Understanding a criminal jury trial

Overview

In a jury trial, responsibility is divided. The judge rules on law and procedure; the jury decides the facts and applies the judge’s legal instructions to reach its verdict. The prosecutor and defence present evidence and arguments, but neither supplies an authoritative statement of the law. A verdict emerges from this allocation of responsibility, not from a vote about which advocate was more persuasive as a speaker.

The jury hears only the evidence the law permits it to consider. That restriction explains why jurors sometimes leave the courtroom, why an admitted document may have only a limited use and why a judge can interrupt an otherwise fluent closing address. The criminal burden remains proof beyond a reasonable doubt. This lesson follows an ordinary adult jury trial and connects the preparation of the hearing to the reliability of its eventual verdict.

Learning Objectives

• Explain the different responsibilities of the judge, jury and parties.
• Distinguish lawful selection mechanisms and identify how inadmissible material is kept from the jury.
• Apply the requirements for instructions, questions, unanimity and an unresolved jury disagreement.

Establish the right court and an impartial jury

Availability of a jury and preparation of the trial

Section 11(f) of the Charter protects the benefit of a jury where the maximum punishment is imprisonment for five years or a more severe punishment, subject to its exception for offences under military law tried before a military tribunal. The threshold includes five years. The available trial mode must also be determined under the Criminal Code, including the offence’s classification, jurisdiction, election and any required consent. The constitutional provision should not be used as a substitute for that statutory route.

In Quebec, the ordinary criminal jury trial takes place in Superior Court (Cour supérieure). A pre-hearing conference is mandatory under section 625.1(2). It helps identify applications, admissions, witness needs, exhibits and the expected duration. Resolving a foreseeable admissibility issue before the jury waits outside the courtroom can protect both fairness and continuity. The conference does not require the accused to surrender the right to remain silent or admit disputed elements of the offence.

The trial should be planned around what jurors must decide. A count involving several alleged acts requires clarity about the relevant acts and the legal route to conviction. Joint trials may require separate treatment of evidence against different accused persons. These questions should be identified before the final instructions, because the manner in which evidence is introduced can create a problem that a hurried final explanation cannot readily repair.

Selection has more than one stage

The jury panel is assembled through the applicable provincial framework, recognized by section 626. Selection for the individual criminal trial then follows the Code. Representativeness concerns the fairness of the process giving a broad community an opportunity to participate; it does not promise that the final jury will mirror every characteristic of the accused or the population. Impartiality asks whether those who decide the case can approach it fairly under the law. A statutory challenge to the panel under sections 629–630 addresses partiality, fraud or wilful misconduct by the official who returned it. That objection differs from a challenge to an individual candidate; a constitutional challenge to the selection process also requires its own legal and factual basis.

Under section 632, the judge can excuse a prospective juror before trial for a personal interest, a relevant relationship, personal hardship or another reasonable cause. Section 633 permits a direction to stand aside after the candidate is called, for personal hardship, maintaining public confidence in the administration of justice or another reasonable cause. Excusal and temporary postponement have different consequences. Under section 641, when the available cards are exhausted without a full jury and any required alternates, candidates stood aside are recalled in their original order, subject to excusal or challenge. The parties cannot transform the judge’s authority into their own unrestricted power to remove an unwanted candidate.

A challenge for cause under section 638 must rest on a listed ground, such as partiality. There is no numerical limit on these challenges, but prospective jurors are presumed impartial. The party seeking to question them about partiality must establish a realistic potential for bias affecting the case. That foundation can concern community prejudice; it need not always be proof already obtained about a particular candidate. The judge controls the questions and, under section 640, determines whether the challenge is established.

A peremptory challenge is no longer available: the former section 634 has been repealed. In R. v. Chouhan, 2021 SCC 26, the Supreme Court upheld the abolition and confirmed its application to jury selection beginning on or after September 19, 2019. An earlier charge does not preserve the former power. References in older descriptions to rejecting a candidate without giving a reason do not describe the present selection process.

Worked example: a candidate’s connection to a witness

Factual Scenario

In this hypothetical trial, a prospective juror tells the court that a prosecution witness is their close friend and that they have discussed the alleged event several times. The candidate adds that they would find it difficult to disbelieve the friend. Defence counsel also dislikes another candidate’s occupation, but has no information suggesting bias or ineligibility. Assume both candidates otherwise meet the applicable qualifications.

Keep the evidence and the jury’s task aligned

The judge decides admissibility before the jury uses the material

A voir dire addresses questions such as whether a confession is admissible or whether evidence obtained through a Charter breach should be excluded. Jurors are ordinarily absent from that hearing. If the judge excludes the evidence, the jury cannot use it to decide guilt. Its apparent strength does not permit counsel to convey its substance through a question, an opening address or an insinuation during closing submissions.

Some evidence is admitted for a restricted purpose. A limiting instruction should identify the evidence, explain its permitted use and explain the forbidden inference in understandable terms. For example, a statement may be relevant to show its effect on a listener without proving that the statement’s allegation was true. The evidentiary basis must support that distinction; changing the label of the proposed use cannot cure a disguised attempt to prove inadmissible hearsay.

Where one item is admissible against one accused but not another, the jury needs a workable explanation of that restriction. The court must consider whether instructions can adequately manage the risk in the actual case. Merely repeating that jurors should be “careful” may not identify the relevant danger. The issue is developed in criminal evidence admissibility.

The judge also decides whether the prosecution has presented a legally sufficient case to go to the jury. A defence motion for a directed acquittal asks whether the admitted evidence could support conviction by a reasonable, properly instructed jury. It does not invite the judge to decide credibility or reach a personal conclusion on guilt. Where proof depends on inferences, the judge makes the limited assessment of whether the evidence, if believed, can reasonably support them. Rejection of the motion leaves guilt for the jury under the reasonable-doubt standard. As R. v. Krieger, 2006 SCC 47, explains, the judge cannot direct a guilty verdict merely because the evidence appears overwhelming.

Prevent exposure to information outside the trial

Jurors must decide from the admitted evidence and the law given by the judge. Independent internet research, visits to a location or private contact with a witness can introduce material that the parties have never tested. The ability to find information easily does not authorize its use. Instructions should address these risks before they arise and be reinforced where the circumstances require.

Section 648 provides an automatic publication ban ending when the jury retires to consider its verdict. Its text covers information from portions of the trial held without the jury after jurors receive permission to separate. In La Presse inc. v. Quebec, 2023 SCC 22, the Court confirmed that the ban also covers proceedings before jury selection conducted under the authority conferred by section 645(5), such as an evidentiary voir dire. It does not automatically cover every pretrial conference discussion. No separate court order is needed for this statutory ban. Other publication bans may protect complainants, witnesses or juror identities and may continue beyond deliberations. An open courtroom therefore does not make every detail immediately publishable; identify the applicable provision and orders before using an extract publicly.

If outside information may have reached a juror, counsel should promptly place the concern before the judge. The court needs a sufficient record to assess the actual problem and an opportunity to hear the parties. A curative instruction, discharge of a juror or a mistrial may have different consequences. The response depends on the risk and the available safeguards, rather than on a rule that every irregularity automatically invalidates the proceeding.

Give the jury usable legal instructions

Submissions and the pre-charge discussion

Closing addresses relate the evidence to each party’s position. They must not introduce new evidence or invite a verdict based on sympathy, prejudice or an improper inference from the accused’s silence. Under section 651, the defence ordinarily addresses the jury last if no witnesses were examined for the accused; otherwise the prosecution addresses it last. In a joint trial, witnesses examined for any accused trigger the requirement that all accused address the jury before the prosecution. A confident or forceful address cannot alter the prosecution’s burden.

Section 650.1 permits a pre-charge conference about the matters to be explained to the jury and the proposed instructions. Counsel should identify the elements in dispute, supported defences, alternative verdicts and evidentiary restrictions. A concrete proposed correction helps the judge more than an unexplained objection that the charge is “unbalanced.” The eventual responsibility for legally adequate instructions remains the judge’s.

Counsel should also identify errors after the charge while correction remains possible. Failure to object can matter when an appellate court assesses the charge in context, but it does not automatically validate a legal error. The record should preserve the objection and response. Reserving a known problem for appeal risks an avoidable error at the very stage where it could have been corrected.

Connect the elements to the evidence

The charge to the jury must explain the presumption of innocence, the prosecution burden, the elements of the offence and the available verdicts. It must also make the parties’ positions and the relevant evidence intelligible. Listing all witnesses without explaining which issue their evidence bears on can leave jurors without the guidance needed to decide the charge.

Instructions must distinguish disbelief from proof. If the accused gives evidence and the jury rejects that account, the prosecution must still have proved guilt on the whole admissible record. Where an available defence has the required evidential foundation, the judge must explain its actual legal requirements. Unsupported possibilities need not be submitted merely because counsel names them. The relevant evidential threshold and any special burden require careful identification.

The instructions are assessed functionally and in the context of the trial. In R. v. Abdullahi, 2023 SCC 19, the Court emphasized both accuracy and sufficiency: the charge as a whole must equip jurors to decide according to the law and evidence. No particular formula is required. That flexibility does not excuse omitting a decisive element or permitting an unlawful inference. Counsel’s correct explanation of the law cannot replace a missing judicial instruction. Simpler language is useful only if it preserves the rule’s conditions and the burden assigned to each party.

A Vetrovec warning addresses the particular danger of relying on a prosecution witness whose honesty or reliability is seriously suspect. Under R. v. Khela, 2009 SCC 4, the judge considers objective reasons for concern, such as a motive to lie, past dishonesty or inconsistent accounts, together with the witness’s importance to the prosecution. The label “accomplice” does not automatically settle the question. The judge has contextual discretion, but the warning is required where the risks and the witness’s central role call for it.

An adequate warning identifies the testimony requiring special scrutiny, explains the reasons, and cautions against convicting on it without confirmation. It directs jurors to look for evidence from an independent source capable of supporting trust in material aspects of the witness’s accusation. Each confirming item need not itself implicate the accused, but the evidence viewed together must help establish that the witness can be trusted about the accused’s involvement. Repetition derived from the same unreliable source supplies no independent assurance.

The caution creates no universal corroboration requirement. Subject to a separate statutory requirement where applicable, the jury may rely on unconfirmed testimony if, despite the warning, it accepts the evidence and is satisfied of guilt beyond a reasonable doubt. The judge supplies the framework for assessing the danger; the jury decides whether to believe the witness. The lesson on witnesses and testimony explains how questioning exposes weaknesses that may make such a warning necessary.

Worked example: two uses of a threatening message

Factual Scenario

In this hypothetical case, a witness explains that they left a warehouse after receiving a message saying that violence was about to occur there. Assume the judge admits the message only to explain the witness’s departure, and expressly refuses to admit it as proof that violence was actually planned. In closing, the prosecutor tells the jury that the message confirms the accused’s plan. The defence objects immediately.

Protect deliberations and obtain a lawful verdict

Juror numbers and continuity

Twelve jurors ordinarily determine the verdict. Section 631 allows thirteen or fourteen to be sworn where the judge considers that advisable in the interests of justice and orders it before the cards are drawn. Those additional jurors hear the evidence. If more than twelve remain after the charge, section 652.1 requires reduction to twelve by the statutory random process.

Alternate jurors serve a different purpose. Before the draw, the judge may order one or two alternates under section 631(2.1). Under section 642.1, they attend when presentation of the evidence on the merits begins and replace absent jurors in the order drawn. An unused alternate is then excused. Alternates are therefore not a reserve that can be brought back after missing part of the evidence.

Section 644 permits discharge for illness or other reasonable cause. Where a juror dies or is discharged during the trial, the remaining jury continues if it has not fallen below ten, unless the judge directs otherwise. This explains why “a jury always has twelve members” is an incomplete description. A reduced jury still applies the same burden, and any verdict must be unanimous. If fewer than ten remain, section 644(3) permits the judge, with the parties’ consent, to discharge the jurors and finish the trial alone. Neither a nine-person jury nor a unilateral decision to change the trial mode is authorized by that provision.

Questions require a judicial answer

Section 647 allows the judge to permit jurors to separate before they retire to consider the verdict. Once deliberations begin, they remain under the charge of a court officer, with outside communications controlled by the judge. These arrangements protect the decision from outside influence while allowing proper accommodation and requests for assistance.

Deliberations allow jurors to consider the case together. A question sent by the jury should be placed before counsel so that the judge can hear submissions and give an accurate, responsive answer on the record. A note revealing confusion about reasonable doubt may require more than repeating the same words that caused the confusion. The jury must remain able to seek clarification without feeling pressured to produce a verdict quickly.

The parties must not privately answer a juror’s question. Nor should a judge delegate a disputed legal answer to a court employee. The formal process preserves the accused’s opportunity to participate and permits later review of what the jury was told. Where the request concerns access to evidence, the response must preserve the proper evidentiary context and the restrictions already imposed.

The confidentiality rule in section 649 protects deliberative information, subject to its statutory exceptions. These include specified obstruction-of-justice investigations and proceedings, and post-trial treatment or counselling for health issues related to jury service by a professional authorized under provincial law. Confidentiality supports candid discussion. It does not license outside research or private communication during the trial. As R. v. Pan, 2001 SCC 42, explains, a lawful inquiry may establish exposure to external information without probing the effect on jurors’ protected reasoning or votes.

Unanimity and an unresolved disagreement

Unanimity is required for the verdict. For conviction, all deliberating jurors must be satisfied beyond a reasonable doubt of the essential elements. They need not agree on every subsidiary fact or adopt identical reasoning where the law permits different factual routes to the same required conclusion. An acquittal also requires agreement on the verdict, but jurors need not share the same reason for their doubt. The charge must make clear which matters require agreement in the particular prosecution.

A majority favouring conviction cannot compel a dissenting juror to abandon a reasonable doubt. Conversely, a disagreement does not itself produce an acquittal. The judge may encourage further careful discussion without coercing agreement or invoking the expense of another trial as a reason to convict. Under section 653, a jury that cannot agree and whose further detention would be useless may be discharged.

A resulting mistrial leaves the charge unresolved and can lead to another trial. It differs from an acquittal and from a permanent judicial stay for abuse of process. Under section 653.1, disclosure, admissibility and Charter rulings made in the aborted trial bind the parties at the new trial if they were made, or could have been made, before presentation of the evidence on the merits. The court may depart from that effect if satisfied that it would not serve the interests of justice. A new jury therefore does not necessarily mean every preliminary issue begins again.

Where the jury does reach a verdict, it ordinarily gives no reasons explaining its internal assessment. Preserve the actual instructions, exhibits, objections and answers to jury questions. Those materials allow a reviewing court to assess the legal framework within which the verdict was reached. The judge ordinarily determines the sentence following a conviction; jurors’ task of deciding guilt does not give them a general authority to negotiate a punishment as part of their verdict.

An accused may also challenge a conviction as unreasonable. Under R. v. Biniaris, 2000 SCC 15, the appellate court examines whether a properly instructed jury acting judicially could reasonably have convicted. It must explain the evidentiary basis for intervention; a personal feeling of doubt alone is insufficient. Review of an instruction for legal error and review of an unreasonable verdict are distinct inquiries, developed in criminal appeals.

Practice Checklist

• Confirm jury entitlement, trial jurisdiction and the applicable election or consent.
• Use the pre-hearing conference to identify applications and realistic hearing needs.
• Separate panel concerns, excusal, stand-aside directions and challenges for cause.
• Keep excluded evidence and restricted uses clear throughout the hearing.
• Prepare instructions linking offence elements, defences and evidence.
• Raise errors while the judge can still correct them and preserve the record.
• Address jury questions through the judge with participation by the parties.
• Distinguish a unanimous verdict, a discharged jury, a new trial and a judicial stay.