Overview of the Jury Selection Process
| Author | David M. Tanovich; David Paciocco; Steven Skurka |
| Pages | 1-38 |
C H A P T E R 1
OVERVIEW
OF THE
JURY
SELECTION
PROCESS
l.l THE
PURPOSE
AND
ROLE
OF THE
JURY
Trial
by
jury
is a
fundamental part
of our
criminal justice system.
The
jury
is
"one
of the
great protectors
of the
citizen because
it is
composed
of
twelve
persons
who
collectively express
the
common sense
of the
community":
R. v.
Morgentaler,
jurist eloquently stated:
"Juries give
a
human side
to
criminal trials":
R. v.
at
113,
Gonthier
J. In R. v.
G.(R.M.)
(1996),
110
C.C.C.
(3d)
26 at 34
(S.C.C.),
Justice
Cory
noted
that
[t]he
jury system
is
clearly
a
significant
factor
in
many democratic regimes.
This
is
emphatically true
in
Canada.
It is
extremely important
to our
demo-
cratic society that jurors
as
representatives
of
their
community
may
make
the
decision
as to the
guilt
or
innocence
of the
accused before
the
court
based
solely
on the
evidence presented
to
them.
There
is a
centuries
old
tradition
of
juries reaching
fair
and
courageous verdicts.
That
tradition
has
taken
root
and
been
so
well
and
fearlessly
maintained that
it has flourished
in
this country.
Our
courts have very properly stressed
the
importance
of
jury
verdicts
and the
deference that must
be
shown
to
those decisions.
Today,
as in the
past, great reliance
has
been placed upon those decisions.
That
I
think
flows from the
public awareness that twelve members
of the
community have worked together
to
reach
a
unanimous verdict.
1
In
reaching
a
verdict, jurors have heeded
the
wisdom
of the
prophet Isaiah
whose advocacy
of a
reasoned approach
to
solving problems
has
echoed
through
the
ages
in the
moving
and
memorable words
"Come
now,
and let
us
reason together."
Isaiah
1:18.
Of
course,
it is the
great strength
and
vir-
tue of the
jury system that members
of the
community have indeed come
together
and
reasoned together
in
order
to
reach their unanimous verdict.
It is
truly
a
magnificent system
for
reaching
difficult
decisions
in
criminal
cases.
It has
proven itself
in the
centuries past
and
continues
to do so
today.
It has
also been held
that
the
jury
serves
collective
or
social interests
in
addition
to
protecting
the
individual.
The
jury advances social purposes primarily
by
acting
as a
vehicle
of
public
education
and
lending
the
weight
of
community standards
to
trial verdicts.
Sir
James Stephen underlined
the
collective interests served
by
trial
by
jury
when
he
stated:
. . .
trial
by
jury
interests large numbers
of
people
in the
administra-
tion
of
justice
and
makes them responsible
for it. It is
difficult
to
over-estimate
the
importance
of
this.
It
gives
a
degree
of
power
and
of
popularity
to the
administration
of
justice which could hardly
be
derived
from
any
other source.
(J.F.
Stephen,
A
History
of
the
Criminal
Law
of
England,
vol.
1,
(London: MacMillan, 1883)
at
573)
See
R. v.
Turpin,
at
1309-10,
Wilson
J.; see too R. v.
Lee
at
1399-1400,
Wilson
J., and R. v.
Bryant
(1984),
48
O.R. (2d)
732
(C.A.).
The
following rationales
for the
existence
of the
jury system were identified
in the
seminal decision
of
R. v.
Sherratt,
523-24:
the
jury serves
as an
excellent
fact
finder as a
result
of its
collective deci-
sion making;
the
jury acts
as the
conscience
of the
community
due to its
representative
character;
the
jury serves
as the final
bulwark against oppressive laws
or
their
enforcement;
and finally,
the
jury provides
a
means whereby
the
public increases
its
knowledge
of
the
criminal justice system
and by
doing
so
increases societal trust
in the
administration
of
justice.
See,
too,
Law
Reform Commission
of
Canada,
The
Jury
in
Criminal
Trials
(Working Paper
27)
(Ottawa: Supply
&
Services, 1980),
and R. v.
Turpin,
at
1309-10.
JURY
SELECTION
IN
CRIMINAL
TRIALS
2
In
providing
the
opportunity
for
criminal cases
to be
tried
by a
jury
of
twelve
individuals,
the framers of the
modern jury never intended
it to be a
tool
in
the
hands
of
either
the
Crown
or the
accused
but
rather envisioned
it to be a
trier
of
fact
that constitutes
"a
representative cross-section
of
society, hon-
estly
and
fairly
chosen":
R. v.
Sherratt,
524.
The
jury's role
in a
criminal trial
is to act as the
trier
of
fact.
It is
instructed
that
it
must
be
unanimous
in its
determination
of
whether
the
prosecution
has
proven
the
guilt
of the
accused beyond
a
reasonable doubt:
Harrison
v.
R.
juror's task
of
determining culpability
is
a
heavy one.
As
Justice McLachlin recognized
in R. v.
at
867:
The
jury system places
a
heavy responsibility
in the
hands
of
jury members.
Individuals
are
asked
to
make grave decisions bearing upon
the
rights
and
liberties
of
their peers.
It is a
burden which
may
prey heavily
on the
minds
of
some.
1.2
SECRECY
AND
JURY
DELIBERATIONS
A
juror's deliberations
are
shrouded
in
secrecy.
As
Chief Justice Dickson
remarked
in R. v.
Morgentaler,
We
cannot enter
the
jury room.
The
jury
is
never called upon
to
explain
the
reasons
which
lie
behind
a
verdict.
Indeed, section
649 of the
Criminal
Code
of
Canada,
R.S.C. 1985,
c.
C-46,
specifically
makes
it an
offence
for a
juror
to
disclose
any
information relat-
ing to the
jury's deliberations:
649. Every member
of a
jury who, except
for the
purposes
of
(a)
an
investigation
of an
alleged
offence
under subsection 139(2)
in
relation
to a
juror,
or
(b)
giving evidence
in
criminal proceedings
in
relation
to
such
an
offence,
discloses
any
information relating
to the
proceedings
of the
jury when
it
was
absent
from
the
courtroom
that
was not
subsequently disclosed
in
open
court
is
guilty
of an
offence
punishable
on
summary conviction.
As
Paul Quinlan notes
in his
excellent article "Secrecy
of
Jury
Delibera-
tions:
Is
the
Cost
Too
High"
(1993)
22
C.R. (4th)
127 at
128: "Although
s.
649 was
only enacted
in
1972,
the ban [on
disclosure
of
jury deliberations]
had
been enforced
at
common
law
through contempt
of
court proceedings
available
against both
the
juror
and the
questioner."
See R. v.
Dyson
(1971),
3
Overview
of the
Jury
Selection Process
To continue reading
Request your trial