The Jury

February 16, 2010

The jury system is one of the most fundamental institutions in Canada’s criminal justice system. Under the Canadian Charter of Rights and Freedoms every person has the right to be tried by a jury of their peers. The jury is seen as an impartial way of determining whether or not the accused person is guilty.

In the context of the trial of a criminal allegation, the jury is composed of 12 individuals called “jurors”. Jurors are selected at random from the population. In order to be eligible for jury selection an individual need only be a Canadian citizen over the age of 19. However, you will be disqualified from serving as a juror if you are a police officer, lawyer, trustee in bankruptcy, employee of the Ministry of the Attorney General or if you have been convicted of certain criminal offences within the last five years. You may also be exempted from jury duty if you meet certain qualifications such as if you are a student or if you suffer from a health condition that impairs your ability to be a juror. Exemptions are decided on a case-by-case basis. Jurors will then undergo a “jury selection process”. During the selection process, jurors may be asked specific questions by the Crown Attorney and the accused individual’s criminal defence lawyer. The lawyers will either approve the person for the jury or “challenge” their presence on the jury, in which case they will not be selected to sit in the jury. The twelve members of the jury are sworn to render an impartial verdict as to whether an individual is guilty or not guilty of a crime. The jury is charged with determining all questions of fact (such as “was the defendant in a certain location at a particular time” or “did the defendant in fact hit the victim”?) while the judge retains the duty of determining questions of law (such as “is the defence of self-defence available to the accused in these circumstances” “what kind of behaviour qualifies as negligence under the law”). The judge will instruct the jury on issues of law and the jury will try to determine the actual events that transpired and whether they give rise to the alleged offence.

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The jury will hear all the evidence which is admissible against the accused person and render a decision in the matter. They will sit in the courtroom at all times when admissible evidence is adduced, and will hear testimony from witnesses, view physical evidence, and receive instructions from the judge on the relevant law. At the end of the trial, the jury will be sequestered in a room to deliberate as to their verdict. The jury must reach a unanimous verdict. When a jury cannot reach a unanimous verdict it is known as a “hung jury”. In the case of a hung jury, a mistrial will be declared and the case may be retried before a new jury. In all other cases, the jury will render a verdict of “guilty” or “not guilty”. A person is never found to be “innocent” of a crime, the jury will simply conclude that there is not enough evidence to find the person guilty and render a verdict of “not guilty”.

During the course of the trial, jurors have a duty to avoid learning about the trial from outside sources such as the media, family or friends. They are not allowed to conduct their own investigation into the crime by speaking to witnesses or collecting evidence outside of the courtroom. They must decide the case based on the facts that have been presented to them during the course of the trial. During the deliberation process this duty is heightened. During deliberation, the jury 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 cannot ask to speak with the accused individual, the Crown Attorney, the criminal defence lawyer or the judge. If they do, this will be seen as a reversible error, meaning that the court of appeal will be forced to order a retrial. In Canada, jurors also have a legal duty to keep the contents of their deliberations secret. They cannot reveal the opinions of other jurors or anything that was said behind closed doors even after the verdict is rendered. This is not the case in the United States where jurors can talk about the contents of their deliberation after the final verdict is rendered. As such, you will sometimes hear American jurors speak to the media about the trials in which they’ve participated. In Canada, if a juror were to do so, he or she could be charged with contempt of court, a criminal offence.

A “head juror”, known as the “foreman”, leads the jury. The foreman is ordinarily chosen before the beginning of their deliberations. The foreman has the duty of asking questions on behalf of the jury. The jury may require clarification on a point of law from the judge and it will fall to the foreman to ask for this information. The foreman is also responsible for reading the verdict in open court once the jury has completed its deliberation. Every Canadian has a right to choose to be tried by a jury if they are accused of an indictable offence that carries a maximum penalty of five or more years of imprisonment. The process of choosing to be tried by jury is known an “election”. The election is a choice, and, in most cases, an accused person is free to choose to be tried by judge alone. An individual may not choose to be tried by jury if they are accused of a minor offence. That is because these offences are very common and do not result in harsh penalties. Though the jury system is important, it comes at great cost and can be very disruptive for the lives of the individuals who have been chosen as jurors. For this reason, under Canadian law, juries are reserved for the more serious indictable offences. For the most serious offences such as treason or murder the individual must be tried by both judge and jury under s. 469 of the Criminal Code of Canada, unless both the defendant and Crown Attorney agree that judge alone is sufficient. Electing to be tried by jury is a personal decision that you should discus with your criminal defence lawyer prior to making a formal election.

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