Right to Jury Trial

Right to Jury Trial

Section 11(f) of the Charter of Rights and Freedoms guarantees everyone the right, except in the case of an offence under military law tried before a military tribunal, to the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe penalty. In short, it guarantees the right to a jury trial where the accused faces more than five years in prison. Section 11(f) applies only to individuals and not to corporations.

What is the Right to the Benefit of Trial by Jury?

Pursuant to section 11(f) of the Charter, everyone who has been charged with an offence and is facing five years or more in prison will be entitled to a jury trial if they so choose. This right only applies where the accused is not under the jurisdiction of a military tribunal.

Criminal offences in Canada are categorized as either summary conviction, indicatable, or hybrid offences. Hybrid offences are offences that can be prosecuted either summarily or by indictment. The Crown will determine whether a matter proceeds summarily or by indictment.

Where the matter is by indictment and the maximum penalty is five years or more in prison, the accused has the right to elect to be tried by a judge and jury or a judge alone. The accused is not required to have their trial before a judge and jury but may do so if they so choose. This also does not mean that the accused has a right to a trial by judge alone. In some situations, the accused may be forced to have a trial by judge and jury. This may occur where the case where the charges are very serious.

Example

Person A is charged with sexual assault. The Crown elects to proceed by indictment, meaning the maximum penalty if convicted is ten years in prison. Person A has the right to a trial by judge and jury if they so choose.

When is the Right Triggered?

The right to be tried by a jury where the maximum penalty for the offence is five years or more in prison is triggered as soon as an individual is charged with an offence. As long as the maximum penalty for the offence is five years or more in prison, the right will follow the accused throughout the criminal process up until the matter gets to trial or resolves in some other way.

Cases

R. v. Kokopenace, [2015] 2 SCR 398

In the case of R. v. Kokopenace, the Supreme Court of Canada indicated that in selecting a jury roll, the Sheriff must draw prospective jurors from the community using a “neutral, broadly inclusive process favouring neither the prosecution nor the accused.” [at para 150].

R. v. Chouhan, 2021 SCC 26

In the case of R. v. Chouhan, the Supreme Court of Canada again addressed the issue of jury composition in relation to the section 11(f) Charter right to a jury trial. The Court indicated that section 11(f) does not guarantee accused persons the right to proportionate representation in the jury. The Court reiterated that the jurisprudence indicates that accused individuals are entitled to a representative jury. This right requires that a broad cross-section of the community be sourced when creating the list of potential jurors. Aside from this, 11(f) offers no further guarantees in relation to the composition of the jury.

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