A jury trial is one in which a panel of ordinary citizens, rather than a judge alone, decides whether the Crown has proven the accused's guilt beyond a reasonable doubt. Jury trials play a central role in the Canadian justice system's most serious cases. This guide explains where the right to a jury trial comes from, when a jury trial is actually required, and how jury selection, verdicts, and jury secrecy generally work. It is general information only, not legal advice about a specific case.
The Charter Right to a Jury Trial
Section 11(f) of the Canadian Charter of Rights and Freedoms gives a person charged with an offence the right to "the benefit of trial by jury where the maximum punishment for the offence is imprisonment for five years or a more severe punishment," subject to a narrow exception for offences under military law tried by military tribunal. In practice, this means an accused facing an offence with a maximum penalty of five years or more generally has access to a jury trial, though as explained in our guide to summary, indictable, and hybrid offences, if the Crown elects to proceed summarily on a hybrid offence, the maximum penalty drops below five years and the section 11(f) jury right does not apply to that prosecution.
Section 469 Offences
A small category of especially serious offences, listed in section 469 of the Criminal Code, including murder, treason, and a handful of other offences against the state, must generally be tried by a judge and jury in the Superior Court of Justice, rather than being left to the ordinary election process. A judge alone trial is only available for a section 469 offence where both the accused and the Attorney General consent. Our guide to judge alone trials discusses this exception in more detail. Homicide offences on this site fall within this category.
Electing a Jury Trial
For most indictable offences outside the section 469 category, an accused is given an election under section 536 of the Criminal Code among trial by a judge of the Ontario Court of Justice, trial by a judge of the Superior Court without a jury, or trial by a judge and jury in the Superior Court. Choosing the third option means the case proceeds as a jury trial. Certain less serious indictable offences, listed in section 553 of the Criminal Code as "absolute jurisdiction" offences, do not carry any election at all and are tried by a judge alone in the Ontario Court of Justice regardless of the accused's preference.
Whether a jury trial is available, required, or simply one option among several depends entirely on the specific offence charged. A lawyer can confirm what applies to a particular charge.
How Jury Selection Generally Works
Before a jury trial begins, a panel of prospective jurors, drawn from the community, is summoned to court. From that panel, twelve jurors are generally selected through a process that allows the Crown and the defence to challenge a limited number of prospective jurors, and to challenge for cause in specific circumstances, such as a concern about bias. The goal of this process is generally to arrive at a jury that can assess the evidence fairly and impartially. Alternate jurors may also be selected in some cases in the event a juror is unable to continue partway through a longer trial.
How a Jury Trial Proceeds
Once selected, the jury hears the evidence presented by both the Crown and the defence, generally following the same broad structure as a judge alone trial: opening statements, the Crown's evidence, the defence's evidence if any is called, and closing submissions. Throughout, the judge continues to rule on legal questions such as the admissibility of evidence, generally outside the jury's presence where necessary, while the jury's role stays focused on the facts. Before the jury retires to deliberate, the judge delivers instructions, often called a "charge to the jury," explaining the relevant law, the elements the Crown must prove, and the standard of proof beyond a reasonable doubt that must be met.
The Unanimous Verdict Requirement
A Canadian criminal jury is composed of twelve members, and its verdict must be unanimous. All twelve jurors must agree on guilt or acquittal before a verdict can be returned; a jury cannot convict, or acquit, by majority. This is a significant procedural safeguard, since it means a single juror who is not convinced beyond a reasonable doubt can prevent a conviction.
Jury Secrecy Under Section 649
Section 649 of the Criminal Code makes it a criminal offence, punishable on summary conviction, for a juror to disclose information about the jury's deliberations that was not later disclosed in open court. The Supreme Court of Canada has recognized two main reasons for this rule: protecting full and frank debate among jurors without fear that their views might later be exposed to ridicule or pressure, and protecting jurors' own privacy from harassment after the trial. Limited exceptions exist, for example allowing a former juror to discuss jury service with a health professional for treatment related to their service. This secrecy is also why jury verdicts, unlike judge alone verdicts, are announced without accompanying reasons.
Hung Juries
If a jury cannot reach a unanimous verdict after genuine deliberation, the judge may conclude that further detention of the jury would serve no purpose and discharge the jury. This is often called a "hung jury." A hung jury is not an acquittal; it generally means the matter can be retried before a new jury, if the Crown chooses to proceed again, or resolved in another way.
Frequently Asked Questions
Do I automatically get a jury trial for any serious charge?
Not automatically. Whether a jury trial is available depends on the offence's classification and maximum penalty, and for hybrid offences, on how the Crown elects to proceed.
Can the Crown insist on a jury trial if I want judge alone?
For most offences, the choice of mode of trial generally belongs to the accused, subject to the section 469 exception, where judge alone requires the Crown's consent as well.
How are jurors chosen from the community?
Jurors are generally summoned from source lists maintained for that purpose, and a panel is drawn from that pool for each trial. The exact administrative process can vary and is generally handled by court services rather than the parties.
Can jurors ever talk about what happened in the jury room?
Generally, no. Section 649 of the Criminal Code makes disclosing jury deliberations an offence, with narrow exceptions.
What happens if the jury cannot agree?
The judge may discharge the jury, resulting in a hung jury. This is not an acquittal, and the Crown can choose whether to seek a new trial.
Does a jury explain why it reached its verdict?
No. A jury's verdict is announced without reasons, unlike a judge alone verdict, which generally comes with reasons for judgment.