The Jury Panel

• Author: David M. Tanovich; David Paciocco; Steven Skurka
• Pages: 39-76

C H A P

I

i;

R

2

THE

JURY

PANEL

2.1 THE

JURISDICTION

OF

THE

PROVINCIAL

ENACTMENTS

AND THE

CREATION

OF

THE

JURY

PANEL

Each province

and

territory

has

passed legislation dealing with assembling

the

jury panel

from

which

the

jurors

who

will

try a

particular case will

be

selected.

These

statutes

are as

follows:

Alberta

—JuryAct,

R.S.A.

1980,

c. J-2

British Columbia

—JuryAct,

R.S.B.C 1979,

c.

210

Manitoba

—

The

Jury

Act,

R.S.M.

1987,

c. J30

New

Brunswick—

Jury Act, R.S.N.B. 1973,

c. J-3

Newfoundland

—JuryAct,

R.S.N. 1990,

c. J-5

Northwest

Territories

—Jury

Act,

R.S.N.W.T.

1988,

c. J-2

Nova Scotia

—JuriesAct,

R.S.N.S. 1989,

c. 242

Ontario—

Juries Act, R.S.O. 1990, c.J.3

Prince Edward Island

—JuryAct,

R.S.P.E.I. 1988,

c. J-5

Quebec

—

Loi

Sur

Lesjures,

R.S.Q.,

c. J-2

Saskatchewan

—

The

Jury

Act, 1981, S.S.

1980-81,

c.

J-4.1

Yukon

Territory

—

Jury Act, R.S.Y. 1986,

c. 97

39

2

The

Criminal

Code

provides:

626.(1)

A

person

who is

qualified

as a

juror according

to, and

summoned

as

a

juror

in

accordance with,

the

laws

of a

province

is

qualified

to

serve

as a

juror

in

criminal

proceedings

in

that

province.

Both

the

eligibility

and

obligation

of

persons

to

serve

on

juries,

as

well

as

the

process

for

bringing those persons forward

as the

jury panel,

are

there-

fore

determined according

to

provincial legislation, even

in

criminal cases.

This

situation

is

subject

to the

caveat that, while

a

province

can

legislate

for

the

administration

of

justice within

a

province,

it

cannot

infringe

on

mat-

ters

of

criminal procedure, which

are

reserved

to the

federal

government

by

section

91(27)

of the

Constitution

Act, 1867

(U.K.),

30 & 31

Viet.,

c. 3:

R. v.

Barrow,

[1987]

2

S.C.R.

694 at

712.

Thus

provincial jurisdiction

is

confined

to the

selection

and

assembly

of the

panel

from

which

a

criminal jury

will

be

drawn

and to

eligibility criteria

for

prospective

jurors that

are

unconnected

to the

criminal case that

is to be

tried.

By

contrast,

the

selection

of the

individual jurors

from

that panel

who

will

try a

particular criminal case

is

governed

by

federal

legislation:

R. v.

Barrow,

[1987]

2

S.C.R.

694 at

713-14.

As the

Barrow

court

said

at

712-13:

In the

case

of

jury selection,

the

provincial power over

the

administration

of

justice stops

and the

federal power over criminal

procedure

begins when

the

judge's activity

is not

concerned with

the

assembly

of an

array

of

eligible

citizens,

but

with

the

precautions necessary

to

ensure

an

impartial jury.

A

number

of the

provincial statutes provide expressly that they

are

subject

to

provisions

to the

contrary

in the

Criminal

Code

or in any

federal

enact-

ment (Alberta,

s. 13;

Prince Edward Island,

s.

32(2);

Saskatchewan,

s.

38).

These

sections merely record what would

be

understood

to be the law

even

in

their absence.

Thus,

in R. v.

Rowbotham

(1988),

63

C.R. (3d)

113

(Ont. C.A.),

the

trial

judge erred

in

using

the

procedures

in the

Ontario

Juries Act,

R.S.O.

1980,

c. 226 for

supplementing

the

jury panel when that panel

was

exhausted

without

a

complete jury having been selected.

The

Criminal

Code

provides

an

exclusive procedure

for

supplementing

a

panel, which should have been

followed.

The

error

was

considered serious enough

that

the

verdict

at

trial,

arrived

at by an

improperly constituted

jury,

was set

aside.

Federal statutory provisions

and the

constitutional doctrine

of

federal

paramountcy

can

affect

even

the

construction

of the

provisions

of a

pro-

vincial

jury enactment.

In R. v.

Barrow,

[1987]

2

S.C.R. 694,

the

Court

interpreted narrowly

a

section

of the New

Brunswick statute

so

that

it

JURY

SELECTION

IN

CRIMINAL

TRIALS

40

would

not

operate unconstitutionally. Section 4(2), which

has

since been

repealed,

purported

to

enable

the

judge presiding

at a

jury

session

to

exempt

jurors

from

service, even when they

did not

qualify

for

exemption

pursuant

to any of the

specific

jury exemption provisions contained

in the

statute.

The

Court

held that, despite

its

apparent breadth,

the

general

excusing

power could

not be

used

to

exempt jurors

on the

grounds

of

par-

tiality,

since partiality

is an

issue relating

to the

criminal case that

is to be

tried. Federal legislation,

not

provincial legislation,

is to be

used

to

deter-

mine

the

effect

of

partiality

on

juror eligibility.

2.2

ELIGIBILITY

TO

BE

ON

THE

JURY

PANEL

2.2(a)

Disqualifications

and

Exemptions

Provincial enactments describe

the

qualifications

for,

and the

grounds

for

disqualification

from,

jury service within each province.

Though

there

are

substantial similarities

in the

qualifications

for

serving

on a

jury,

the

eligi-

bility criteria

differ

from

province

to

province

and are

described below.

All

jury enactments provide

for the

exemption

of

certain persons

from

jury

duty.

Most

of the

statutes contain procedures whereby eligible jurors

can

apply

for

those exemptions.

The

procedures vary,

as do the

grounds

for

exemption. Generally,

these

statutes

provide

potential

jurors with

the

opportunity

to

apply

to an

administrative

official,

normally

the

sheriff,

for

exemption.

In

Newfoundland application

is

made

to a

provincial court

judge.

If the

official

is

satisfied

that

the

request

for

exemption

falls

within

those exemptions provided

for by the

statute, that person will

not be

required

to

serve.

If the

official

denies

the

request, that person

may

appeal

the

decision. Appeal procedures

differ

as

between

the

enactments.

Some

of the

provincial statutes make little,

if

any,

functional

distinction

between disqualification

and

exemption.

In

these jurisdictions, when

the

juror's

list

is

prepared, persons

who are

exempt

and

therefore

not

required

to

serve

are

simply

omitted

from

the

list

as if

they

were disqualified.

See

New

Brunswick,

s. 8;

Nova Scotia,

s.

7(3); Prince Edward Island,

ss. 8 & 9;

and

Yukon Territory,

s.

8(1).

The

disqualification

of

persons

from

jury service depends primarily

on

"self-reporting"

by

potential jurors.

They

are

provided with

a

form

that

presents them with

the

opportunity

to

indicate their

own

disqualification

or

eligibility

for

exemption.

This

dependence

on

self-reporting

can

result

in the

selection

of

jurors

who are not

qualified

to

serve

as

jurors under

the

relevant provincial

statute.

It is not

uncommon

for

routine

criminal-record

The

Jury

Panel

41