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Note: Specimen jury instructions serve as a template that trial judges must adapt to the particular circumstances of each trial, not simply read out in whole. They are not designed to be delivered "as-is." More information about the use of specimen instructions is found in the Preface and A Note to Users, which you can find here.
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2.2 Challenges for Cause – Procedure

Note[1]

(Last revised November 2021)

In R. v. Chouhan, 2021 SCC 26, a majority of the Supreme Court ruled that jurors must be instructed on the issue of implicit bias. Preliminary 1.1.1 and Preliminary 3.1.1 contain instructions on implicit bias that are intended to accord with the majority’s requirements.

Some members of the Court also offered guidance on issues related to the procedures for selecting juries in the wake of the statutory abolition of peremptory challenges.  Those issues include the use of the power to excuse jurors (under s. 632(c) of the Criminal Code), the scope of challenges for cause (s. 638(1)(b)), and the application of the new stand-aside power (s. 633).

While it is important to read the decision in Chouhan as whole, the following paragraphs of the judgment address specific procedures and warrant close attention:   Excusing jurors (paras 35-36, per Moldaver and Brown, JJ., Wagner, CJC concurring); challenges for cause (paras 61, 62, 67, per Moldaver and Brown, JJ., Wagner, CJC concurring, and paras 119-121, per Martin, Karatkatsanis, and Kasiser JJ.); and the stand aside power (paras 70, 74, 81, per Moldaver and Brown, JJ., Wagner, CJC concurring).

 

[1]               It is fundamental that a fair, impartial, and unbiased jury try any person charged with a criminal offence. As a prospective juror, you bring with you experiences, beliefs, and opinions, some of which may be unconscious. The issue before us today is not whether these beliefs are correct or proper, but whether you can set them aside and judge the evidence presented at trial fairly without bias, prejudice, or partiality. As part of the jury selection process, each prospective juror will be asked (a) question(s) about whether (specify, e.g., publicity, notoriety, or bias) would affect their ability to judge (NOA) impartially. This is called “challenge for cause.” Here is what will happen.

[2]               The clerk will select the numbers of ______(e.g., 20) potential jurors, who will come forward when their numbers are called. They will be asked one by one to enter the witness box, [take an oath or affirmation][2] and answer (a) question(s).[3] The question(s) will not pry unduly into your privacy. Each person will be asked the same question(s).

[3]               On the basis of the answer to the question(s), I will decide whether the prospective juror is acceptable or not acceptable. The issue is whether the prospective juror has opinions about the case that they cannot set aside and that would prevent them from reaching a verdict based solely on the evidence at trial. An acceptable juror is a person who would likely approach jury duty with an open mind and decide the case solely on the evidence given at trial and the legal instructions that I (or the trial judge) will give you. A person who is not likely to approach jury duty in that way is not acceptable.

[4]               If I determine that a prospective juror is not acceptable, that person will be excused. If I determine that a prospective juror is acceptable, that person will become a juror.

 

[1] According to s. 640(2), the judge may order the exclusion of all jurors, sworn and unsworn, from the courtroom if necessary to preserve the impartiality of the jurors. Jurors should, as a general rule, be excluded during that process (see Chouhan, at para. 67).

Instruction 2.1 will also apply when there is a general challenge for cause. The applicable portion of 2.1 must be added to 2.2.

[2] Note that in some jurisdictions prospective jurors are not asked at this stage to take an oath or solemnly affirm.

[3] In Chouhan, above, it was contemplated that the trial judge would ask prospective jurors the questions on a challenge for cause.  As it was put in para. 67: 

. . .  Bill C‑75 directs that the trial judge, rather than a layperson, will be the arbiter of the challenge for cause (Criminal Code, s. 640(1)). As such, in our view, it would be appropriate for the trial judge — as an impartial person adjudicating impartiality — to put the challenge for cause questions to the prospective juror. Counsel should, of course, be consulted on the content of such questions before they are posed.

At present, there are conflicting decisions on whether it is open to the trial judge to permit counsel to ask questions on the challenge (see e.g.  R. v. Bhogal, 2021 ONSC 4925 and R. v. Martin, 2021 ONSC 5333.