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2.2 Challenges for Cause – Procedure

Note[1]

(Last revised June 2012)

[1]              It is fundamental that a fair, impartial, and unbiased jury try any person charged with a criminal offence. As part of the jury selection process, each prospective juror will be asked (a) question(s) about whether (e.g., publicity, notoriety, bias) would affect their ability to judge (NOA) impartially. This is called “challenge for cause.” Here is what will happen.

[2]              The clerk will select at random two individuals who will decide whether a potential juror is impartial. These two individuals, called “triers,” will take an oath, and I will explain their duties to them.

[3]              The clerk will then select the numbers of ______(e.g., 20) potential jurors, who will come forward when their numbers are called. They will be asked one by one to take a seat in the witness box, take an oath or affirmation, and answer (a) question(s). The question(s) will not pry unduly into your privacy. Each person will be asked the same question(s).

[4]              I will then instruct the triers. They will decide whether the prospective juror has opinions about the case that they cannot set aside and that would prevent them from reaching a verdict based solely on the evidence at trial.

[5]              Once the triers have found a person to be acceptable, either counsel may still challenge that person. If not challenged, that person will then be sworn in by the clerk and will sit as a juror.

[6]              When the first juror is sworn, he or she will replace the first trier. As subsequent jurors are sworn, they will replace the triers who preceded them.[2]

[1] There are variations in the procedure followed by judges in cases that involve a challenge for cause. Some judges prefer that the challenge for cause take place in the presence of the other members of the jury panel. Other judges consider that it should take place in the absence of other jury panel members to reduce the risk that prospective jurors might tailor their responses to the questions to facilitate or avoid selection as jurors or to prevent contamination of the remaining jurors. The matter should be discussed with counsel before jury selection begins. Further, in some jurisdictions, in the interests of impartiality, the judge asks some or all of the questions.

If the challenge is based on pre-trial publicity, the other members of the panel should not be present. If the challenge concerns issues of race, the Supreme Court of Canada has suggested in R. v. Williams, [1998] 1 S.C.R. 1128, that the challenge should take place in front of the entire panel.

[2] There are two methods of conducting a challenge for cause. The first is that as each juror is selected, he or she replaces a trier. The second, on application by the accused, is to permit the same triers to decide all of the challenges: see s. 640(2.2). Where the second method is used, this instruction will have to be modified.