section 640(2.1)

INTRODUCTION AND BRIEF DESCRIPTION

The court may exclude all jurors if a challenge for cause is made on a ground not mentioned in subsection (1) to preserve the impartiality of the jurors.

SECTION WORDING

640(2.1) If the challenge is for cause and if the ground of the challenge is one that is not mentioned in subsection (1), on the application of the accused, the court may order the exclusion of all jurors sworn and unsworn from the court room until it is determined whether the ground of challenge is true, if the court is of the opinion that such an order is necessary to preserve the impartiality of the jurors

EXPLANATION

Section 640(2.1) of the Criminal Code of Canada deals with the exclusion of jurors from the courtroom. The section allows an accused person to apply to the court for the exclusion of all jurors, both those who have been sworn in and those who haven't, from the courtroom if the basis of the challenge is not mentioned in subsection (1) and it is for cause. The court may grant this order if it believes that it is necessary to preserve the impartiality of the jurors. The Criminal Code of Canada sets out the procedures for selecting jurors in criminal cases. The selection process involves randomly choosing individuals from a pool of potential jurors to serve on a jury in a criminal trial. However, in some situations, an accused person may challenge the eligibility of a potential juror based on their personal circumstances or their ability to be impartial in the case. Subsection (2) of section 640 of the Criminal Code sets out the grounds for challenging a juror for cause, which include bias or partiality. However, subsection (1) of the section provides that, where there is a challenge for cause, the juror must be excluded from the courtroom while the challenge is being discussed. Section 640(2.1) allows for the exclusion of all jurors from the courtroom in situations where the grounds for the challenge are not listed in subsection (1) of the section. This provision recognizes that there may be situations where excluding all jurors is necessary to ensure the impartiality of the jury. The court is given discretion to make this order if it believes that it is necessary in the circumstances. Overall, section 640(2.1) of the Criminal Code of Canada is an important provision that helps to ensure the fairness and impartiality of the selection process for jurors in criminal cases. By allowing for the exclusion of jurors from the courtroom in certain situations, this provision helps to maintain the integrity of the criminal justice system in Canada.

COMMENTARY

Section 640(2.1) of the Criminal Code of Canada grants an accused person the right to apply for an exclusion order under certain circumstances during jury selection. Specifically, this provision allows an accused to request that all potential jurors be excluded from the courtroom if the challenge is for cause and if the ground of the challenge is not specifically listed in subsection (1). The court may grant this exclusion order if it believes that doing so is necessary to preserve the impartiality of the jurors. The purpose of this provision is to ensure that the jury selection process is fair and impartial. It recognizes that certain challenges for cause may be more sensitive than others and that the presence of other jurors in the courtroom could taint their ability to make a fair and just decision. By allowing for the exclusion of jurors in these circumstances, the provision enables an accused to challenge the impartiality of a juror without putting other potential jurors on notice and potentially affecting their decision-making. One possible scenario in which an exclusion order may be granted is where the grounds for challenge relate to a juror having personal knowledge of the case or the parties involved. For example, a juror who is a close friend or relative of the victim or accused may be challenged for cause because they may be unable to remain impartial. In such circumstances, it may be necessary to exclude all potential jurors to prevent them from being influenced by the grounds for challenge. Another scenario may involve the grounds for challenge relating to the conduct of other jurors during the jury selection process. For example, if a potential juror makes comments that demonstrate a bias towards the accused, it may be necessary to exclude all other potential jurors to prevent them from being influenced by the comments and to preserve the impartiality of the jury. While the exclusion of potential jurors from the courtroom may be necessary in certain circumstances, it is important to balance this with the need to ensure transparency and openness in the jury selection process. The court must carefully weigh the need to preserve the impartiality of jurors against the need for transparency and openness. In some cases, it may be possible to address concerns about juror impartiality without excluding all potential jurors from the courtroom, such as by holding a sidebar discussion outside the presence of the other jurors. In summary, section 640(2.1) of the Criminal Code of Canada provides an accused with a useful tool to challenge the impartiality of jurors during the jury selection process. While the exclusion of potential jurors from the courtroom may be necessary in certain circumstances to preserve the integrity of the selection process, courts must strike a careful balance between this need and the need for openness and transparency in the process. Ultimately, the goal of this provision is to ensure that justice is done in a fair and impartial manner.

STRATEGY

Section 640(2.1) of the Criminal Code of Canada provides a critical tool for the defense in ensuring a fair and impartial jury in criminal trials. The section allows the accused to challenge a juror for cause and seek the temporary exclusion of all jurors from the courtroom until the ground of the challenge is determined. This provision is intended to protect the accused's right to a fair trial by ensuring that jurors are not unduly influenced by external factors and that the proceedings remain impartial and fair. One strategic consideration when dealing with this section of the Criminal Code is deciding when to apply for an order to exclude the jurors. It may be prudent to seek an order at the beginning of the trial before the jury has been empaneled. This allows the defense to conduct voir dire questioning of potential jurors in private, without the other jurors overhearing, to explore possible biases and ensure that a fair jury is selected. However, if relevant information arises during the trial that raises concerns about the impartiality of the jurors, an application can be made at that time. Another strategic consideration is determining whether to seek the exclusion of only sworn jurors or both sworn and unsworn jurors. Excluding unsworn jurors may provide more protection against influence from media reports or public opinion, but it can be more difficult to establish cause for challenges against unsworn jurors. A key strategy for employing this provision of the Criminal Code is conducting thorough research on potential jurors prior to trial. This can include reviewing their social media activity, prior criminal history, and potential biases. This information can be used to make informed decisions about whether to challenge jurors for cause and seek exclusion from the courtroom. Additionally, the defense may strategically use this provision to delay the trial and gather more evidence or to allow jurors to cool off after hearing emotional testimony. However, it is important to balance delaying tactics with the accused's right to a speedy trial and avoid appearing to manipulate the process for strategic gain. Overall, section 640(2.1) of the Criminal Code is a powerful tool for ensuring a fair trial by allowing for the exclusion of jurors when necessary. Strategic considerations such as timing, which jurors to exclude and conducting thorough research on potential jurors can optimize the use of this provision in achieving a favorable outcome for the defense. However, it is essential to balance the tactical use of this provision with the accused's right to a fair and speedy trial.