Challenge for Cause -- Criminal Jury Trial

In the United States jury selection is a very significant part of a serious criminal trial. Close questioning of jurors is not uncommon.

Such questioning is almost unheard of in this country. This is because of our process for jury challenges -- Canada presumes jurors to be impartial unless an evidentiary basis is established showing otherwise. More generally, questions of jurors are limited to the bare minimum required to determine partiality.

Last week's Superior Court decision in R. v. Aziga, 2008 CanLII 29780 (ON S.C.) sets out the process for challenge for cause well:

THE LAW RELATING TO CHALLENGE FOR CAUSE

[8] Our criminal law is premised on the ability of 12 jurors to do their job with indifference as between the Crown and the accused. We do not start with the idea that it is up to the potential juror to demonstrate his or her impartiality. Our procedures in this respect differ from the American approach. In this country, people called for jury duty benefit from a presumption that they will do their duty without bias or partiality. In R. v. Spence, [2005] S.C.J. No. 74, Binnie J., on behalf of the Court, concluded:

Our collective experience is that when men and women are given a role in determining the outcome of a criminal prosecution, they take the responsibility seriously: they are impressed by the jurors' oath and the solemnity of the proceedings; they feel a responsibility to each other and to the court to do the best job they can; and they listen to the judge's instructions because they want to decide the case properly on the facts and the law.

Reference: R. v. Spence, [2005] S.C.J. No. 74, at paras. 21 to 22

[9] The presumption of impartiality may be rebutted by satisfying the trial judge that on a ground sufficiently articulated in the application, there is in the case of some potential jurors a realistic potential for...partiality (R. v. Sherratt, 1991 CanLII 86 (S.C.C.), [1991] 1 S.C.R. 509). In Sherratt, the articulated ground was pre-trial publicity. The Court stated the rule as follows:

The threshold question is not whether the ground of alleged partiality will create such partiality in a juror, but rather whether it could create that partiality which would prevent a juror from being indifferent as to the result. In the end, there must exist a realistic potential for the existence of partiality, on a ground sufficiently articulated in the application, before the challenger should be allowed to proceed. (Emphasis added)

Reference: R. v. Sherratt, 1991 CanLII 86 (S.C.C.), [1991] 1 S.C.R. 509, at 536

[10] Establishing a realistic potential for juror partiality generally requires satisfying the court on two matters:

(1) that a widespread bias exists in the community; and

(2) that some jurors may be incapable of setting aside this bias, despite trial safeguards, to render an impartial decision.

Reference: R. v. Find, [2001] S.C.J. No. 34, at para. 32

[11] The two components of the test involve distinct inquiries. They are not watertight compartments, but rather guidelines for determining whether on the record before the court, a realistic possibility exists that some jurors may decide the case based on preconceived attitudes or beliefs, rather than the evidence placed before them. Reference: R. v. Find, supra at para. 33.