The Right to a Jury Trial in a Criminal Case, in The United States & in Canada

In Duncan v. State of Louisiana, the United States discussed at length the Right to a Jury Trial in criminal cases. The Supreme Court said:

The Fourteenth Amendment denies the States the power to ‘deprive any person of life, liberty, or property, without due process of law.’ In resolving conflicting claims concerning the meaning of this spacious language, the Court has looked increasingly to the Bill of Rights for guidance; many of the rights guaranteed by the first eight Amendments to the Constitution have been held to be protected against state action by the Due Process Clause of the Fourteenth Amendment. That clause now protects the right to compensation for property taken by the State the rights of speech, press, and religion covered by the First Amendment; the Fourth Amendment rights to be free from unreasonable searches and seizures and to have excluded from criminal trials any evidence illegally seized; the right guaranteed by the Fifth Amendment to be free of compelled self-incrimination; and the Sixth Amendment rights to counsel, to a speedy and public trial, to confrontation of opposing witnesses, and to compulsory process for obtaining witnesses.

 The test for determining whether a right extended by the Fifth and Sixth Amendments with respect to federal criminal proceedings is also protected against state action by the Fourteenth Amendment has been phrased in a variety of ways in the opinions of this Court. The question has been asked whether a right is among those “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,”; whether it is ‘basic in our system of jurisprudence,’; and whether it is ‘a fundamental right, essential to a fair trial,’ (internal citations omitted). The claim before us is that the right to trial by jury guaranteed by the Sixth Amendment meets these tests. The position of Louisiana, on the other hand, is that the Constitution imposes upon the States no duty to give a jury trial in any criminal case, regardless of the seriousness of the crime or the size of the punishment which may be imposed. Because we believe that trial by jury in criminal cases is fundamental to the American scheme of justice, we hold that the Fourteenth Amendment guarantees a right of jury trial in all criminal cases which—were they to be tried in a federal court—would come within the Sixth Amendment’s guarantee. Since we consider the appeal before us to be such a case, we hold that the Constitution was violated when appellant’s demand for jury trial was refused.

The history of trial by jury in criminal cases has been frequently told. It is sufficient for present purposes to say that by the time our Constitution was written, jury trial in criminal cases had been in existence in England for several centuries and carried impressive credentials traced by many to Magna Carta. Its preservation and proper operation as a protection against arbitrary rule were among the major objectives of the revolutionary settlement which was expressed in the Declaration and Bill of Rights of 1689. In the 18th century Blackstone could write:

‘Our law has therefore wisely placed this strong and two-fold barrier, of a presentment and a trial by jury, between the liberties of the people and the prerogative of the crown. It was necessary, for preserving the admirable balance of our constitution, to vest the executive power of the laws in the prince: and yet this power might be dangerous and destructive to that very constitution, if exerted without check or control, by justices of oyer and terminer occasionally named by the crown; who might then, as in France or Turkey, imprison, dispatch, or exile any man that was obnoxious to the government, by an instant declaration that such is their will and pleasure. But the founders of the English law have, with excellent forecast, contrived that * * * the truth of every accusation, whether preferred in the shape of indictment, information, or appeal, should afterwards be confirmed by the unanimous   suffrage of twelve of his equals and neighbours, indifferently chosen and superior to all suspicion.’

Jury trial came to America with English colonists, and received strong support from them. Royal interference with the jury trial was deeply resented. Among the resolutions adopted by the First Congress of the American Colonies (the Stamp Act Congress) on October 19, 1765—resolutions deemed by their authors to state ‘the most essential rights and liberties of the colonists’—was the declaration:

‘That trial by jury is the inherent and invaluable right of every British subject in these colonies.’

The First Continental Congress, in the resolve of October 14, 1774, objected to trials before judges dependent upon the Crown alone for their salaries and to trials in England for alleged crimes committed in the colonies; the Congress therefore declared:

‘That the respective colonies are entitled to the common law of England, and more especially to the great and inestimable privilege of being tried by their peers of the vicinage, according to the course of that law.’

The Declaration of Independence stated solemn objections to the King’s making ‘judges dependent on his will alone, for the tenure of their offices, and the amount and payment of their salaries,’ to his ‘depriving us in many cases, of the benefits of Trial by Jury,’ and to his ‘transporting us beyond Seas to be tried for pretended offenses.’ The Constitution itself, in Art. III, s 2, commanded:

‘The Trial of all Crimes, except in Cases of Impeachment, shall be by Jury; and such Trial shall be held in the State where the said Crimes shall have been committed.’ 


In a Canadian case, R. v. Peers, [2015] A.J. No. 1413 (C.A.):

[T]he accused was charged with an offence, contrary to section 194 of the Securities Act, R.S.A. 2000. The maximum penalty for a conviction under this provision was a period of imprisonment of five years less a day, a fine of up to $5 million, or both.

Section 11(f) of the Charter states as follows:

Any person charged with an offence has the right

(f) 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. 

The accused argued that the potential punishment of five years less a day imprisonment, plus a $5 million fine, amounted to a “more severe punishment” which generated the right to a jury trial.

The Alberta Court of Appeal held that the phrase “imprisonment for five years or a more severe punishment” found in section 11(f) of the Charter, primarily engaged the deprivation of liberty inherent in the maximum sentence of imprisonment imposed by the statute. A maximum penalty of “five years less a day” did not become a more severe penalty just because some collateral negative consequences were added to it.

On appeal to the Supreme Court of Canada, the Court (2017 SCC 13) in a brief oral judgment stated:

The appeal is dismissed. We conclude that the appellant was not entitled to a trial by jury, substantially for the reasons of the majority of the Court of Appeal, 2015 ABCA 407, 609 A.R. 352.

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