INTRODUCTION AND BRIEF DESCRIPTION

Only challenges for cause mentioned in subsection (1) of Section 638 of the Criminal Code of Canada are allowed.

SECTION WORDING

638(2) No challenge for cause shall be allowed on a ground not mentioned in subsection (1).

EXPLANATION

Section 638(2) of the Criminal Code of Canada is an important provision that governs the process of jury selection in criminal trials. The purpose of this provision is to limit the number of challenges for cause that can be made by either party during the selection of jurors. A challenge for cause is a legal process used by parties to exclude a prospective juror from serving on a trial jury. This happens when there is a doubt on the part of one of the parties as to the impartiality or competency of a potential juror. Section 638(1) of the Criminal Code enumerates the specific grounds on which a challenge for cause can be made. These include situations where the prospective juror: (a) is not eligible or qualified to serve as a juror; (b) is biased or appears to be biased; (c) has a relationship with any of the parties, witnesses, or counsel that could affect their impartiality; (d) has a personal interest in the outcome of the case; or (e) is unable to comprehend or understand the proceedings. This means that ultimately, the legal reasons for allowing a challenge for cause are confined to the grounds outlined in subsection (1). Consequently, any challenge for cause on a ground not mentioned in that subsection can be disallowed by the court. In other words, Subsection 638(2) ensures that the parties in a criminal trial cannot make frivolous challenges for cause based on unlisted grounds. This promotes the fairness and efficiency of the trial process by limiting such challenges and expediting the jury selection process.

COMMENTARY

Section 638(2) of the Criminal Code of Canada provides an important safeguard against abuse of the challenge for cause process in criminal trials. This provision limits the grounds upon which a challenge for cause may be made, explicitly stating that challenges may only be made on the grounds set out under subsection (1) of the section. This provision is significant because it protects the integrity of the justice system by preventing frivolous or malicious challenges that seek to interfere with the fair administration of justice. Subsection (1) of section 638 sets out the permitted grounds for challenging for cause, which include the following: - That the prospective juror is not a Canadian citizen; - That the prospective juror is not impartial; - That the prospective juror has been convicted of an indictable offence; - That the prospective juror has been convicted of an offence for which he or she was imprisoned for more than six months; - That the prospective juror is related to any party to the proceeding; - That the prospective juror is unable to understand the official language of the trial; - That the prospective juror is unable to perform the duties of a juror. By limiting the grounds for challenge to these specific concerns, section 638(2) ensures that challenges are legitimate and grounded in substantive concerns, rather than being made for frivolous or improper reasons. This contributes to the overall fairness and impartiality of the justice system, as jurors are selected based on their abilities to perform their duties and their lack of conflicts of interest or bias, rather than on superficial, extraneous, or irrelevant factors. Moreover, by ensuring that challenges for cause are made on legitimate grounds, section 638(2) helps to prevent delays in the administration of justice. Challenges can be time-consuming and costly, particularly when they are made for inappropriate reasons. By limiting challenges to the grounds set out in subsection (1), section 638(2) helps to prevent the creation of unnecessary delay and allows trials to proceed more efficiently and expeditiously. It is worth noting, however, that the grounds for challenge set out in subsection (1) of section 638 are not exhaustive. As such, it is theoretically possible that a valid ground for challenge could arise that is not covered by the section and that would require a challenge on a different basis. In such cases, it would be up to the court to determine whether the challenge is permitted and on what basis. Overall, section 638(2) of the Criminal Code of Canada is a critical provision that helps to ensure that challenges for cause are legitimate, grounded in substantive concerns, and do not impede or interfere with the fair administration of justice. By limiting the grounds upon which challenges may be made, this provision contributes to the overall integrity and efficiency of the justice system, while also protecting the rights of accused persons to a fair and impartial trial.

STRATEGY

Section 638(2) of the Criminal Code of Canada is an important provision that needs to be considered while dealing with challenges for cause in criminal proceedings. This section establishes that a challenge for cause can only be allowed if the ground for the challenge is mentioned in subsection (1). The grounds mentioned in subsection (1) include bias, relationship with the accused, interest in the outcome of the trial, and incapacity to serve as a juror due to physical or mental reasons. Therefore, it is essential to consider some strategic considerations while dealing with this section of the Criminal Code of Canada. One of the key strategic considerations when dealing with section 638(2) of the Criminal Code of Canada is to identify the grounds for the challenge for cause that can be established under subsection (1). The legal counsel must carefully review the potential reasons or biases that may lead to a challenge for cause and determine if they fall under the grounds mentioned in subsection (1). The legal counsel must also ensure that there is sufficient evidence to support the challenge if it is to be successful. Another important strategy to consider is to evaluate the composition of the jury and determine if there are biases or prejudices that could affect the outcome of the trial. This can be done by analyzing the demographic characteristics of the jury members, their socio-economic status, their employment, and their background. The legal counsel can use this information to identify potential biases or prejudices that may be relevant to the case and to decide whether to challenge certain jury members for cause. Furthermore, it is crucial to craft an effective argument when making a challenge for cause. The legal counsel must present a persuasive case that demonstrates why the juror is not suitable to serve on the jury. This can be achieved by providing evidence, citing previous case law, and referring to relevant legal principles. The legal counsel must also be prepared to answer questions from the judge or the opposing counsel while making a challenge for cause. To conclude, dealing with section 638(2) of the Criminal Code of Canada requires careful consideration and planning. The legal counsel must identify the grounds for the challenge for cause, evaluate the composition of the jury, and craft an effective argument to establish why a juror is not suitable to serve on the jury. Following these strategic considerations, the legal counsel can increase the chances of achieving a successful challenge for cause.