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Changes to the Jury Selection Process

Toronto defence lawyers

  • With Bill C-75 the  jury selection is to be significantly changed.
  • Currently, both the Crown and Defence  are given the same number of preemptory challenge to be employed during the jury selection process.
  • Peremptory challenges are defined as
    a defendant’s or lawyer’s objection to a proposed juror, made without needing to give a reason.
  • Peremptory challenges are used to exclude potential jurors without explanation or reason.
  • Both Crown and defence counsel are given the name, age and job of the potential juror for consideration.
  • Should, based upon that information and the appearance of the potential juror, either Crown or defence counsel determine that they do not wish this proposed juror to be a juror, they can eliminate them with out explanation using one of their peremptory challenges.

Criminal Code: Peremptory Challenges

634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
Maximum number
(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to
(a) twenty peremptory challenges, where the accused is charged with high treason or first degree murder;
(b) twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or
(c) four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).
If 13 or 14 jurors
(2.01) If the judge orders under subsection 631(2.2) that 13 or 14 jurors be sworn in accordance with this Part, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors.
If alternate jurors
(2.1) If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror.
Supplemental peremptory challenges
(2.2) For the purposes of replacing jurors under subsection 644(1.1), the prosecutor and the accused are each entitled to one peremptory challenge for each juror to be replaced.
Where there are multiple counts
(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.
Where there are joint trials
(4) Where two or more accused are to be tried together,
(a) each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and
(b) the prosecutor is entitled to the total number of peremptory challenges available to all the accused.
R.S., 1985, c. C-46, s. 634; 1992, c. 41, s. 2; 2002, c. 13, s. 54; 2008, c. 18, s. 25; 2011, c. 16, s. 8.

(source criminalnotebook.ca)

  • Typically, peremptory challenges are employed by either Crown or defence counsel to disqualify jurors who are perceived to be more sympathetic to one party or another based upon their sex, gender, age or visible racial identity.
  •  Bill C-75 aims to have more diverse and equitable juries  by eliminating peremptory challenges during the jury selection process.
  • This has bee partially in response to the R. v. Garald Stanley decision. Mr. Stanley’s acquittal highlighted that peremptory challenges can cause under representation of visible minorities on jury panels.
  • Many feel that it’s in the best interests of fundamental justice for juries to be diverse and representative of society and that jury reform is long over-due and that the purposed changes are necessary to meaningfully address systematic racism.
  • This criticism is particularly true when Indigenous people are before the court in the criminal justice system.
  • Some have suggested that peremptory challenges should not be entirely  eliminated, but rather restricted to some degree.
  • Know your rights! Contact Kostman and Pyzer, Barristers today for your free consultation!
14 Jun 2018

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