Inherent Powers of the Trial Judge
The trial judge has inherent power to control the jury selection process to make effective use of court resources and ensure fairness to all parties: R v Noureddine, 2015 ONCA 770 at para 38
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Rotating versus Static Triers
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The selection of jurors in a case involving a challenge for cause is governed by s.640. There are three options available for the trial of a challenge for cause:
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rotating triers with the unsworn prospective jurors remaining in the courtroom;
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rotating triers with the unsworn prospective jurors excluded from the courtroom; or
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static triers with both sworn and unsworn prospective jurors excluded from the courtroom: R v Murray, 2017 ONCA 393 at para 60
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"A formal application under s. 640(2.1) to have sworn and unsworn jurors excluded during the trial of the challenge for cause and to have static triers try that challenge is not dispositive against the use of static triers. Substance trumps form. A decision by defence counsel to choose static triers may amount to the functional equivalent of an application to exclude sworn and unsworn jurors under s. 640(2.1). Likewise, a desire to exclude prospective jurors during the challenge process and satisfaction with properly-vetted static jurors:" Murray at para 55
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Right to Rotating Triers
The accused has the right to rotating triers, pursuant to s.640(2) of the Criminal Code, unless the accused brings a motion under s.640(2.1).
The use of rotating triers avoids the risk of one trier skewing the jury selection process, and gives each juror a role in the selection of their fellow jurors, which promotes responsibility and cohesiveness: R v Noureddine, 2015 ONCA 770 at paras 33-35, 65
The trial judge does not have inherent jurisdiction to order the use of static triers despite requirement in s.640(2): para 3
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Exclusion of the unsworn prospective jurors during the use of rotating triers is discretionary, linked to the need to preserve impartiality in the jury selection process. A trial judge, invited to exercise this discretion is entitled to insist on a sufficient reason for doing so. What is sufficient depends on the circumstances of each case: R v Murray, 2017 ONCA 393 at para 53
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Some courts have held that this discretion to exclude unsworn prospective jurors when the truth of the challenge for cause is tried by rotating triers extends to sworn jurors who are not acting as triers: Murray at para 54
Static Triers
Absent an application by an accused to exclude all jurors from the courtroom during the trial of the challenge for cause, static triers may not be used to try the truth of the challenge. Static triers may be used pursuant to s.640(2.1) and (2.2), but they do not become part of the jury: R v Noureddine, 2015 ONCA 770, at paras 30, 36; R v Murray, 2017 ONCA 393 at para 46
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Improper Use of Static Triers
​The improper use of static triers to determine the challenge for cause cannot be cured by s.686(1)(b)(iv) because the court will never have been properly constituted in the first place. This goes beyond a loss of jurisdiction during the trial; no jurisidction ever arose: R v Noureddine, 2015 ONCA 770 at paras 49-56
The failure to use rotating triers cannot be cured by s.670 or 671; these apply only to irregularities, and not to a situation where the accused has been deprived of a statutory right and/or where an objection is raised before the verdict: R v Noureddine, 2015 ONCA 770 at paras 41-45
The failure to use rotating triers over the express objection of counsel also creates prejudice by undermining the appearance of fairness in the proceedings and the due administration of justice: Noureddine at paras 64, 68
However, the curative provisio may apply where the accused wanted to use static triers but failed to bring the appropriate motion under s.640(2.1): Noureddine at para 57; R v Kossyrine, 2017 ONCA 388 at paras 29-30.
Importantly, in determining whether the accused in fact made an application under s.640(2.1), the substance of defence counsel's actions, and not the form, is important. The context of the record may lead to the inference that the accused, in substance if not in form, did make an application under s.640(2.1): Kossyrine, at paras 22-28; R v Grant, 2016 ONCA 639; R v Mansingh, 2017 ONCA 68
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Only the party whose interest was adversely affected by the error made in the jury selection process can rely on that error to set aside a verdict returned by the jury: Noureddine at para 77
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Peremptory Challenges
Right to peremptory challenges
The accused has the right to peremptorily challenge a juror after unsuccessfully challenging that juror for cause: R v Noureddine, 2015 ONCA 770 at paras 78-81
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The denial of the accused’s right to peremptorily challenge prospective jurors is a right personal to the accused in which the prosecution has no interest. The Crown cannot therefore rely on the error as a basis for nullifying an acquittal returned by the jury: Noureddine at paras 80-81