636

February 6, 2019 Dallas Mack

636 [Repealed, 1992, c. 41, s. 2]

637

February 6, 2019 Dallas Mack

637 [Repealed, 1992, c. 41, s. 2]

638

February 6, 2019 Dallas Mack

Challenge for cause

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 impartial;

(c) a juror has been convicted of an offence for which they were sentenced to a term of imprisonment of two years or more and for which no pardon or record suspension is in effect;

(d) a juror is not a Canadian citizen;

(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.

No other ground

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

(3) and (4) [Repealed, 1997, c. 18, s. 74]

(5) [Repealed, R.S., 1985, c. 31 (4th Supp.), s. 96]

639

February 6, 2019 Dallas Mack

Challenge in writing

639 (1) Where a challenge is made on a ground mentioned in section 638, the court may, in its discretion, require the party that challenges to put the challenge in writing.

Form

(2) A challenge may be in Form 41.

Denial

(3) A challenge may be denied by the other party to the proceedings on the ground that it is not true.

640

February 6, 2019 Dallas Mack

Determination of challenge for cause

640 (1) If a challenge is made on a ground mentioned in section 638, the judge shall determine whether the alleged ground is true or not and, if the judge is satisfied that it is true, the juror shall not be sworn.

Exclusion order

(2) On the application of the accused or prosecutor or on the judge’s own motion, the judge 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 judge is of the opinion that the order is necessary to preserve the impartiality of the jurors.

641

February 6, 2019 Dallas Mack

Calling persons who have stood by

641 (1) If a full jury and any alternate jurors have not been sworn and no cards remain to be drawn, the persons who have been directed to stand by shall be called again in the order in which their cards were drawn and shall be sworn, unless excused by the judge or challenged by the accused or the prosecutor.

Other persons becoming available

(2) If, before a person is sworn as a juror under subsection (1), other persons in the panel become available, the prosecutor may require the cards of those persons to be put into and drawn from the box in accordance with section 631, and those persons shall be challenged, directed to stand by, excused or sworn, as the case may be, before the persons who were originally directed to stand by are called again.

642

February 6, 2019 Dallas Mack

Summoning other jurors when panel exhausted

642 (1) If a full jury and any alternate jurors considered advisable cannot be provided notwithstanding that the relevant provisions of this Part have been complied with, the court may, at the request of the prosecutor, order the sheriff or other proper officer to summon without delay as many persons, whether qualified jurors or not, as the court directs for the purpose of providing a full jury and alternate jurors.

Orally

(2) Jurors may be summoned under subsection (1) by word of mouth, if necessary.

Adding names to panel

(3) The names of the persons who are summoned under this section shall be added to the general panel for the purposes of the trial, and the same proceedings shall be taken with respect to calling and challenging those persons, excusing them and directing them to stand by as are provided in this Part with respect to the persons named in the original panel.

642.1

February 6, 2019 Dallas Mack

Substitution of alternate jurors

642.1 (1) Alternate jurors shall attend at the commencement of the presentation of the evidence on the merits and, if there is not a full jury present, shall replace any absent juror, in the order in which their cards were drawn under subsection 631(3).

Excusing of alternate jurors

(2) An alternate juror who is not required as a substitute shall be excused.

643

February 6, 2019 Dallas Mack

Who shall be the jury

643 (1) The 12, 13 or 14 jurors who are sworn in accordance with this Part and present at the commencement of the presentation of the evidence on the merits shall be the jury to hear the evidence on the merits.

Names of jurors

(1.1) The name of each juror, including alternate jurors, who is sworn shall be kept apart until the juror is excused or the jury gives its verdict or is discharged, at which time the name shall be returned to the box as often as occasion arises, as long as an issue remains to be tried before a jury.

Same jury may try another issue by consent

(2) The court may try an issue with the same jury in whole or in part that previously tried or was drawn to try another issue, without the jurors being sworn again, but if the prosecutor or the accused objects to any of the jurors or the court excuses any of the jurors, the court shall order those persons to withdraw and shall direct that the required number of cards to make up a full jury be drawn and, subject to the provisions of this Part relating to challenges, orders to excuse and directions to stand by, the persons whose cards are drawn shall be sworn.

Sections directory

(3) Failure to comply with the directions of this section or section 631, 635 or 641 does not affect the validity of a proceeding.

644

February 6, 2019 Dallas Mack

Discharge of juror

644 (1) Where in the course of a trial the judge is satisfied that a juror should not, by reason of illness or other reasonable cause, continue to act, the judge may discharge the juror.

Replacement of juror

(1.1) A judge may select another juror to take the place of a juror who by reason of illness or other reasonable cause cannot continue to act, if the jury has not yet begun to hear evidence, either by drawing a name from a panel of persons who were summoned to act as jurors and who are available at the court at the time of replacing the juror or by using the procedure referred to in section 642.

Trial may continue

(2) Where in the course of a trial a member of the jury dies or is discharged pursuant to subsection (1), the jury shall, unless the judge otherwise directs and if the number of jurors is not reduced below ten, be deemed to remain properly constituted for all purposes of the trial and the trial shall proceed and a verdict may be given accordingly.

Trial may continue without jury

(3) If in the course of a trial the number of jurors is reduced below 10, the judge may, with the consent of the parties, discharge the jurors, continue the trial without a jury and render a verdict.

645

February 6, 2019 Dallas Mack

Trial continuous

645 (1) The trial of an accused shall proceed continuously subject to adjournment by the court.

Adjournment

(2) A judge may adjourn a trial from time to time in the same sittings.

Formal adjournment unnecessary

(3) For the purpose of subsection (2), no formal adjournment of trial or entry thereof is required.

Marginal note:Questions reserved for decision

(4) A judge, in any case tried without a jury, may reserve final decision on any question raised at the trial, or any matter raised further to a pre-hearing conference, and the decision, when given, shall be deemed to have been given at the trial.

Questions reserved for decision in a trial with a jury

(5) In any case to be tried with a jury, the judge before whom an accused is or is to be tried has jurisdiction, before any juror on a panel of jurors is called pursuant to subsection 631(3) or (3.1) and in the absence of any such juror, to deal with any matter that would ordinarily or necessarily be dealt with in the absence of the jury after it has been sworn.

646

February 6, 2019 Dallas Mack

Taking evidence

646 On the trial of an accused for an indictable offence, the evidence of the witnesses for the prosecutor and the accused and the addresses of the prosecutor and the accused or counsel for the accused by way of summing up shall be taken in accordance with the provisions of Part XVIII, other than subsections 540(7) to (9), relating to the taking of evidence at preliminary inquiries.

647

February 6, 2019 Dallas Mack

Separation of jurors

647 (1) The judge may, at any time before the jury retires to consider its verdict, permit the members of the jury to separate.

Keeping in charge

(2) Where permission to separate under subsection (1) cannot be given or is not given, the jury shall be kept under the charge of an officer of the court as the judge directs, and that officer shall prevent the jurors from communicating with anyone other than himself or another member of the jury without leave of the judge.

Non-compliance with subsection (2)

(3) Failure to comply with subsection (2) does not affect the validity of the proceedings.

Empanelling new jury in certain cases

(4) Where the fact that there has been a failure to comply with this section or section 648 is discovered before the verdict of the jury is returned, the judge may, if he considers that the failure to comply might lead to a miscarriage of justice, discharge the jury and

(a) direct that the accused be tried with a new jury during the same session or sittings of the court; or

(b) postpone the trial on such terms as justice may require.

Refreshment and accommodation

(5) The judge shall direct the sheriff to provide the jurors who are sworn with suitable and sufficient refreshment, food and lodging while they are together until they have given their verdict.

648

February 6, 2019 Dallas Mack

Restriction on publication

648 (1) After permission to separate is given to members of a jury under subsection 647(1), no information regarding any portion of the trial at which the jury is not present shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.

Offence

(2) Every one who fails to comply with subsection (1) is guilty of an offence punishable on summary conviction.

(3) [Repealed, 2005, c. 32, s. 21]

649

February 6, 2019 Dallas Mack

Disclosure of jury proceedings

649 Every member of a jury, and every person providing technical, personal, interpretative or other support services to a juror with a physical disability, who, except for the purposes of

(a) an investigation of an alleged offence under subsection 139(2) in relation to a juror, or

(b) giving evidence in criminal proceedings in relation to such an offence,

discloses any information relating to the proceedings of the jury when it was absent from the courtroom that was not subsequently disclosed in open court is guilty of an offence punishable on summary conviction.

650

February 6, 2019 Dallas Mack

Accused to be present

650 (1) Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial.

Video links

(1.‍1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken.

Video links

(1.‍2) If the court so orders, an accused who is confined in prison may appear by closed-circuit television or videoconference, for any part of the trial other than a part in which the evidence of a witness is taken, as long as the accused is given the opportunity to communicate privately with counsel if they are represented by counsel.

Exceptions

(2) The court may

(a) cause the accused to be removed and to be kept out of court, where he misconducts himself by interrupting the proceedings so that to continue the proceedings in his presence would not be feasible;

(b) permit the accused to be out of court during the whole or any part of his trial on such conditions as the court considers proper; or

(c) cause the accused to be removed and to be kept out of court during the trial of an issue as to whether the accused is unfit to stand trial, where it is satisfied that failure to do so might have an adverse effect on the mental condition of the accused.

To make defence

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.

650.01

February 6, 2019 Dallas Mack

Designation of counsel of record

650.01 (1) An accused may appoint counsel to represent the accused for any proceedings under this Act by filing a designation with the court.

Contents of designation

(2) The designation must contain the name and address of the counsel and be signed by the accused and the designated counsel.

Effect of designation

(3) If a designation is filed,

(a) the accused may appear by the designated counsel without being present for any part of the proceedings, other than

(i) a part during which oral evidence of a witness is taken,

(ii) a part during which jurors are being selected, and

(iii) an application for a writ of habeas corpus;

(b) an appearance by the designated counsel is equivalent to the accused’s being present, unless the court orders otherwise; and

(c) a plea of guilty may be made, and a sentence may be pronounced, only if the accused is present, unless the court orders otherwise.

When court orders presence of accused

(4) If the court orders the accused to be present otherwise than by appearance by the designated counsel, the court may

(a) issue a summons to compel the presence of the accused and order that it be served by leaving a copy at the address contained in the designation; or

(b) issue a warrant to compel the presence of the accused.

650.02

February 6, 2019 Dallas Mack

Remote appearance

650.‍02 The prosecutor or the counsel designated under section 650.‍01 may appear before the court by audioconference or videoconference, if the technological means is satisfactory to the court.

650.1

February 6, 2019 Dallas Mack

Pre-charge conference

650.1 A judge in a jury trial may, before the charge to the jury, confer with the accused or counsel for the accused and the prosecutor with respect to the matters that should be explained to the jury and with respect to the choice of instructions to the jury.

651

February 6, 2019 Dallas Mack

Summing up by prosecutor

651 (1) Where an accused, or any one of several accused being tried together, is defended by counsel, the counsel shall, at the end of the case for the prosecution, declare whether or not he intends to adduce evidence on behalf of the accused for whom he appears and if he does not announce his intention to adduce evidence, the prosecutor may address the jury by way of summing up.

Summing up by accused

(2) Counsel for the accused or the accused, where he is not defended by counsel, is entitled, if he thinks fit, to open the case for the defence, and after the conclusion of that opening to examine such witnesses as he thinks fit, and when all the evidence is concluded to sum up the evidence.

Accused’s right of reply

(3) Where no witnesses are examined for an accused, he or his counsel is entitled to address the jury last, but otherwise counsel for the prosecution is entitled to address the jury last.

Prosecutor’s right of reply where more than one accused

(4) Where two or more accused are tried jointly and witnesses are examined for any of them, all the accused or their respective counsel are required to address the jury before it is addressed by the prosecutor.