jury trial as enshrined in the Charter and that abolishing it would not contravene s. 11(f). [47]

The argument that a jury selected from among one's peers offers a better guarantee of impartiality or contributes to the appearance of impartiality is questionable. Indeed, no one questions the reliability of the first two jurors because their impartiality was assessed by the judge and not their peers.

Recommendation

11. Section 640 Cr.C. should be amended to have challenges for cause decided by the judge rather than the two jurors who were last sworn.


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