Introduction

In Canada, anyone charged with a criminal offence for which they may be incarcerated for a period of more than 5 years has the right to a trial by jury. For those who are charged with a crime for which they could receive less than 5 years of incarceration, they have (in some cases) the right to choose a trial by jury, but are most often tried by a judge alone. This paper will explore the responsibilities of jurors and the procedures surrounding jury duty.

Responsibilities as a Canadian Citizen

Jury Duty

Every Canadian citizen has a legal obligation to appear for jury selection if they have been summoned to do so, as long as they are not exempted from jury duty for one of the reasons that will be detailed below. It is the legal responsibility of that person to respond to a summons within 5 or 10 days of receiving it, depending on the province that they are in, regardless of their eligibility or ineligibility to participate on a jury panel. If a person is called for jury duty, it does not necessarily mean that they will serve as a juror in a trial.

Eligibility

Every Canadian citizen and who has turned 18 years old in the year before a jury poll is eligible to serve as juror (for example, if you turned 18 in 2010, you would then be eligible for jury duty in 2011). The person also must live in the province for which they have been summoned to serve as a juror. Essentially, an 18 year old Canadian citizen is eligible and liable to serve as a juror in the Superior Court of Justice in the county/district in which they live.

Those people who are ineligible to serve as jurors vary slightly depending on which province they reside in. In general however, the following people are not eligible to serve as jurors:

  • Members of the Privy Council of Canada or the Executive Council of any province.
  • Members of the Senate, the House of Commons of Canada or the Assembly.
  • Judges and justices of the peace.
  • Every barrister, solicitor, and student-at-law.
  • Every legally qualified medical practitioner and veterinary surgeon who is actively engaged in practice, and every coroner.
  • Every person engaged in the enforcement of law including: wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff’s officers, police officers, firefighters who are regularly employed by a fire department for the purposes of subsection 41 (1) of the Fire Protection and Prevention Act, 1997, and officers of a court of justice.

Others may also be ineligible for jury duty depending on the province they reside in. In Ontario, for example, the following people are also not eligible to be a juror:

  • A person who is a witness or is likely to be called as a witness in a civil or criminal proceeding or has an interest in an action is ineligible to serve as a juror at any sittings at which the proceeding or action might be tried.
  • Every person who, at any time within 3 (5 years in some provinces) years preceding the year for which the jury roll is prepared, has attended court for jury service in response to a summons.
  • A person who has a physical or mental disability that would seriously impair his or her ability to discharge the duties of a juror.
  • Has been convicted of an offence that may be prosecuted by indictment, unless the person has subsequently been granted a pardon.
Hardship

Citizens who may endure undue hardship by completing jury duty may also be exempt from partaking in this obligation. While the circumstances for this type of exemption may vary from province to province as well, the province of New Brunswick outlines some of the common circumstances in which a person may be allowed to postpone or be exempted from their participation:

  • A person who is 70 years of age or over (65 in some provinces).
  • A person who is unable to understand, speak, or read the official language in which the proceeding is to be conducted.
  • A person who suffers from a physical, mental, or other infirmity that is incompatible with the discharge of the duties of a juror.
  • A person for whom service of 10 or more days would cause serious and irreparable financial loss.
  • A person for whom service on a jury would cause hardship because that person has the care during all or any part of the day of:
    • A child under 14 years of age,
    • A person who is infirm or aged, or
    • A person who is mentally incompetent,

How Juries Are Chosen

The Juror Questionnaire

To make a pool of people from which juries can be selected, the names of potential jurors are taken from the most recent voters list and are randomly selected to receive a juror questionnaire. The questionnaires, when returned, are then used to determine whether or not the person may be considered for jury duty. The questionnaires ask the selected person about their employment, criminal record, language abilities, physical or mental issues, and other eligibility issues. The questionnaires are simply used to make a pool of eligible people who may be called to be jurors. If you fail to return the questionnaire within the specified time frame of 5 or 10 days or knowingly provide false information on it you may be liable to a fine of up to $5,000, 6 months in prison, or both.

The Jury Selection Process

Once a pool of people eligible to serve as jurors is established (this is called the jury roll), a set number of names determined by the sheriff will be called for selection. The number of people who will be called for selection depends on the province. The sheriff compiles the sets, or panels, of potential jurors that may be called for selection. Once the sets have been complied, the sheriff will send notices approximately 3 weeks in advance of the date in which the jurors in the set will need to be in attendance at the court.

On the date of selection, the clerk of the court will have all of the names of the jurors, their place of residence, occupation, and the number that they were given on the jury roll on cards or papers which will be drawn from a box. The clerk will draw one name at a time until the appropriate amount of jurors (usually 12 in the case of criminal trials) is chosen. Also, if it is deemed necessary by the judge, one or two alternate jurors may also be chosen. The first 12 people called will not necessarily be those who will sit on the jury however, as both the defence and the prosecuting lawyers can challenge the selection of a juror in the two ways that will be discussed shortly. As people are challenged and removed, the clerk will continue to call the names of potential jurors and swear them in until 12 suitable jurors have been chosen.

Peremptory Challenges

Peremptory Challenges are used by lawyers in the first stage of the selection process. One of the lawyers, either defence or prosecution, can challenge a prospective juror peremptorily by simply saying “challenge.” At this point in the selection process, the challenging party is not required or expected to give a reason for challenging a specific person. However, under section 626 (2) of the Criminal Code of Canada, no person may be disqualified, exempted, or excused from serving as a juror in criminal proceedings because of his or her sex.

These types of challenges are limited based on the types of offences and the number of accused persons who will be tried. Section 634 of the Criminal code of Canada outlines the maximum number of peremptory challenges that are allowed in different circumstances. Where the accused is charged with high treason or murder, the prosecution and the defense are both entitled to 20 peremptory challenges. If the accused is charged with an offence that is not high treason or murder, and they may receive a sentence of 5 years of imprisonment or more, each party is entitled to 12 peremptory challenges. In any other case where a jury will be used, each party is entitled to 4 peremptory challenges.

If the judge has ordered that alternate jurors be chosen, the number of peremptory challenges available to the prosecution and the defence is then raised by one for every alternate juror to be chosen. Also, if a juror needs to be replaced or any reason, the parties are then entitled to one peremptory challenge for each juror that is to be replaced. If it happens that there are two or more charges in an indictment that will be tried together, the lawyers are each entitled to the greatest number or challenges available for the greatest offence. For example if a person has one count of murder and another count of armed robbery, the two parties would each have 20 peremptory challenges because that is the greatest number available according to the charges which are against the accused (20 for murder, 12 for armed robbery).

If there is to be a joint trial where two or more accused are to be tried concurrently, each accused (defense) is entitled to the number of peremptory challenges that each accused person would have received if they were tried alone. For example if two people are accused of murder and they are to be tried together, the number of peremptory challenges available to the defense is 40 (20 challenges for each accused person). The prosecution is entitled to the total number of peremptory challenges available to all of the accused (which is essentially the same number as the defense).

Challenge for Cause

The second type of challenge that either the defence or the prosecution can use is a called a challenge for cause. At the second stage of selection, after the first initial 12 people have been selected, the two parties can challenge a juror if they believe that, on the basis of one or more of the following, that the juror may be partial, fraudulent, or have wilfully misconducted themselves. For this type of challenge, the party needs to specify the reason that they have challenged the juror. Those grounds on which either of the parties may challenge a juror are:

  • the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to;
  • a juror is not indifferent between the Queen and the accused;
  • a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months;
  • a juror is an alien;
  • a juror, even with the aid of technical, personal, interpretative, or other support services provided to the juror under section 627, is physically unable to perform properly the duties of a juror; or
  • a juror does not speak the official language of Canada, that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.

No other challenge for cause can be made for any other reason other than those which have been mentioned here. The challenge may be denied however, in that the other party may argue that the ground is not true. If this happens, the 2 jurors who were sworn in prior to person who is being challenged will be sworn to determine whether the ground is true. However, the accused/defence may make an application that all of the jurors be excluded from the court room until it is determined whether the ground of the challenge is true. This happens if the court is of the opinion that it is necessary to ensure the impartiality of jurors. If it determined that the challenge will be sustained, the juror will not be sworn, but if the finding is that the ground of the challenge is not true, the juror will be sworn. It should be noted that these types of challenges are not used very often. Once 12 jurors and any alternate jurors have been sworn and neither the accused nor the prosecution would like to challenge any of the selected people, these people will then make up the jury that will hear the trial of the accused.

The Trial

Once a jury has been selected, they hear the trial of an accused person and are charged with the task of determining whether or not the accused person is guilty. Before a trial begins the judge will give the jury instructions regarding their duties as a juror. This information will tell the jurors about what to expect during the trial, the hours they should expect to be in court, and other administrative matters.

One of the main concerns that jurors have when participating in jury duty is how it will affect their employment. The legislation governing jury duty and employment is provincial and therefore varies across the country. Generally, employers are required to give employees time off to attend jury selection and to serves as jurors. Employers are not required to pay the employees for this time away from the work place, however, as they are usually considered to be on unpaid leave. Although the employee is not paid for the time that they are away and the employer is not legally obligated to provide for those lost wages, the employee is still considered to be continuously employed during their time as a juror. This is important because it means that participating as a juror will not affect calculations regarding annual vacation pay, termination entitlements, pension, medical or other benefits, nor will it change the conditions of the employment. Essentially, when you return to work it can be generally expected that you will return to the same position or a comparable position. In most provinces the employment status of a juror cannot be changed or terminated without the juror’s consent while they are on jury duty. The members of a jury also usually receive a fee for each day that they serve as a juror. For example, in Alberta, jurors receive $50 for each day of their jury duty. In this province, jurors are also reimbursed for reasonable travel expenses and for accommodation expenses if they must stay overnight (this must be approved by the Jury Management office) because they live out-of-town.

Responsibilities as a Jury Member

As a member of a jury, your ultimate responsibility is as a trier of fact. Jurors must determine what the facts of the case are and whether or not they provide enough evidence to prove that the defendant had indeed committed a crime. That is, juries will hear all of the evidence and testimony presented for both the defense and the prosecution and will then determine which of facts that have been presented are true or not. The jury must determine whether the prosecution has presented enough evidence to prove that the accused is guilty beyond a reasonable doubt.

It is also the responsibility of every member of the jury (as well as any person providing technical, personal, interpretive, or other support services to a juror with a physical disability) to not disclose any information relating to the proceedings of the trial or jury that was not disclosed in open court. Any juror or support person who discloses such information is guilty of a summary offence. The only circumstances in which information of this sort could be disclosed would be for the purposes of an investigation of an alleged offence under subsection 139(2) (wilful attempt to obstruct, pervert or defeat the course of justice) in relation to a juror, or for giving evidence in criminal proceedings for such an offence.

Communications with Jurors

It is against the law for any counsel or witness to communicate with a juror, regardless of whether the juror has been sworn, discharged, or summoned to serve. This is considered to be an inference with the administration of justice. If they do so, the penalties range from the discharge of the juror, a citation for contempt of court, or a mistrial.

Separation

In the Criminal Code of Canada, section 647(1) states that the judge may at any time before the jury retires to deliberate its verdict, permit the jury to separate. Subsection (2) states that “where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.” Essentially, a judge may order a jury to be kept separate from other members of society until the end of the trial. In practice, however, this rarely happens. Most trials in which a jury will be used take longer then one day, therefore in most cases the jury is free to go home at the end of the day as long they do not discuss the case with anyone. If there is a breach of this process, the validity of the proceedings is not necessarily affected. If a failure to comply with the judge’s order for jurors to be separated is discovered before the jury returns with its verdict, they judge will determine if there has been a miscarriage of justice. If this is the case, the judge may then order the jury to be discharged and will give directions for a new trial to take place either right away or at some point in the future.

Deliberation

Before a jury retires to determine a verdict, the judge charges them. The judge explains what relevant law they are to use when determining a verdict and also the types of verdicts that they may return (guilty or not guilty). After the judge gives his or her instructions to the jurors, the jurors then retire to a separate room where they consider the verdict. At this point the jury is no longer allowed to speak to anyone outside of the jury room with the exception of a court appointed officer; juries in Canada are always sequestered during deliberations. They cannot have contact with any individual other than the other jurors. They are denied access to the media and cannot even phone family or friends until a verdict has been reached. They also cannot speak with the accused individual, the Crown Attorney, or the criminal defense lawyer; doing so could result in the judge ordering a new trial.

Before beginning their deliberation, the jury often appoints a head juror or foreperson to lead the jury. This person is responsible to direct deliberations, to ask questions or for clarification from the judge on behalf of the jury, and to read the verdict in open court once a decision has been made. If the jury cannot reach a unanimous decision of guilty or not guilty the jury is said to be “hung.” If this should happen and the judge determines that further detention of the jury would be useless, he or she may direct that a new jury be empanelled, or may adjourn the trial if he or she determines that justice requires it.

During the time that the jury is in deliberation, they will be provided appropriate refreshments and accommodations. Sometimes they may have to deliberate for more than one day, in which cases the jury will be given accommodations in a nearby hotel or other appropriate lodgings where they will continue to be kept separate from all other persons.

After the Trial

In some countries, such as the United States, it is permitted for jurors to discuss the facts of the case and their reasons for their verdict after a trial has been completed and the verdict given. In Canada however, jurors are not allowed to reveal such information. They cannot discuss anything that was said in the jury deliberation room with anyone, even after a verdict has been given. Any juror who does so may be charged with contempt of court, which is a criminal offence. This also applies to members of a jury which are “hung”, meaning that even if the juror was a member of a jury which did not reach a verdict, they are still not allowed to discuss any of the proceedings or deliberations that took place during their time as a juror.

Conclusion

Throughout the history of the jury, many citizens have had mixed feelings about its role in the criminal justice system. Some argue that juries are undemocratic bodies and have hindered the achievement of important state policies, a concern that has actually lead to a decline in the use of juries over the past 2 centuries (Brown, 2009). While it is true that cases tried by jury and the number of people being called to perform jury duty have declined, juries still play an important role in the justice system. Every Canadian citizen living in Canada who meets the eligibility requirements is liable for jury duty. This legal obligation must be carried out unless performing this duty will cause undue hardship for you or for someone who is dependent on you.

The exact processes and methods of jury selection are provincially regulated and therefore may differ slightly from what is stated in this article. If you still have questions about what you should expect or what to do when you receive a juror questionnaire or other paperwork, contact your local sheriff’s office for assistance. Additional information can be found in the websites, articles, and books listed below.

Alberta Court Services. (n.d.) Juror Fees and Expenses. Retrieved from on December 17, 2010 at http://www.albertacourts.ab.ca/CourtServices/JuryDuty/FeesandExpenses/tabid/247/Default.aspx

Brown, Blaske R. (2009). A Trying Question: The Jury in Nineteenth-Century Canada. University of Toronto Press: Toronto.

Canadian Centre for Elder Law. (2008). Employment Leave for Family Care giving. Retrieved from http://www.bcli.org/ccel/projects/family-caregiving/chapter3

Canadian Judicial Counsel. (2010). Instructions Relating to the Jury Selection Process. Retrieved from http://www.cjc-ccm.gc.ca/english/lawyers_en.asp?selMenu=lawyers_pmf_juryselectionprocess_en.asp

Department of Justice. (2009). Canada’s System of Justice: Jury Duty. Retrieved from http://www.justice.gc.ca/eng/dept-min/pub/just/09.html

Golish, Kenneth. (2003). Jury Selection in Canada. Retrieved from on December 17th, 2010 at http://www.golishlaw.com/crimlawt/juryselt.htm

Government of New Brunswick. (2004). Court of Queens Bench: Jury Information. Retrieved from http ://www.gnb.ca/cour/04CQB/juryINFO-e.asp

Government of Ontario. (2010). Juries Act. Retrieved from http://www.e-laws.gov.on.ca/html/statutes/english/elaws_statutes_90j03_e.htm#BK7

Manitoba Courts. (2010). Serving as a Juror. Retrieved from http://www.manitobacourts.mb.ca/jury_duty.html#procedure

Ontario Ministry of the Attorney General. (2010). General Information about the Jury System in Ontario. Retrieved from http://www.attorneygeneral.jus.gov.on.ca/english/courts/jury/geninfo.asp

Sands, Earl. (n.d.). Canadian Jury Duty. Retrieved on December 15th, 2010 from http://www.canadianlawsite.ca/jury-duty.htm#i

Fire Protection and Prevention Act, 1997

Charter of Rights and Freedoms, 1982

Criminal Code of Canada, 2010, § 626-654.