I've had cases where I've selected a jury and advised the judge at the outset that I didn't intend to use any of my peremptory challenges, that I wanted the first 12 people who were ready to serve. I've done that. I've also had cases where I've exhausted my peremptory challenges. The way it works is that the challenges rotate between the defence and the Crown. Each one is permitted to say "Challenge" or "Content" with respect to each juror, but that's only after they've passed the challenge for cause.
That's also something interesting. I wanted to explain how that works, how the challenge for cause precedes the peremptory challenge. Sometimes you get an answer on your challenge for cause. We're talking about what information you have. Professor MacDonnell says, and I respect that view, that you're going to be looking at their faces or using some discriminatory assumption. I can tell you that I had a challenge for cause where the question about publicity was asked. The question was, “Notwithstanding anything you've read about this case, could you be impartial between Her Majesty and the accused?” That's the standard question. The juror thought for a really long time about that and said, “I hope so”, and the juror was ruled acceptable. I'm sitting there and I just heard a juror say, “I hope so” to the question “Could you be impartial?”
We have to remember that juries are unlike judges, who are legally presumed to be impartial. Obviously, judges are appointed and have legal training, so we make all these assumptions about them. We don't get to ask challenges for cause to a judge. In California they do, and they get to exercise one peremptory challenge per judge. Any lawyers looking for a judge shopping jurisdiction should hightail it to California.
With juries, we don't quite have those presumptions. Where we have a concern about challenge for cause, we ask it. The peremptory challenge is also a useful tool when you get a slightly less than satisfactory or a lukewarm answer on your challenge for cause. That's how the process works.