INTRODUCTION AND BRIEF DESCRIPTION
This section outlines the grounds for challenges that a prosecutor or accused can make regarding potential jurors.
SECTION WORDING
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.
EXPLANATION
Section 638(1) of the Criminal Code of Canada outlines the grounds on which a prosecutor or accused can challenge a juror during a criminal trial. The section lists six grounds for challenge: (a) the juror's name does not appear on the panel, (b) the juror is not impartial, (c) the juror has been convicted of an offense with a sentence of death or imprisonment exceeding twelve months, (d) the juror is an alien, (e) the juror is physically unable to perform their duties, and (f) the juror does not speak the language of the accused or the official language of Canada. Under this section, a challenge can be made if the juror's name is absent from the panel, but the court may reject this challenge if it is satisfied that the description on the panel is sufficient to identify the person in question. A challenge can also be made if the juror is biased or has a personal interest in the case. In addition, a juror who has been convicted of a serious offense may be challenged, as may an alien who is not a citizen or permanent resident of Canada. Furthermore, a challenge can be made if the juror lacks the physical ability to perform their duties, either due to a disability or illness. Finally, a challenge can be made if the juror does not speak the appropriate language required for the trial, whether it is the language of the accused or one of the official languages of Canada. Overall, Section 638(1) serves to ensure that juries are made up of individuals who are impartial, capable, and able to understand the language used in court. By providing guidelines for challenges, this section helps to protect the rights of both the accused and the prosecution in a criminal trial.
COMMENTARY
Section 638(1) of the Criminal Code of Canada is a crucial provision for anyone seeking a fair trial in the country. The provision provides for the grounds for challenging a juror and ensures that no juror is appointed who may have a bias or prejudice towards the accused. This provision is essential for ensuring that the jury is impartial and composed of individuals who can make a fair decision based on the evidence presented to them. The first ground for challenge under Section 638(1) is related to the name of the juror not appearing on the panel. In such a scenario, the court may consider whether the description given on the panel sufficiently designates the person referred to. The intention behind this provision is to ensure that errors in the composition of the jury are minimized, and no confusion or misidentification of jurors occurs during the trial. The second ground for challenge under Section 638(1) is that the juror is not indifferent between the Queen and the accused. This provision is critical as it ensures that no juror is appointed who may have a bias, prejudice, or any preconceived notion against the accused. The provision is also relevant for ensuring that the juror is not influenced by other factors like media attention or public opinion related to the case. The third ground for challenge relates to the criminal record of the juror. If a juror has been convicted of an offense for which they were sentenced to death or a term of imprisonment of more than twelve months, they can be challenged. This provision is essential for ensuring that jurors do not bring their own criminal history, biases, or prejudices into the decision-making process. It also ensures that jurors do not have any prior experience that might influence the jury's verdict. The fourth ground for challenge is connected to the fact that the juror is not a Canadian citizen and is an alien. This provision is significant as it ensures that jurors who are not Canadian citizens do not have any affiliation with any other country or group that may influence their decision-making process. The fifth ground for challenge is related to the physical ability of the juror to perform their duties properly. If a juror, even with the aid of technical or personal support, is physically unable to perform their duties correctly, they can be challenged. This provision ensures that jurors are competent and capable of carrying out their responsibilities, given the job's physical and mental demands. Finally, the sixth ground for challenge ensures that jurors can speak the official languages of Canada. This provision is relevant when the accused is required to be tried in a specific language or when they can give their testimony in a specific language. The provision ensures that both the accused and the jury can understand each other and communicate effectively during the trial. In conclusion, Section 638(1) of the Criminal Code of Canada is a critical provision that ensures the composition of the jury is impartial and unbiased. It provides for the grounds for challenging a juror and ensures that jurors can perform correctly and without bias or prejudice. The provision plays a vital role in promoting fairness and justice in the Canadian legal system.
STRATEGY
The jury selection process is a crucial part of criminal trials as jurors are responsible for the decision-making process in determining the guilt or innocence of the accused. Section 638(1) of the Criminal Code of Canada outlines the grounds for challenging potential jurors. In this essay, we will discuss some strategic considerations when dealing with this section of the Criminal Code of Canada, and some strategies that could be employed. One major strategic consideration is knowing the jurors' potential bias towards the accused or the prosecution. A potential juror's background, beliefs, and experiences can affect their decision-making process. The party that can predict juror bias and challenge jurors who are likely to be biased in favor of the opposing party can increase their chances of success in the trial. To achieve this, it is essential to ask the right questions during jury selection. For example, if the trial involves a racial issue, it might be important to know the potential jurors' attitudes towards race. Another strategic consideration is knowing the technicalities surrounding the grounds for challenging a juror. Lawyers must be familiar with the Civil Code's provisions on grounds for challenging proposed jurors to successfully challenge biased jurors. They must understand the legal framework and criteria required to challenge a juror successfully. For example, a juror's prior conviction may be a valid ground for challenging the juror only if the conviction was sentenced to death or imprisonment exceeding twelve months. Additionally, lawyers may consider challenging jurors based on their ability to understand the official languages of Canada. The accused has the right to be tried in the language of their choice, and if a juror is not fluent in the accused's preferred language, the juror could be challenged. This strategy could be employed to ensure that the jurors understand the evidence presented and make an informed decision. Moreover, some strategies could be employed to prevent a party from successfully challenging a juror. For example, lawyers could interview potential jurors before the trial to get a sense of their attitudes. Knowing the juror's background and views could help the lawyer's make an informed decision of which jurors to challenge or retain. In conclusion, the selection of a jury is crucial in the trial process since it determines the decision-making body that will hear evidence and decide the accused's fate. Strategic consideration should be given to the selection process to ensure that the chosen jurors are impartial and unbiased. The grounds for challenging jurors provided in Section 638(1) of the Criminal Code of Canada should be studied carefully, and lawyers should use strategies to challenge or retain jurors based on these grounds. By employing these tactics, lawyers can maximize their chances of success in the trial process.