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What Is A Jury Trial & Can I Deny One?

Posted on March 23, 2021

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A jury trial, or otherwise known as a trial by jury, is part of Canada’s criminal proceedings. Jury trials come from the English common law. An accused person in English common law could request to be tried by a judge and jury. Canada initially introduced the right to be tried by judge and jury in the Criminal Code of 1892.

Jury trials involve a bench of 12 jurors chosen randomly to be impartial and give their ruling during a severe offence trial. Jurors must give their honest opinion and rule on the evidence and testimony they hear during the trial. People sometimes refer to the jurors as the “accused’s peers”. Some believe that jurors are often more fair and sympathetic towards the accused.

While a jury panel rules on whether or not the accused is guilty or not guilty, it is ultimately up to the judge to pass the final judgment and charges.

When someone is tried by a judge and jury, they can request a preliminary inquiry. This allows a provincial court judge to look into the case’s particulars and see if there is enough evidence to warrant going forward with a trial.

Can I Deny A Jury Trial For My Criminal Case?

The short answer is, no; you cannot deny a jury trial. However, in Canada, you have the right to request a jury trial when you are facing a serious criminal charge. When you face charges for a crime that can have a prison sentence of five years or more, you have the right to request a jury trial in your criminal proceeding. Young people accused of a serious offence, such as murder, can also request a jury trial.

If the prosecutor moves to request a jury trial, and the judge agrees, you may not decline it. However, the defence can apply to the judge to be tried by the judge alone. This is referred to as a bench trial.

Offences With Mandatory Judge & Jury

Some criminal trials immediately get tried by the judge and jury. These offences include charges for murder, conspiracy to commit murder, treason, intimidating Parliament or legislature and other crimes mentioned in section 469 of the Criminal Code. Less severe offences must only be tried in front of a judge, and there is no option for a jury trial. An example of a less serious offence would be theft under $5000.

If you are facing charges for an offence that is not explicitly mentioned in sections 469 or 553 of the Criminal Code, you can elect for a jury or bench trial. Yet, even if the accused elects for a bench trial, the Attorney General can require a jury trial. Additionally, in cases where the accused has a choice for mode of trial and elects not to make one, they end up in a jury trial.

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How Do They Pick Jurors?

Jury members are selected at random from the local community where the trial is going to be held. The idea is to pick jurors with no personal connection to the case, the state, the accused or the complainant. There is a two-tier system in selecting jurors to make sure the right people are chosen for this process.

The first step of jury selection is to select potential jurors from a list of eligible candidates at random. This list is commonly referred to as a jury list or roll. It has the names of people in a specific judicial district and are drawn from voter’s or elector’s lists. In most Canadian provinces, you must be over 18 to be eligible for jury duty. These potential jurors are sent jury notices.

The second part of the process involves an in-court selection of jurors. The potential jurors must then present themselves to the court. The jurors’ information is written on cards and randomly drawn until the numbers required for a full jury are reached. Because some jurors will be excused, challenged or asked to stand by, there will typically be more people than the required 12 for a jury panel.

Why Are Jurors Excused Or Challenged?

Jurors can be excused even if they are not challenged. If the judge has concerns that the juror may have a personal interest in the matter being tried or a relationship with anyone involved in the criminal proceeding, the juror will be excused. Lastly, if the juror has a personal hardship, they can also be excused.

The Crown prosecutor also can challenge the jurors. There are three ways to challenge potential jurors:

  • The Prosecutor Can Challenge the Entire Panel
  • A Peremptory Challenge Can Challenge Individual Members Of The Panel
  • Challenge For Cause
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The prosecutor can challenge the entire panel. We often refer to this as a “challenge to the array”. The challenge can be for partiality, fraud, or willful misconduct on the part of the sheriff or officer by whom the panel returned.

Depending on the criminal offence that resulted in the trial, both the prosecutor and defence have a specified number of peremptory challenges. The prosecutor or defence must make the challenge before a juror is sworn in. Lastly, there is a challenge for cause.

There are six reasons why the defence or prosecution may challenge a juror for cause. The Criminal Code lists these reasons extensively. Common challenges for cause include pre-trial publicity that may have influenced the jurors regarding the case or admitted racial prejudice.

The reason for the challenges is to create a fair trial before an impartial jury. It is important to have an equal representation of genders, races and classes in a jury for the fairest jury trial.

If you are currently facing criminal charges, it is important to have an experienced defence lawyer. Contact our team at Ross Lutz Barristers to protect your freedom today.