DATE: 2005-02-21

DOCKET: C36995

C36827

COURT OF APPEAL FOR ONTARIO

ROSENBERG, FELDMAN and SIMMONS J.J.A.

B E T W E E N:

C36995

HER MAJESTY THE QUEEN

Murray H. Shore and Paul W. Slocombe for the appellant Brown

Respondent

• and -

Christopher A. Avery

RAYMOND BROWN Appellant

for the appellant Walker

Lisa Joyal for the Crown respondent

A N D B E T W E E N:

(C36827)

HER MAJESTY THE QUEEN

Respondent

• and -

NICHOLAS WALKER

Appellant

Heard: November 25, 2004

On appeal from the convictions entered by Justice Harry LaForme of the Superior Court of Justice sitting with the jury on November 11, 2000.

SIMMONS J.A.:

I. Overview

[1] Raymond Brown and Nicholas Walker were tried together and convicted of several offences arising from a bank robbery. Since both appellants are black, defence counsel at trial were permitted to challenge prospective jurors for cause based on R. v. Parks (1993), 84 C.C.C. (3d) 353 (Ont. C.A.), leave to appeal refused 87 C.C.C. (3d) vi (S.C.C.). The appellants raise three grounds of appeal relating to the procedures used in empanelling the jury that tried them.

[2] First, the appellants submit that the trial judge's instructions to the triers concerning the challenge for cause procedure were inadequate. In particular, the appellants say that the trial judge failed to explain four important concepts to the triers: i) that the triers were to decide the Parks question on the balance of probabilities; ii) that the triers’ decision had to be unanimous; iii) that the triers could retire to the jury room or discuss the matter in the jury box; and iv) that if the triers could not agree within a reasonable time they were to say so.

[3] As part of their first ground, the appellants also contend that the trial judge failed to provide a simple and clear explanation as to the importance and meaning of their task. In support of this submission the appellants point to the fact that several sets of triers decided that prospective jurors were unacceptable, even though the prospective jurors indicated that they would not be prejudiced.

[4] Second, Brown contends that the trial judge exceeded his jurisdiction by ruling that the Crown and both appellants were entitled to an extra peremptory challenge when one of the sworn jurors had to be replaced during the jury selection process.

[5] Third, both appellants submit that when two additional sworn jurors had to be replaced, the trial judge erred by contradicting his earlier ruling and holding that on that occasion the parties would not be entitled to extra peremptory challenges, and by failing to declare a mistrial.

[6] At the conclusion of the appellants’ submissions we informed counsel that the appeals would be dismissed with reasons to follow. My reasons for dismissing the appeal are set out below.

II. Background

[7] The appellants Brown and Walker are cousins. In the fall of 2000, they were tried together for several offences arising out of the 1998 armed robbery of a bank where Brown was employed as a customer service representative. Following a trial before LaForme J. sitting with a jury, Brown was convicted of robbery, use of an imitation firearm while committing an indictable offence, and forcible confinement. Walker was convicted of robbery, use of an imitation firearm while committing an indictable offence, forcible confinement, and possession of property obtained by the commission of an offence.

[8] As already noted, the issues on appeal relate solely to the procedures used in empanelling the jury that found the appellants guilty. The relevant facts are set out below under two headings: i) the first day of jury selection, and ii) the second day of jury selection. The trial judge's instructions to the triers concerning the challenge for cause procedure are included under the heading, the first day of jury selection. All three sworn jurors were replaced on the second day of jury selection.

i) the first day of jury selection

[9] Jury selection began on September 18, 2000. After the appellants were arraigned and pleaded not guilty, the trial judge canvassed the jury panel for persons who would be unable to serve as jurors because they were closely connected to a prospective witness, could not speak English, were not Canadian citizens, had personal knowledge of the facts of the case or had physical problems. The trial judge then briefly explained the jury selection procedure.

[10] The trial judge began his explanation of the overall procedure with a brief discussion of challenge for cause:

Now ladies and gentlemen, it is fundamental in our system of justice that a fair, impartial and unbiased jury try any person accused of a criminal offence. The Criminal Code specifically entitles the Crown or the defence to challenge or question any proposed juror to test whether or not that person might favour one side or the other. The process of testing impartiality or bias of a proposed juror is called a challenge for cause. The challenge for cause works this way. Please listen carefully. Two persons in a very short proceeding I'll call a mini trial, will act as triers or judges if you will. The triers will then listen to the proposed juror who will under oath or affirmation answer a single question that will attempt to explore the area of concern. Now you may be certain that the question itself is not intended to pry into your personal lives. After the question and your answer, the two triers will then listen to some brief instructions from me, and will then render a decision or a verdict if you will. Now simply put, the decision of the triers will be whether the proposed juror is acceptable or not acceptable. That is the purpose of the process that I just outlined to you...

[11] The trial judge then explained the peremptory challenge procedure. In doing so he indicated that, to facilitate jury selection, he would divide the panel into groups of twenty. He asked that panel members identify themselves when called forward if the anticipated trial time of four weeks posed a hardship. As individuals were called forward to make up the groups of twenty, thirty panel members were excused for undue hardship and one panel member was excused because she worked in the banking industry. The panel was exhausted after two triers and two groups of twenty were identified.

[12] The two groups of twenty were led from the courtroom and jury selection commenced. Beginning with the first two triers, and thereafter as individual jurors replaced a trier, the trial judge provided the triers with the following preliminary instructions[^1]:

[X] has been challenged as a prospective juror as provided by the Criminal Code of Canada on the grounds that [s/he] is not indifferent between the Queen and the persons accused namely Mr. Walker and Mr. Brown. In effect, it is alleged that [X] may be biased or prejudiced one way or the other, and because of that would not judge the evidence neutrally or impartially. Your task is to listen to the answer to the question and determine whether the ground of challenge is true or not true. If you agree that the juror would not judge the evidence neutrally or impartially the challenge is made out and you will decide not acceptable. On the other hand, if you believe the person will judge the evidence neutrally or impartially you will decide acceptable. Now you’ll decide this question by determining which of the answers you believe is more likely to be true. Simply stated, is the person acceptable or not acceptable.

[13] Following the Parks question and the prospective juror's answer, the trial judge instructed the triers as follows:

Now triers, again the question for you to decide is whether or not a bias or prejudice existed in [X's] mind. That is, because of Mr. Walker and Mr. Brown's racial background would that cause [him/her] to discriminate for or against them when arriving at [him/her] verdict. You must not engage in speculation or guessing, but rather you must decide on the basis of the answer that was given to the question. If your answer is yes, there is a bias or prejudice that would prevent [him/her] from judging the evidence neutrally or impartially, you will decide not acceptable. Or if your answer is no, there is no bias or prejudice then your answer will be acceptable. Please discuss it between you and give us your answer.

[14] In cases where a prospective juror was not sworn and therefore the two existing triers tried the next challenge for cause, rather than repeating his original instructions the trial judge said the following:

Preliminary instruction

Now once again triers, your task is to listen to the answer to the question, and if you agree that the juror would not judge the evidence neutrally or impartially the challenge would have been made out and you will decide not acceptable, or if you believe the person will judge the evidence neutrally or impartially you will then decide acceptable.

Final instruction

Triers, if your answer is yes there is a bias or prejudice that would prevent [X] from judging the evidence neutrally or impartially you will decide not acceptable. On the other hand if the answer is no, there is no bias or prejudice then your decision will be acceptable. Again please discuss it.

[15] Following the lunch break on the first day of jury selection, counsel for the appellants raised a concern that, from amongst the remaining seven members of the first group of twenty prospective jurors who had not yet been through the selection process, at least three prospective jurors had seen the appellants in handcuffs over the lunch break. At the request of appellants' counsel and out of an abundance of caution, the trial judge excused the seven remaining members of the first group of twenty prospective jurors.

[16] The jury panel was exhausted at the end of the first day of jury selection. Nine jurors were selected, six prospective jurors were found unacceptable on the challenge for cause, and eight prospective jurors were excused. Of the six prospective jurors who were found unacceptable on the challenge for cause, one answered the Parks question “[n]o, I'm not prejudiced”, two answered “I don't think so”, one answered “[h]as nothing to do with it”, and two answered “[n]o”.

[17] During the first day of jury selection, counsel used a total of seventeen peremptory challenges (Crown counsel--three peremptory challenges; counsel for Mr. Brown--seven peremptory challenges; and counsel for Mr. Walker--seven peremptory challenges).

ii) the second day of jury selection

[18] On September 19, 2000, the trial judge opened proceedings by informing the parties that he had received a note from juror number two indicating that she had been suffering from nervous tension, anxiety, and panic attacks, and that her doctor felt that serving on the jury would be injurious to her health. Accordingly, the trial judge proposed that juror number two be replaced and that all parties receive an additional peremptory challenge.

[19] Both defence counsel objected to the procedure proposed by the trial judge. In addition to pointing out that there is no statutory authority for restoring a peremptory challenge, counsel submitted that because the juror in question was not the last juror selected, it was necessary to recommence jury selection from the beginning. Counsel also expressed concern that once juror number two was excused, other jurors would follow her example and asked to be excused as well.

[20] Crown counsel pointed out that there is a provision in the Criminal Code that allows jurors to be replaced, but that the provision does not speak about restoring peremptory challenges. He submitted that the proper course would be to proceed without changing the available challenges. However, he also stated, “if Your Honour wishes to give us one challenge back, that's fair”.

[21] After hearing submissions, the trial judge noted that there is no prohibition in the Criminal Code against restoring peremptory challenges and said that, in his view, it was the fair thing to do. He therefore directed that juror number two be replaced and that one peremptory challenge be restored to each party[^2].

[22] When the jury entered the courtroom, the trial judge informed them that juror number two had been excused as a result of a medical matter. Jurors numbered three through nine each moved up one position and the appellants were re-arraigned in front of a new jury panel. The trial judge then repeated his explanation of challenge for cause and the peremptory challenge procedure. As two groups of twenty were selected, twenty-six panel members were excused for hardship.

[23] Before jury selection continued, the trial judge informed the parties that he had received notes from current juror number two and current juror number seven. Juror number two raised a scheduling problem if the trial exceeded four weeks; juror number seven asked to be excused because of an anxiety attack. Defence counsel expressed a concern that the jury panel had been informed in advance that they would likely only be required for a period of one or two weeks. They requested a mistrial and asked that a new panel be summoned and informed of the expected duration of the trial. The trial judge rejected defence counsel’s requests, indicating that the proper course was simply to excuse those jurors who could not continue, and he once again proposed restoring peremptory challenges.

[24] The trial Crown objected to the trial judge's suggestion that additional peremptory challenges be restored. He pointed out that restoring additional peremptory challenges at that stage would result in the Crown having more than the maximum number of challenges and submitted that it was not possible to go beyond the maximum. After the trial judge ruled that no further peremptory challenges would be restored, defence counsel once again requested a mistrial. They contended that there was now no connection between the number of peremptory challenges that they had and the number of jurors to be selected, that their ability to formulate a jury selection strategy had been destroyed, and that the jury selection process had become arbitrary.

[25] The trial judge rejected the defence request for a mistrial and proceeded with jury selection. He informed the jury that jurors number two and seven had been excused for personal reasons and once again directed that jurors three through six and juror eight each move up one position. The trial judge then repeated the complete preliminary and final instructions to the triers set out at paragraphs 12 and 13 above.

[26] The fourth prospective juror called forward was accepted by the triers and all counsel. However, before he was sworn, he asked to be excused because of flu symptoms. After the trial judge excused this prospective juror, defence counsel renewed their request for a mistrial, claiming that as a result of the number of jurors and prospective jurors asking to be excused, it appeared that the jury panel was contaminated. Once again, the trial judge rejected defence counsels' request.

[27] Jury selection was completed after a total of thirty-two prospective jurors were called forward on the second day of jury selection. From amongst the thirty-two panel members called forward, seven prospective jurors were found unacceptable on the challenge for cause, and three prospective jurors were excused. Of the seven prospective jurors who were found unacceptable on the challenge for cause, three answered the Parks question “[n]o”, one answered “I don't think so”, and four indicated a possibility that they would be prejudiced. From amongst the three prospective jurors who were excused, one was excused at the request of the defence because she was involved in the banking industry.

[28] On the second day of jury selection, counsel used a total of sixteen peremptory challenges (Crown counsel--four peremptory challenges; counsel for Mr. Brown--six peremptory challenges; and counsel for Mr. Walker--six peremptory challenges), yielding totals of seven peremptory challenges used by the Crown and thirteen peremptory challenges used by each defence counsel.

III. Analysis

i) Were the trial judge's instructions to the triers concerning the challenge for cause procedure inadequate?

[29] This is the latest in a series of cases heard by this court[^3] that have raised the issue of the adequacy of instructions to triers concerning the challenge for cause procedure. The basic elements of the necessary instructions concerning challenge for cause are set out in R. v. Hubbert (1975), 29 C.C.C. (2d) 279 at 294 (Ont. C.A.), aff'd (1977) 33 C.C.C. (2d) 207 (S.C.C.):

When two triers have been called and sworn, the trial Judge should explain briefly to them what is happening and what their function is. He should tell them they are to decide “whether the challenged juror is indifferent -- that is, is impartial -- between the Crown and the accused”, that they are to decide the question on the balance of probabilities, that the decision must be that of both of them, that they may retire to the jury room or discuss it right where they are, that if they cannot agree within a reasonable time, they are to say so.

[30] Further, in R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.) and R. v. Douglas (2002), 170 C.C.C. (3d) 126 (Ont. C.A.), this court emphasized the desirability of assisting the jury in understanding the importance and purpose of the challenge for cause process and the meaning of partiality.

[31] While “[t]here is no doubt that the selection of an impartial jury is crucial to a fair trial”[^4] and that failure to instruct the triers appropriately can have a dramatic negative impact on the jury selection process[^5], “[t]he instructions that must be given to the triers [concerning challenge for cause] need not be complicated”[^6].

[32] Further, as this court explained in R. v. McLean (2002), 170 C.C.C. (3d) 330 at para. 7, trial judges have a wide discretion in matters involving the challenge for cause process. Accordingly, it would be wrong to adopt “a highly rigid, technical approach” in assessing the adequacy of instructions given to the triers. Rather, the correct approach is to consider whether, “viewed in their entirety, the instructions provided [the triers] with an adequate understanding of the nature of their task and the procedure they were to follow in order to select an impartial jury”.

[33] As other decisions of this court have illustrated[^7], the fact that a trial judge may not have recited the precise words used in Hubbert, or may have omitted one or more of its recommended elements, does not necessarily give rise to reversible error. Rather, the issue to be determined is whether the circumstances of the particular case reveal a reasonable likelihood that the triers misunderstood the nature of their task and the procedure they were to follow.

[34] Based on my review of the record relating to the jury selection procedure in this case, I am satisfied, for four reasons, that the instructions given by the trial judge were sufficient.

[35] First, the trial judge's explanation of the challenge for cause procedure as set out at paragraph 10 of these reasons, combined with his instructions to the triers and the Parks question itself, provided an adequate explanation of the nature and importance of a race-based challenge for cause, the function of the triers, and the meaning of impartiality. Read in combination, the trial judge's explanation and instructions and the Parks question include the following elements:

i) it is fundamental in our system of justice that a fair, impartial and unbiased jury try any person accused of a criminal offence;

ii) the Criminal Code specifically entitles the Crown or the defence to challenge or question any proposed juror to test whether or not that person might favour one side or the other;

iii) challenge for cause involves an allegation that a potential juror may be biased or prejudiced one way or the other, and because of that would not judge the evidence neutrally or impartially;

iv) the process of testing impartiality or bias of a proposed juror is called a challenge for cause and involves two persons (triers) acting as judges in a mini-trial to determine whether the ground of challenge is true or not true; and

v) in this case, the specific issue to be determined was whether a proposed juror's ability to judge the evidence without bias, prejudice or partiality would be affected by the fact that the accused persons are black.

[36] Second, although the trial judge did not use the words “balance of probabilities” in explaining the standard of proof, he did instruct the triers that they should decide the question before them “by determining which of the answers [i.e. acceptable or not acceptable] you believe is more likely to be true”. In my view, the trial judge's instruction, given in readily understandable lay terminology, captured the essence of the legal term, “on a balance of probabilities”.

[37] Third, while it clearly would have been preferable for the trial judge to have explicitly instructed each set of triers that they were required to make a unanimous decision, that they could retire to the jury room if they wished, and that they had a right to disagree, I see no reasonable basis for concluding that the absence of these explicit instructions created any material misapprehension on the part of any of the triers concerning the requirement for unanimity or their right to disagree.

[38] In giving initial instructions to each new set of triers, the trial judge concluded with the words, “[p]lease discuss it between you and give us your answer”. When instructing the same set of triers on subsequent occasion(s), the trial judge said, “[a]gain please discuss it”. In my view, it would have been obvious to the triers based on these instructions that their decision must be unanimous and that if they were unable to agree they must say so: see R. v. Patterson, supra, at 201.

[39] Moreover, in assessing the adequacy of instructions concerning the challenge for cause procedure, it is important to bear in mind that the process occurs in open court, in full view of the trial judge, counsel and the accused. Had there been any difficulty in this case among any of the triers in making a decision, it would have been apparent to the observers. Had that occurred, the trial judge could, if necessary, have clarified his instructions or advised the triers that they were free to retire to a jury room. The absence of any indication on the record of any such difficulty, or even that counsel were concerned about the possibility of any such difficulty, is persuasive evidence that no such difficulty occurred.

[40] Fourth, I specifically reject the appellants' contention that the decisions made by some sets of triers that certain prospective jurors were unacceptable demonstrate any lack of understanding of their task. Determining whether or not a particular prospective juror is acceptable on the basis of the answer to a single question involves not only an assessment of the answer given, but also an assessment of the demeanour and reaction of the prospective juror in answering the question.

[41] I do not rule out the possibility that a finding that a particular prospective juror is either acceptable or unacceptable in the face of an answer indicating the contrary could, in some circumstances, suggest a lack of understanding of the challenge for cause procedure. However, the absence of any indication on the record in this case that that was a concern is, once again, persuasive evidence that there is no reasonable basis to conclude that the prospective jurors did not understand their task. It would have been obvious to counsel and the trial judge if the triers were making unreasonable decisions. Had trial counsel harboured such a concern, they could have requested an opportunity to address the triers, asked the trial judge to provide further instructions, or taken other steps.

[42] Based on the foregoing four factors, I conclude that the record does not reveal any reasonable likelihood that any of the triers misunderstood either the nature of their task or the procedure they were to follow on the challenge for cause.

ii) When one of the sworn jurors had to be replaced during the jury selection process, did the trial judge exceed his jurisdiction by ruling that the Crown and both appellants were entitled to an extra peremptory challenge?

iii) When two additional sworn jurors had to be replaced, did the trial judge err by contradicting his earlier ruling and holding that on that occasion the parties would not be entitled to extra peremptory challenges and by failing to declare a mistrial?

[43] I will deal with the second and third grounds of appeal together as they are related.

[44] I conclude that the trial judge erred in law when he directed that the Crown and both appellants were each entitled to an extra peremptory challenge after one of the sworn jurors had to be replaced during the jury selection process. However, I am satisfied that the trial judge's initial ruling occasioned no substantial wrong or miscarriage of justice, that the trial judge's subsequent decision not to grant additional peremptory challenges was correct, and that the trial judge did not err in the exercise of his discretion in refusing to grant a mistrial.

a) awarding additional peremptory challenges was an error in law

[45] Section 634 of the Criminal Code prescribes the maximum number of peremptory challenges to which the prosecutor and the accused are entitled. At the time this jury was selected, there was no provision in the Criminal Code for awarding additional peremptory challenges in any circumstances. Moreover, I am not aware of any binding authority supporting the conclusion that a trial judge has inherent power to grant additional peremptory challenges when a juror is replaced.

[46] Contrary to the view expressed in R. v. Cazzetta (2003), 173 C.C.C. (3d) 144 (Que. C.A.), I do not consider that the enactment of s. 634(2.1) of the Criminal Code, which provides for additional peremptory challenges where alternate juror(s) are selected, supports the conclusion that a trial judge has inherent power to grant additional peremptory challenges when a sworn juror is replaced. Because the number of persons to be selected as jurors is effectively increased from twelve to either thirteen or fourteen when alternate jurors are selected, there is an obvious reason for increasing the number of peremptory challenges available to the parties in that situation.

[47] However, the same logic does not apply when a sworn juror is replaced. Since the number of jury members is not being increased, and since neither the Crown nor the accused used a peremptory challenge when the juror being replaced was selected, the effect of leaving the number of available peremptory challenges unchanged when a sworn juror is replaced is simply to restore the Crown and the accused to the position they were in prior to the replaced juror being selected.

[48] Further, in my view, the language of s. 634 supports the conclusion that trial judges do not possess inherent authority to increase the number of peremptory challenges when a sworn juror is replaced[^8]. In particular, s. 634(2) specifies the exceptions to which the prescribed maximum number of challenges is subject. Had Parliament intended trial judges to have discretion to create additional exceptions, it could have said so.

[49] Given my conclusion that a trial judge does not have inherent authority to increase the number of available peremptory challenges when a sworn juror is replaced, the trial judge’s decision not to do so on the second occasion that sworn jurors had to be replaced was correct.

b) the trial judge’s decisions concerning peremptory challenges did not prejudice the appellants

[50] In my view, neither the trial judge's initial decision to grant additional peremptory challenges, nor his subsequent decision not to do so, caused any prejudice to the appellants. On the contrary, both appellants received a benefit from the trial judge's initial incorrect ruling because they used the additional peremptory challenges that were given to them, whereas the Crown did not.

[51] I see no merit in the appellants' contention that they were somehow deprived of the ability to formulate a strategy on the use of their peremptory challenges because the trial judge made different rulings on different occasions concerning whether or not the appellants would be afforded additional peremptory challenges. On the second occasion that sworn jurors had to be replaced, although the trial judge reversed his earlier ruling and directed that the parties would not receive additional peremptory challenges, he did not take away the additional peremptory challenges that he had previously granted.

[52] Moreover, as already noted, since the appellants did not use a peremptory challenge in selecting the replaced jurors, the trial judge's decision not to award additional peremptory challenges on the second occasion jurors were replaced did not prejudice the appellants; it simply restored them to the position they were in before the replaced jurors were selected.

[53] As for the appellants' contention that the trial judge's conflicting rulings made the jury selection process appear arbitrary and unfair, I note that neither appellant took the position either at trial or on appeal that the trial judge's initial ruling was correct. However, all of the parties received an equivalent potential benefit when the trial judge ruled that the parties would receive additional peremptory challenges on the first occasion that a sworn juror had to be replaced. Particularly since only the appellants actually realized that benefit, I fail to see how the trial judge's subsequent correct ruling, or the fact that the trial judge made conflicting rulings, made the process appear unfair.

IV. Disposition

[54] Based on the foregoing reasons, I would dismiss this appeal.

Released: February 21, 2005 “KNF”

“Janet Simmons J.A.”

“I agree M. Rosenberg J.A.”

“I agree K. Feldman J.A.”

[^1]: As is the case with subsequent instructions quoted in these reasons, while there may have been minor variations in wording when the instructions were repeated, the substance of the instructions remained the same.

[^2]: Following the trial judge's ruling, Crown counsel and counsel for Mr. Brown agreed that two peremptory challenges should be given back to the Crown as the appellants were receiving one each. The trial judge did not comment, but it appears from subsequent colloquy that the suggestion was adopted.

[^3]: See R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493 (Ont. C.A.); R. v. Brown (2002), 166 C.C.C. (3d) 570; R. v. Douglas (2002), 170 C.C.C. (3d) 126 (Ont. C.A.); R. v. Patterson (2002), 174 C.C.C. (3d) 193 (Ont. C.A.); R. v. McLean (2002), 170 C.C.C. (3d) 330 (Ont. C.A.); R. v. Li (2004), 184 O.A.C. 117; R. v. Olukoya, [2003] O.J. 312 (C.A.) and R. v. Gunarajah, [2004] O.J. No. 2868 (C.A.); R. v. Spence (2004), 191 O.A.C. 285.

[^4]: Per Goudge J.A. in R. v. Brown, supra, citing R. v. Barrow, [1987] 2 S.C.R. 694 at 710).

[^5]: Per Moldaver J.A. in R. v. Douglas, supra, at para.16.

[^6]: Per Moldaver J.A. in R. v. Douglas, supra., at para. 17. Moldaver J.A. also encouraged the use of the model instructions found at Part I: Preliminary Instructions, ss. 12A-12C, of Justice David Watt, Ontario Specimen Jury Instructions (Criminal), CD-ROM (Toronto: Thomson-Carswell) with the proviso that they be enlarged to advise the triers of their right to retire to the jury room to deliberate if they wish.

[^7]: See, for example, R. v. Patterson and R. v. McLean, supra.

[^8]: Section 634 of the Criminal Code (as amended on July 23, 2002 by the addition of s. 634(2.1)) provides as follows:

Peremptory challenges

634. (1) A juror may be challenged peremptorily whether or not the juror has been challenged for cause pursuant to section 638.

Maximum number

(2) Subject to subsections (2.1) to (4), the prosecutor and the accused are each entitled to

(a)

twenty peremptory challenges, where the accused is charged with high treason or first degree murder;

(b)

twelve peremptory challenges, where the accused is charged with an offence, other than an offence mentioned in paragraph (a), for which the accused may be sentenced to imprisonment for a term exceeding five years; or

(c)

four peremptory challenges, where the accused is charged with an offence that is not referred to in paragraph (a) or (b).

If alternate jurors

(2.1) If the judge makes an order for alternate jurors, the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one for each alternate juror.

Where there are multiple counts

(3) Where two or more counts in an indictment are to be tried together, the prosecutor and the accused are each entitled only to the number of peremptory challenges provided in respect of the count for which the greatest number of peremptory challenges is available.

Where there are joint trials

(4) Where two or more accused are to be tried together,

(a)

each accused is entitled to the number of peremptory challenges to which the accused would be entitled if tried alone; and

(b)

the prosecutor is entitled to the total number of peremptory challenges available to all the accused.