Challenge for Cause

• Author: Steve Coughlan/Alex Gorlewski
• Pages: 310-315

310 The Trial Process / Jury Selection

3.2(b) Challenge for Cause

Does one party wish to challenge for cause?1

Does the other party wish

to challenge for cause?2

Does the opposing party

concede the challenge?3

No Yes

Yes

Does the trial judge accept that a basis

to make a challenge exists?4

No

Juror not excluded for cause Juror excluded for cause

YesNo

Do the triers of the challenge

find the challenge true?5

No Yes

No Yes

There are three methods by which a member of the jury panel (that is, the

group summoned to court and from whom the jury will be chosen) might end

up not on the jury: through being excused by the judge, by means of a chal-

lenge for cause, or by a peremptory challenge (see Chart 3.2(a), Jury Selection).

Of those three methods, challenge for cause is the most controversial. This

chart therefore returns to the portion of Chart 3.2(a) dealing with challenges

for cause in order to pursue the issues in greater detail.

1. DOES ONE PARTY WISH TO CHALLENGE FOR CAUSE?

Section 638 of the Criminal Code, RSC 1985, c C-46 [Code] sets out the grounds

upon which a juror can be challenged for cause. The Crown and the accused

are entitled to an unlimited number of challenges for cause, but only on one of

the grounds set out in ss 638(1)(a)–(f). Section 638(1)(a) allows a challenge on

the basis that the juror’s name is not on the jury panel. Sections 638(1)(c)–(f)

allow challenges based on what are best considered qualications for being

a juror at all (though for the most part, this is a matter in provincial jurisdic-