The Criminal Code provides for several methods of trial, in particular trial by provincial court judge, trial by superior court judge alone, and trial by superior court judge with a jury (see the discussion in Chapter 3 at section A). Section 471 of the Code provides that every indictable offence shall be tried by a judge and jury "except where otherwise expressly provided by law." As a matter of fact, though, various Code sections readily provide other choices for every offence except those listed in section 469. The net effect is that a few offences, such as murder and treason, are required to be tried by jury, while a few indictable offences, such as theft not exceeding $5,000, cannot have a jury. But, for all other indictable offences an accused can choose between any of the three modes of trial.144Jury selection procedures involve a mixture of federal and provincial legislation. Section 92(14) of the Constitution Act, 1867145gives provinces jurisdiction over the administration of justice in the province. A jury of twelve members who will hear an individual trial come from a jury array, the larger number of prospective jurors summoned to the courtroom in order for the selection to take place.146In each province and territory, a jury act sets out the rules by which the jury array is summoned to the courtroom. These rules include such matters as qualifications and disqualifications for being a juror, sources
from which prospective jurors are to be selected, and compensation for jurors. Once the prospective jurors are actually in the courtroom in a criminal matter, the provisions of the Criminal Code then govern the actual selection of the jury. These rules deal with challenges for cause, peremptory challenges, excusing jurors, and so on.147
Although the province has jurisdiction over the administration of justice in the province, it is worth noting that section 626 of the Criminal Code specifies that jurors must be qualified in accordance with the laws of the province.148That section also states that, notwithstanding any law of a province, no person can be disqualified from jury service based on sex. It is generally accepted today that in any case the jury array
should be assembled from as broad and inclusive a source as possible within the province. This desire is manifested in different ways within various statutes. In Nova Scotia, for example, the legislation explicitly sets out that goal, stating that the list should be drawn from a "data base that to the extent possible shall include the entire population."149
Prince Edward Island, on the other hand, specifies that the Health Services Payment Act150 list should be used.151Manitoba contents itself with a direction to the Sheriff to use "appropriate lists."152Other provinces do not specify what source is to be used in assembling the array.
There is a reasonable degree of correspondence across the country concerning which people are qualified for jury service. Normally, a juror is required to be of the age of majority in the province, a resident of that province, and a Canadian citizen.153Disqualifications frequently appear to be based on two general justifications: (1) that the potential juror would face a conflict in serving on a jury, or (2) that what the juror does in everyday life is more important than, or for some other reason justifies a general exemption from, serving on a jury. For example, people involved in law enforcement are typically disqualified from jury service, though the exact list of which personnel do and do not qualify varies from province to province. Similarly, judges and lawyers are routinely excluded from juries, as sometimes are articled clerks or those who simply have a law degree. Disqualifications based on some type of criminal record are also routine, though, again, with variation as to how serious an offence it was and how recently it was committed. On a different note, jury acts regularly disqualify the governor general, the lieutenant governor, members of Parliament, members of the provincial government, senators, and so on. In some provinces, doctors, veterinarians, or other health professionals are also disqualified. In addition, most jurisdictions provide scope for an individual assessment of whether it will create a hardship for a particular person to serve on a jury, allow for exemptions based on reasons of religion or conscience, and exclude those with a physical or mental disability that would prevent the person from fulfilling the role of a juror.
Once the jury array has been assembled in court, the Criminal Code provisions govern the remaining selection procedures. It is possible for either the accused or the prosecutor to challenge the array itself, though this may only be based on "partiality, fraud or wilful misconduct on the part of the part of the sheriff or other officer by whom the panel was returned."154If the array has been accepted, then the selection procedure itself begins, by which the names of those present are pulled randomly from a box in accordance with the procedures set out in section 631 of the Code.155This procedure continues until, after the methods of excluding jurors (discussed below at section C(3)(b)) have been considered, enough jurors have been selected.
When there is a challenge for cause, there is a need for someone to decide that challenge. Where the challenge is based on the ground that the potential juror’s name does not appear on the panel, the trial judge decides the issue. In the case of any other challenge, two other persons will decide the challenge. In the usual case, the two most recently sworn jurors are the triers of the challenge (this is usually referred to as the "rotating triers" approach).156However, the Code was amended in 2008 to add a provision allowing the accused to request that all sworn and unsworn jurors be excluded from the courtroom during the challenge process. In that event, two unsworn jurors or two other persons who are present will be sworn in as triers of the challenge. Those two triers will then hear all the challenges for cause until a jury of twelve
has been selected, and will not themselves become part of the jury (this is referred to as the "static triers" approach).157These amendments have given rise to unexpected confusion in trial courts.
The purpose of the provision is to prevent potential jurors from becoming "contaminated" by hearing other challenges for cause and the issues which arise. The difficulty is that the new amendments make static triers mandatory when an order for the exclusion of sworn and unsworn jurors is made under section 640(2.1)- some accused want an exclusion order but want to retain rotating triers. Trial courts have disagreed over whether this is possible. One view is that a trial judge’s jurisdiction to order exclusion on any basis other than under section 640(2.1) has been ousted, and therefore that rotating triers are not available when there is an exclusion order.158A second view is that if a trial judge simply orders exclusion of unsworn but not sworn jurors, the order is not made under section 640(2.1) and so the rotating triers approach will remain in place.159A third view is that a trial judge retains the inherent jurisdiction to order the exclusion of both sworn and unsworn jurors without using section 640(2.1), and thereby retains the rotating triers approach.160The issue has not yet reached a court of appeal.161
If the entire jury array is run through without a sufficient number of jurors having been selected, section 644 of the Code allows the judge to order the sheriff to "forthwith" summon other jurors to the courtroom. As a practical matter, this can take the form of the sheriff simply going to the street and requiring passersby to attend for potential jury selection. These jurors, known as "talesmen," are then selected from in the same manner as the original array.
Criminal trials must commence with twelve jurors,162and in the ordinary course only that number of jurors will be selected. However, particularly given the possibility of pre-trial motions and voir dires that can take weeks or even months and occur without the jury, the actual
commencement of trial might occur some time after the jury has been selected. As a result, there is a risk that not all twelve jurors will be present when the trial begins.163Similarly, circumstances for some juror could have changed in the period between selection and commencement of trial. Section 644(1) of the Code allows a judge to discharge a juror based on illness or other reasonable charge, and a juror previously selected might seek to be excused under this section. At that stage the original jury array from which the jury was to be selected will no longer be present. Courts have dealt with this problem in a variety of ways in the past, and two recent Code amendments are aimed at the situation. First, under section 644(1.1), provided the jury has not begun to hear evidence, a judge can choose a replacement juror either by using the procedure for selecting talesmen or by selecting a juror from some other jury array that happens to be available.164Second, section 631(2.1) of the Code allows the judge to direct the selection of one or two alternate jurors at the time of the original selection of twelve jurors.165These alternate jurors then attend at the commencement of...