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The Jury System in Canada

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The Jury System in Canada JUICIO POR JURADOS Terry Skolnik This paper was written by University of Ottawa law student Terry Skolnik, under the supervision of, and with the assistance of, several counsel with the Public Prosecution Service of Canada: Sherri Davis-Barron, Counsel; Nancy L. Irving, General Counsel; and Noel Sinclair, Associate Chief Federal Prosecutor, Yukon PPSC. The Jury System in Canada Introduction of the jury, and jury procedures, have evolved significantly through the centuries. This article provides a brief overview of Canada’s jury system. The first part discuss- The historical role of the jury in England es the purpose of the jury, which has been was very different from what it is today. Origi- unique to common law countries,1 including nally, jurors were chosen from the local com- when trial by judge and jury is available to the munity and were themselves the source of in- accused. The second part describes who is eli- formation –sworn under oath to disclose what gible to sit on a jury in Canada, the pre-trial they knew of the facts.3 Prior to the Norman selection of a jury panel and the selection of Conquest, “‘rough justice’ [was] administered jury members at trial. The final part discusses by close neighbours in light of their knowledge how the Canadian jury renders a verdict. of local affairs and the personalities of those involved in them.”4 Their use to determine Part I: an overview of the jury facts became part of criminal proceedings system in Canada during the reign of Henry II in the latter part of the 12th century.5 The jury, in a sense, origi- A. The definition of a “jury” in Canada nally functioned as both witness and adjudi- and its availability in criminal trials cator. Through the centuries, however, jurors ceased to be witnesses; the jury came to func- Canada’s jury system derives most directly tion as a check on the power of the state, and from the English common law,2 which entitled to eventually represent the right to be tried in accused persons, in certain cases, to be tried serious cases by a jury of one’s peers, 12 or- by judge and jury. However, both the purpose dinary citizens, who are both impartial and randomly chosen.6 The right to be tried by judge and jury in 1 R. v. Bryant (1984) 48 O.R. (2d) 732 (Ont. C.A.). Canada for indictable offences was initially 2 Although a link between 12 triers and criminal justice can provided in the 19th century by the Criminal be identified as far back as King Alfred the Great in 879 A.D., and assemblies of up to 1,001 persons judged cases in fifth-century Athens, the direct origin of the jury trial in Canada can be traced to the time of William the Con- queror in 1066 A.D. See R. v. Bryant , ibid., for a general 3 R. v. Bryant, supra note 1. discussion of the history of the jury trial in England, the 4 Christopher Granger, Canadian Criminal Jury Trials, 2d United States and Canada. See also Sadakat Kadri, The ed. (Scarborough, Ont.: Carswell, 1997) at 13. Trial: A History, from Socrates to O.J. Simpson (New York: 5 R. v. Bryant, supra note 1. Random House, 2005), at 8 and 70. 6 Ibid. 16 Terry Skolnik Code of 1892.7 Although this right was codi- sufficient evidence to warrant placing the -ac fied in 1892, the right to trial by jury existed cused on his trial.”12 in the four original Canadian provinces before the provinces formed the Canadian Confed- It is important to understand that jury tri- eration in 1867.8 als are not available in all cases;13 their avail- ability depends on the nature of the crime that Since Confederation, the procedures re- a person is accused of committing. In some garding the functioning of the jury in Canada cases, such as murder, the accused is to be have evolved. Jury trial procedures are now set “automatically tried” by judge and jury unless out in Part XX of the Criminal Code. Modern a special application is made by the defence Canadian juries are composed of lay persons to be tried by judge alone with the consent of chosen at random, called upon to legally de- the Attorney General. In other cases, the ac- termine the guilt or innocence of an accused cused can elect to be tried by judge and jury, person charged with a serious crime.9 A jury is while, in the case of less serious offences,14 the usually composed of 12 persons,10 male or fe- accused must be tried by judge alone. Young male, who are to act as impartial triers of fact persons15 are also afforded the right to be tried in assessing whether the Crown has proven its by judge and jury in some cases, notably where case against the accused beyond a reasonable they stand accused of serious offences such as doubt. The number of jury members can be murder.16 In Canada, the Youth Criminal Jus- increased to 13 or 14 persons if the judge con- tice Act generally governs the prosecutions of siders it advisable in the interests of justice, young persons who are charged with criminal however, only 12 jury members may deliberate offences. A young person is defined as a per- in order to render a verdict.11 son who is at least 12 but under 18 at the time of the commission of the offence.17 When a person is tried by judge and jury in Canada for an indictable offence, he or she B. Right to trial by judge and jury in can elect to have a “preliminary inquiry.” A Canada preliminary inquiry refers to the process by which a provincial court judge will “inquire The right to be tried by judge and jury is into the charge to determine whether there is a constitutionally afforded right provided by subsection 11(f) of the Canadian Charter of Rights and Freedoms18 (hereafter, Canadian 7 S.C. 1892, c. 29. See also Granger, supra note 4, at 36. Charter), when the accused is charged with 8 Don Stuart, Ronald J. Delisle & Tim Quigley, Learning an offence punishable by a maximum of five Canadian Criminal Procedure, 10 ed. (Toronto: Carswell, 2010) at 884. years or more of imprisonment. 9 Ibid., at 6. 10 Criminal Code (R.S.C., 1985, c. C-46), s. 631(5). See also: Fair and Efficient Criminal Trials Act (S.C. 2011, c. 16), s. 7 which amended the Criminal Code to allow a judge to swear 12 Supra note 8, at 713. up to 14 jurors. This measure was introduced because the 13 In reality, the majority of criminal cases in Canada are not time required to hear criminal trials in Canada has steadily tried by jury; most are tried by judge alone. See David M. increased over the last decade, especially in large, complex Paciocco, Jury Selection in Criminal Trials: Skills, Science, cases. This can affect the jury’s ability to render a verdict, and the Law, (Concord, Ontario: Irwin Law, 1997) at p. 28. since it is not uncommon for jurors to be discharged in the 14 These are referred to as “absolute jurisdiction offences,” course of a trial for various reasons, such as ill health or due which are tried by provincial court judges. See s. 553 of the to some other unforeseen circumstance. This can result in Criminal Code. the size of a jury being reduced to below the Criminal Code 15 Youth Criminal Justice Act (S.C. 2002, c. 1), s. 2. minimum requirement of 10 jurors to render a valid verdict. 16 Ibid., s. 67. To address this concern, up to 14 jurors may be sworn, sub- 17 Supra, note 15. ject to a random selection process that determines, after the 18 Canadian Charter of Rights and Freedoms, Part 1 of the judge’s charge to the jury, which jurors will deliberate. Constitution Act, 1982, being schedule B to the Canada 11 Ibid. Act 1982 (UK), 1982, c 11. 17 JUICIO POR JURADOS i. Mandatory trial by judge and jury unless both can elect to be tried by judge and jury in Supe- attorney general and accused agree to trial by rior Court, or by judge alone in either Superior judge alone Court or Provincial Court.23 The majority of criminal offences provide the opportunity for The accused must, in some cases, be tried accused persons to choose how they will be by judge and jury in Superior Court unless tried. Where the accused has an election but both the Attorney General and the accused does not choose his mode of trial, he is deemed consent to trial by judge alone. This is the case to be tried by judge and jury.24 Furthermore, in for indictable offences (the most severe crimi- some cases, even where the accused elects to nal offences) mentioned in s. 469 of theCrimi - be tried by judge alone, the Attorney General nal Code,19 which include murder, conspiracy can require the accused to be tried by judge to commit murder, treason, intimidating Par- and jury where the crime is punishable by five liament or a legislature, and other offences ex- or more years of imprisonment.25 pressly mentioned within the section. Trial by judge and jury is mandatory for these crimes, PART II : Selection of jury unless both the Attorney General and the ac- members in Canada cused consent to the latter being tried by judge alone.20 Furthermore, although the right to be A.
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