CONSOLIDATED STATUTES OF CANADA
PART XX PROCEDURE IN JURY TRIALS AND GENERAL PROVISIONS
634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.
(2) Subject to subsections (3) and (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).
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.
Order of challenges
635. (1) The accused shall be called on before the prosecutor is called on to declare whether the accused challenges the first juror, for cause or peremptorily, and thereafter the prosecutor and the accused shall be called on alternately, in respect of each of the remaining jurors, to first make such a declaration.
Where there are joint trials
(2) Subsection (1) applies where two or more accused are to be tried together, but all of the accused shall exercise the challenges of the defence in turn, in the order in which their names appear in the indictment or in any other order agreed on by them,
(a) in respect of the first juror, before the prosecutor; and
(b) in respect of each of the remaining jurors, either before or after the prosecutor, in accordance with subsection (1).
R.S., 1985, c. C-46, s. 635; R.S., 1985, c. 2 (1st Supp.), s. 2; 1992, c. 41, s. 2.
636. and 637. [Repealed, 1992, c. 41, s. 2]
Challenge for cause
638. (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
(a) the name of a juror does not appear on the panel, but no misnomer or misdescription is a ground of challenge where it appears to the court that the description given on the panel sufficiently designates the person referred to;
(b) a juror is not indifferent between the Queen and the accused;
(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months;
(d) a juror is an alien;
(e) a juror, even with the aid of technical, personal, interpretative or other support services provided to the juror under section 627, is physically unable to perform properly the duties of a juror; or
(f) a juror does not speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or both official languages of Canada, where the accused is required by reason of an order under section 530 to be tried before a judge and jury who speak the official language of Canada that is the language of the accused or the official language of Canada in which the accused can best give testimony or who speak both official languages of Canada, as the case may be.
No other ground
(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).
(3) and (4) [Repealed, 1997, c. 18, s. 74]
(5) [Repealed, R.S., 1985, c. 31 (4th Supp.), s. 96]
R.S., 1985, c. C-46, s. 638; R.S., 1985, c. 27 (1st Supp.), s. 132, c. 31 (4th Supp.), s. 96; 1997, c. 18, s. 74; 1998, c. 9, s. 6.
Challenge in writing
639. (1) Where a challenge is made on a ground mentioned in section 638, the court may, in its discretion, require the party that challenges to put the challenge in writing.
(2) A challenge may be in Form 41.
(3) A challenge may be denied by the other party to the proceedings on the ground that it is not true.
R.S., c. C-34, s. 568.
Objection that name not on panel
640. (1) Where the ground of a challenge is that the name of a juror does not appear on the panel, the issue shall be tried by the judge on the voir dire by the inspection of the panel, and such other evidence as the judge thinks fit to receive.
(2) Where the ground of a challenge is one not mentioned in subsection (1), the two jurors who were last sworn, or if no jurors have then been sworn, two persons present whom the court may appoint for the purpose, shall be sworn to determine whether the ground of challenge is true.
If challenge not sustained, or if sustained
(3) Where the finding, pursuant to subsection (1) or (2) is that the ground of challenge is not true, the juror shall be sworn, but if the finding is that the ground of challenge is true, the juror shall not be sworn.
Disagreement of triers
(4) Where, after what the court considers to be a reasonable time, the two persons who are sworn to determine whether the ground of challenge is true are unable to agree, the court may discharge them from giving a verdict and may direct two other persons to be sworn to determine whether the ground of challenge is true.
R.S., c. C-34, s. 569.
Calling jurors who have stood by
641. (1) Where a full jury has not been sworn and no names remain to be called, the names of those who have been directed to stand by shall be called again in the order in which their names were drawn and they shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.
Other jurors becoming available
(2) Where, before a juror is sworn pursuant to subsection (1), other jurors in the panel become available, the prosecutor may require the names of those jurors to be put into and drawn from the box in accordance with section 631, and those jurors shall be challenged, directed to stand by, excused or sworn, as the case may be, before the names of the jurors who were originally directed to stand by are called again.
R.S., 1985, c. C-46, s. 641; 1992, c. 41, s. 3.
Summoning other jurors when panel exhausted
642. (1) Where a full jury cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer forthwith to summon as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury.
(2) Jurors may be summoned under subsection (1) by word of mouth, if necessary.
Adding names to panel
(3) The names of the persons who are summoned under this section shall be added to the general panel for the purposes of the trial, and the same proceedings shall be taken with respect to calling and challenging those persons, excusing them and directing them to stand by as are provided in this Part with respect to the persons named in the original panel.
R.S., 1985, c. C-46, s. 642; 1992, c. 41, s. 4.
Who shall be jury
643. (1) The twelve jurors whose names are drawn and who are sworn in accordance with this Part shall be the jury to try the issues of the indictment, and the names of the jurors so drawn and sworn shall be kept apart until the jury gives its verdict or until it is discharged, whereupon the names shall be returned to the box as often as occasion arises, as long as an issue remains to be tried before a jury.
Same jury may try another issue by consent
(2) The court may try an issue with the same jury in whole or in part that previously tried or was drawn to try another issue, without the jurors being sworn again, but if the prosecutor or the accused objects to any of the jurors or the court excuses any of the jurors, the court shall order those persons to withdraw and shall direct that the required number of names to make up a full jury be drawn and, subject to the provisions of this Part relating to challenges, orders to excuse and directions to stand by, the persons whose names are drawn shall be sworn.
(3) Failure to comply with the directions of this section or section 631, 635 or 641 does not affect the validity of a proceeding.
R.S., 1985, c. C-46, s. 643; 1992, c. 41, s. 5.
Discharge of juror
644. (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.
Replacement of juror
(1.1) A judge may select another juror to take the place of a juror who by reason of illness or other reasonable cause cannot continue to act, if the jury has not yet begun to hear evidence, either by drawing a name from a panel of persons who were summoned to act as jurors and who are available at the court at the time of replacing the juror or by using the procedure referred to in section 642.
Trial may continue
(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly.
R.S., 1985, c. C-46, s. 644; 1992, c. 41, s. 6; 1997, c. 18, s. 75.
645. (1) The trial of an accused shall proceed continuously subject to adjournment by the court.
(2) A judge may adjourn a trial from time to time in the same sittings.
Formal adjournment unnecessary
(3) For the purpose of subsection (2), no formal adjournment of trial or entry thereof is required.
Questions reserved for decision
(4) A judge, in any case tried without a jury, may reserve final decision on any question raised at the trial, or any matter raised further to a pre-hearing conference, and the decision, when given, shall be deemed to have been given at the trial.
Questions reserved for decision in a trial with a jury
(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.
R.S., 1985, c. C-46, s. 645; R.S., 1985, c. 27 (1st Supp.), s. 133; 1997, c. 18, s. 76.
646. On the trial of an accused for an indictable offence, the evidence of the witnesses for the prosecutor and the accused and the addresses of the prosecutor and the accused or counsel for the accused by way of summing up shall be taken in accordance with the provisions of Part XVIII relating to the taking of evidence at preliminary inquiries.
R.S., c. C-34, s. 575.
Separation of jurors
647. (1) The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.
Keeping in charge
(2) Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.
Non-compliance with subsection (2)
(3) Failure to comply with subsection (2) does not affect the validity of the proceedings.
Empanelling new jury in certain cases
(4) Where the fact that there has been a failure to comply with this section or section 648 is discovered before the verdict of the jury is returned, the judge may, if he considers that the failure to comply might lead to a miscarriage of justice, discharge the jury and
(a) direct that the accused be tried with a new jury during the same session or sittings of the court; or
(b) postpone the trial on such terms as justice may require.
Refreshment and accommodation
(5) The judge shall direct the sheriff to provide the jurors who are sworn with suitable and sufficient refreshment, food and lodging while they are together until they have given their verdict.
R.S., c. C-34, s. 576; 1972, c. 13, s. 48.
Restriction on publication
648. (1) Where permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published, after the permission is granted, in any newspaper or broadcast before the jury retires to consider its verdict.
(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.
Definition of "newspaper"
(3) In this section, "newspaper" has the same meaning as in section 297.
1972, c. 13, s. 49.
Disclosure of jury proceedings
649. Every member of a jury, and every person providing technical, personal, interpretative or other support services to a juror with a physical disability, who, except for the purposes of
(a) an investigation of an alleged offence under subsection 139(2) in relation to a juror, or
(b) giving evidence in criminal proceedings in relation to such an offence,
discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court is guilty of an offence punishable on summary conviction.
R.S., 1985, c. C-46, s. 649; 1998, c. 9, s. 7.
Accused to be present
650. (1) Subject to subsections (1.1) and (2), an accused other than a corporation shall be present in court during the whole of the accused's trial.
(1.1) Where the court so orders, and where the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken.
(1.2) Where the court so orders, an accused who is confined in prison may appear by closed-circuit television or any other means that allow the court and the accused to engage in simultaneous visual and oral communication, for any part of the trial other than a part in which the evidence of a witness is taken, if the accused is given the opportunity to communicate privately with counsel, in a case in which the accused is represented by counsel.
(2) The court may
(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;
(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or
(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.
To make defence
(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77.
650.1 A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel for the accused and the prosecutor with respect to the matters that should be explained to the jury and with respect to the choice of instructions to the jury.
1997, c. 18, s. 78.
Summing up by prosecutor
651. (1) Where an accused, or any one of several accused being tried together, is defended by counsel, the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce evidence on behalf of the accused for whom he appears and if he does not announce his intention to adduce evidence, the prosecutor may address the jury by way of summing up.
Summing up by accused
(2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.
CONSOLIDATED STATUTES OF CANADA
PART XX PROCEDURE IN JURY TRIALS AND GENERAL PROVISIONS