The Jury System

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The Jury System: Serving on a jury, along with testifying in court, is one of the most important contributions the public can make in ensuring justice is served. It is considered a civic duty of all Canadian citizens over the age of 18 to serve as a juror. A juror may be called for a coroner’s inquest, a civil or criminal trial. Under the Criminal Code, an accused in Canada has had the right to be tried by a judge and jury for indictable offences since 1892. A jury in a criminal trial is generally made up of 12 people who act as impartial triers of fact to determine if the Crown prosecutor has proven their case beyond a reasonable doubt. Jury trials are not available for all Criminal Code offences. Murder trials are automatically tried by a judge and jury unless the accused makes a special application to be tried by a judge.

What is a Jury?

A criminal court jury is made up of 12 Canadian citizens who are over the age of 18. They try an accused who has been charged with a crime. A jury is sworn to give a verdict based on the evidence submitted in court. A jury may also have two alternate jurors.

Canada's jury system derives primarily from English common law, which, in some instances, gives an accused criminal the right to be tried by a judge and jury. Before Confederation in 1867, the right to a jury trial existed in Canada, but it was not until 25 years later that it was codified. Jury trial procedures, which have evolved over the years, are contained in Part XX of the Criminal Code.

Subsection 11(f) of the Canadian Charter of Rights and Freedoms also gives an accused the right to be tried by a judge and jury if they are charged with an offence punishable by a maximum of five years or more in prison.

Although there is federal legislation governing juries in Canada, each province and territory has its own Jury Act that provides the procedure for selecting a jury in criminal and civil proceedings. Refusing to participate in the jury process can lead to fines or imprisonment.

A jury is chosen randomly from the provincial voters' list in the community where the trial is held. If you receive a jury summons, it does not automatically mean you will be selected to sit. You will be part of a jury panel, and your name will again be selected randomly for the chance to sit on the jury. You will get an opportunity to tell the judge why you cannot serve.

Who is Exempt From Jury Duty?

Just because you receive a jury summons does not mean you are eligible to serve. Each province or territory may have similar but different guidelines regarding exemptions. For example, if you served on a jury two years prior to receiving your next summons, you are excused in Alberta. In Ontario, it is three years.

Generally, there are a number of circumstances that exclude an individual from jury duty, including if you:

have been convicted of a criminal offence or those facing charges
are a police, sheriffs’ officer, correction officer, probation officer, firefighter
are a lawyer or law student
are an officer of the court
are a members of the Armed Forces
are a member of the Senate or House of Commons of Canada

You can be excused if serving would cause severe hardship to your health or livelihood. Depending on where you live, you could be excused for conscience or religious vows or if you cannot understand, speak or read the language the trial is being conducted in. You may also be eligible for a deferral if you have booked a vacation. If you have questions about your jurisdiction’s exemptions, you should consult the applicable Jury Act.

How is a Jury Selected?

If you are part of the jury panel and the judge deems you are not exempt from serving, the Crown and the defence lawyer can agree or challenge your participation. Section 629 of the Criminal Code allows the prosecution and the defence to question each jury panel member about specific subjects related to the offence or the accused. This is done to screen out any potential biases.

You could be challenged if you have a connection to anyone in the case, such as the judge or a witness. If you had exposure to pretrial publicity about the offence or had experience as a victim of a similar crime, you may also be excused.

In Canada, the law once allowed lawyers from either side to reject a certain number of potential jurors without explaining why. This was known as a peremptory challenge. However, the federal government amended the Criminal Code with the minister of justice stating peremptory challenges "led to their use in a discriminatory manner to ensure a jury of a particular composition." In R. v. Chouhan the Supreme Court of Canada agreed and ruled the change was constitutional. However, the Code still allows challenges for cause, which allows for the rejection of a potential juror for specific reasons.

What is a Jury’s Responsibility?

The jurors' primary responsibility is weighing all the facts in the case and deciding if the accused is guilty or not guilty. The judge presides over the law while the jury is the sole judge of the facts and must decide the case only on the evidence presented. Jurors are told they must accept the law as the judge explains it. They cannot use their own interpretation or rely on information about the law from any other source.

Jurors are permitted to take notes during the trial. They cannot interrupt the trial if they have questions, but they can pass a note to the foreperson to ask the judge to explain aspects of the case.

A jury is instructed to consider the evidence without sympathy or prejudice against the prosecutor, the accused or anyone connected with the trial. They must assess the evidence impartially and cannot seek outside information from the public, such as the media or the internet, to reach their conclusion.

A jury is expected to reach a fair verdict without being influenced by the accused's possible penalties. They must also remember that the first and most important principle of criminal law is that everyone is presumed innocent until proven guilty.

What is Jury Instruction?

After the final juror is chosen, the judge begins the trial by instructing the jury about the law and their responsibilities. The judge will outline the length of each sitting. Jurors are warned not to discuss the case with anyone outside the jury and not to come to any conclusions until all the evidence is presented.

After hearing the evidence, the prosecutor and defence attorney will give their final summations, laying out the points of their case. The judge then gives his final instruction, commonly known as charging the jury. During this instruction, the jurors are told how the law must be applied to the case. The judge outlines the facts the Crown must prove to win a conviction and explains how the law should be applied when reaching a verdict. Finally, the judge will discuss what verdicts are available and how the jury should approach their deliberations.

What is Jury Deliberation?

Simply stated, this is the part of the trial where the juryCitizens that decide on a person's guilt at trial decides on the accused’s guilt or innocence. To convict, jurors must unanimously agree that the Crown has proven guilt beyond a reasonable doubt. That does not mean beyond all doubt. If there is reasonable doubt, the jury must acquit. This doubt should not be based on prejudice or sympathy but on reason and common sense.

The jury will review all the evidence and decide which witnesses were credible. They will look for inconsistencies in the evidence and decide its importance. They will study the exhibits and decide how much weight to put on them.

The jury is sequesterThe time the jury spends alone considering its verdicted during their deliberations to free their verdict from outside influences. They may need clarification on some evidence and can send a note to the judge, who will consult with the Crown and defence attorneys to provide an answer. Sometimes, a jury cannot come to a unanimous decision, and the judge will encourage them to keep working. If they can still not reach a verdict after further deliberation, this would be considered a hung juryA jury unable to reach a verdict and the judge may declare a mistrial and order a new trial.

After reaching its verdict, the jury returns to open court, and the forepersonThe spokesperson for a jury gives their finding. The jury does not explain the reasons for the verdict.