Share on Facebook The Jury: Part 2
The Jurors
The general rule is that a jury has twelve members. The Criminal Code allows for six-person juries in the Northwest and Yukon Territories, but this has been challenged as a violation of geographical equality rights.
Calling people to serve as jurors is one of the duties of court officials called Sheriffs.
Qualifications for potential jurors are set out by each province in its own legislation, such as British Columbia's Jury Act. Typically, a juror must be an adult Canadian citizen who lives in the province. Judges, lawyers, police and prison officers, politicians and employees of the federal Justice Department or provincial Attorney-General's ministry cannot serve as jurors. People with some disabilities or criminal records may also be disqualified, as may someone who does not speak the language in which the trial is going to be conducted.
Someone who is called to serve as a juror can apply to the Sheriff for an exemption. This might be on the grounds of religious belief, old age, or serious hardship that would be caused by having to serve. Also, there is usually a period of exemption after a person has served on a jury, during which he or she need not serve again. There can be no disqualification or exemption based on the person's sex.
Jurors are paid nominal amounts to cover their time and travel expenses, but for many people these amounts will not be enough to make up for lost wages and other expenses. Jury duty is a civic responsibility that is supposed to be accepted anyway, if at all possible.
The Panel
Potential jurors are selected, typically at random from the electoral rolls or some other register of residents, and are served with notices requiring them to attend at the courthouse at a particular time. In this way, the Sheriff assembles what is called the "panel" or "array".
The panel is supposed to be "representative" of the community. There has been a lot of debate over what that really means, and how to achieve it. Should it be representative of the neighbourhood where the accused person lives, or where the alleged crime occurred, or where the trial is being held, or more broadly representative of the province as a whole? How important are the factors of race, gender, income, sexual orientation, etc.? The consensus seems to be that truly random selection from a broad geographical area is probably the best approach. That still leaves potential problems, though, as some classes of people, notably natives and the poor, are not always well represented in lists of residents, such as telephone directories.
There is a very strict rule that no-one with an interest in the case may communicate with any person called for jury duty, either before or during the trial. Doing this is punishable as a form of contempt of court.
Selection from the Panel
In court, the names of the people on the panel are written on cards, shuffled together, and drawn at random by the court clerk, until enough have been called - allowing for a few rejections - to form a jury. When a member is called, but before he or she is sworn, there may be a "challenge" against that person sitting on the jury.
Any number of individual panel members may be challenged "for cause" by either side in the case. "Cause" generally means that the person might not be able to try the case fairly. The possible grounds are listed in s. 638 of the Criminal Code. There may be questioning of panel members on these topics, both by the judge and by the lawyers. A potential juror who has some personal connection to anyone with an interest in the case, or any personal experience that would make it difficult to try the case without bias, should make that fact known.
Challenges for cause by counsel for one side or the other are "tried" in front of a sort of mini-jury of two jurors. Someone who is successfully challenged is excused, and does not sit on the jury.
In addition, each side is allowed a limited number of "peremptory" challenges. These are challenges for which no explanation need be given. In a first degree murder (or high treason) trial, each side is allowed twenty peremptory challenges. Otherwise, if the maximum penalty for the most serious offence charged is more than five years' prison, each side gets twelve peremptory challenges, and if it is five years or less, the maximum number of peremptories by each side is four.
If more than one person is being tried, each is entitled to make the number of peremptory challenges that he or she would have had in a separate trial, and the Crown gets the same number as the total for all the accused [s. 634].
The panel members who get through the challenge process are sworn, and become jurors. Occasionally, the panel is all used up and there are still not enough jurors to make up a full jury. In that case, s. 642 allows the conscription of people from among bystanders in or outside the court. These extra people are called "talesmen". They are not subject to the qualifications listed in the provincial Jury Act.
Once the jury is complete, the twelve jurors will pick one of their number to act as foreman. This person will help direct discussions within the jury, and speak for it in court.
Discharge of Jurors
There must be twelve jurors at the start of the trial (which seems, from recent cases, to mean the point at which the accused is "put in charge of" the jury. After this point, though, the judge can discharge up to two jurors and continue with as few as ten, if there is good reason to do so. Sometimes this is because a juror falls ill, or there may be some pressing reason for him or her to be elsewhere (such as illness in the family, etc.). If no evidence has yet been given, it appears to be permissible for the judge, with the consent of the lawyers, to replace a discharged juror, but this is not required by law.
A juror can also be discharged because of being "contaminated" by communication with someone involved in the case. If this happens, the judge can question the remaining jurors to see if they have been affected, and can either continue with the trial or declare a "mis-trial". The law surrounding this kind of situation is, naturally, quite complex, as there are many ways in which concerns about the impartiality of a juror can come up.
If at any point the number of jurors falls below ten, there is a mis-trial. This means the whole trial process has to start over. As one way of avoiding this, the judge can adjourn the trial to give a sick juror time to get better [s. 645].
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FIRST LINE CRIMINAL LAW INFORMATION