The Trial of the Truth of the Challenge for Cause

• Author: David M. Tanovich; David Paciocco; Steven Skurka
• Pages: 165-170

CHAPTER8

THE

TRIAL

OF THE

1RUTH

OF THE

CHALLENGE

FOR

CAUSE

8.1

SHOULD

THE

TRIAL

BE

CONDUCTED

IN

THE

ABSENCE

OF THE

SELECTED

JURORS

AND/OR

THE

JURY

PANEL?

In R. v.

English

(1993),

111

Nfld.

&

P.E.I.R.

323

(Nfld.

C.A.),

the

New-

foundland

Court

of

Appeal held that

it

would

be

preferable

for the

pro-

spective jurors

and

those jurors selected

to try the

case

to

remain outside

the

courtroom during

the

trial

of the

challenge, though

it did

recognize

that this

was not a

legal requirement.

According

to

some counsel

and

trial judges (see

the

approval

by

Justice

Then

(Ont. Gen. Div.) above

at

6.5), this

is the

preferred position strategi-

cally.

For

example,

Don

Bayne,

QC, is

strongly

of the

view that

if

prospec-

tive jurors watch

the

process, they will

be

able

to figure out

what

is

going

on and may

tailor their answers

and

demeanour

to get

onto,

or

off,

the

jury.

The

best

way to

ensure honest responses

is to ask

prospective jurors ques-

tions

they

do not

expect

to be

asked.

On the

other

hand, Austin

Cooper,

QC, has

suggested that

the

prospective jurors should remain

in the

court-

room during

the

trial

of the

truth

of the

challenge because,

after

observing

the

process, prospective jurors "tend

to

assume that

the

whole process

is

part

of the

system

by

which they

are

required

to be

selected

and do not

seem

to

resent it." A.M. Cooper, "The

ABCs

of

Challenge

for

Cause

in

Jury

Trials:

To

Challenge

or Not to

Challenge

and

What

to Ask if

You

Get

It"

(1994)

37

Grim.

L.Q.

62 at 69.

165