COURT FILE NO.: CRIMJ(P) 359/17 DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN Respondent – and – Gary Hoffman Applicant
Daniel Guttman, Adam Bernstein and Theo Sarantis, for the Crown, Respondent Michael A. Moon and Nadia Klein, for the Applicant
HEARD: March 13, 2019
RULING ON CHALLENGE TO S. 4(B) OF THE JURIES ACT RELYING ON THE DOCTRINE OF FEDERAL PARAMOUNTCY
RESTRICTION ON PUBLICATION Pursuant to s. 648(1) of the Criminal Code, no information regarding this portion of the trial shall be published in any document or broadcast or transmitted in any way before the jury retires to consider its verdict.
J.M. Woollcombe J.
Introduction
[1] The applicant, Gary Hoffman, is charged with manslaughter in relation to the death of Madad Kenyi. His trial is scheduled to proceed before me, with a jury, beginning on May 13, 2019.
[2] The applicant brings a pre-trial motion in which he submits that the provincial legislation relating to jury qualification that is contained in the Juries Act, R.S.O. 1990, c. J.3 is invalid. The applicant says that this legislation impinges on the exclusive jurisdiction of Parliament in setting out who is eligible to serve as a juror and violates the division of powers set out in the Constitution Act, 1867. The applicant also says that there is a conflict between the provincial legislation and the federal legislation in the Criminal Code and that to the extent that the provincial legislation makes ineligible for jury service a much wider group than those that may be challenged for cause under the Criminal Code, s. 4(b) of the Juries Act should be deemed inoperable.
[3] More specifically, the Applicant brings an application for a declaration that:
a. s. 4(b) of the Juries Act is ultra vires the province of Ontario to the extent that it purports to expand the criteria for ineligibility to sit on a criminal jury beyond that established by the federal government in s. 638(1)(c) of the Criminal Code, and infringes on the powers of the federal government as found in s. 91(27) of the Constitution Act 1867;
b. to the extent that s. 4(b) of the Juries Act is inconsistent with s. 638(1)(c) of the Criminal Code it is of no force and effects:
[4] The applicant also seeks an order under s. 14(1) of the Juries Act requiring the sheriff to generate a constitutionally valid additional or replacement array of potential jurors under s. 14(2) of the Juries Act for his trial.
[5] The application proceeded before me on March 13, 2019 with both the applicant and the Crown filing facta and making oral submissions. Although properly served with a Notice of Constitutional Question, the Attorney General of Canada has not intervened in this matter.
The Relevant Legislation
[6] The Constitution Act, 1867 sets out, in ss. 91 and 92, the division of powers between the federal and provincial governments. The following subsections are relevant:
It shall be lawful for the Queen, by and with the Advice and Consent of the Senate and House of Commons, to make Laws for the Peace, Order, and good Government of Canada, in relation to all Matters not coming within the Classes of Subjects by this Act assigned exclusively to the Legislatures of the Provinces; and for greater Certainty, but not so as to restrict the Generality of the foregoing Terms of this Section, it is hereby declared that (notwithstanding anything in this Act) the exclusive Legislative Authority of the Parliament of Canada extends to all Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
The Criminal Law, except the Constitution of Courts of Criminal Jurisdiction, but including the Procedure in Criminal Matters.
In each Province the Legislature may exclusively make Laws in relation to Matters coming within the Classes of Subjects next hereinafter enumerated; that is to say,
Property and Civil Rights in the Province.
The Administration of Justice in the Province, including the Constitution, Maintenance, and Organization of Provincial Courts, both of Civil and of Criminal Jurisdiction, and including Procedure in Civil Matters in those Courts.
[7] In Ontario, the Juries Act, is the provincial legislation that sets out who is eligible and ineligible to serve as a juror in Ontario. Section 2 provides for who is eligible:
2 Subject to sections 3 and 4, every person who,
(a) resides in Ontario;
(b) is a Canadian citizen; and
(c) in the year preceding the year for which the jury is selected had attained the age of eighteen years or more, is eligible and liable to serve as a juror on juries in the Superior Court of Justice in the county in which he or she resides.
[8] Both s. 3 and 4 provide for ineligibility. Of importance here is s. 4(b) which states:
4 A person is ineligible to serve as a juror who,
(b) has been convicted of an offence that may be prosecuted by indictment, unless the person has subsequently been granted a pardon.
[9] The Juries Act also sets out the manner in which jury rolls are prepared and how the names from the jury roll are selected to make up jury panels or arrays.
[10] In terms of preparation and certification of the rolls, s. 5 of the Juries Act requires that the sheriff for a county determines the aggregate number of people required for jury service in the following year and communicate this to the Director of Assessment. The Director of Assessment is the employee of the Municipal Property Assessment Corporation (“MPAC”) who is appointed by the Corporation to be the Director of Assessment under this Act.
[11] The Director of Assessment randomly selects from the jury source list names of people who are over 18 and are Canadian citizens. They are mailed a questionnaire. Section 6(2) of the Juries Act sets out how the Director of Assessment determines to whom questionnaires are sent.
[12] The questionnaire includes the question, “Have you been convicted of any criminal offence that can be prosecuted by way of indictment for which you have not been granted a record suspension or pardon?” The form indicates that, “The staff of the Provincial Jury Centre are authorized to carry out criminal record checks through the Canadian Police Information Centre (CPIC) to verify the information you provide.” Those who receive questionnaires are required to return them within 30 days.
[13] The Director of Assessment provides to the sheriff the list of people to whom questionnaires were sent. In accordance with s. 8(1) of the Juries Act, the sheriff then creates the jury roll with the names, addresses and occupations of each person who returned a questionnaire and who is eligible for jury service. In accordance with s. 9, the sheriff certifies the roll and delivers a notice of certification to the Superior Court of Justice.
[14] The Juries Act also sets out how jury panels are selected from the jury rolls. When a jury is required, the Superior Court of Justice issues a precept, in accordance with s. 12 of the Juries Act. Section 15 of the Juries Act requires the sheriff to return in response a list of names contained on the jury roll. This is done through the random selection of names.
[15] The Juries Act authorizes the sheriff to confirm whether s. 4(b) respecting criminal records applies by having a criminal record check conducted. If, after reviewing that check, the sheriff determines that s. 4(b) applies, s.18.2(5) requires that the person’s name be removed from the jury panel and from the jury roll for the year.
[16] The sheriff then summons people on the jury panel to appear at court at a particular time and date.
[17] The Juries Act does not deal with selection from the jury panel of individual jurors to serve on a jury. This process is governed by the Criminal Code.
[18] 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.
(2) Notwithstanding any law of a province referred to in subsection (1), no person may be disqualified, exempted or excused from serving as a juror in criminal proceedings on the grounds of his or her sex.
[19] Section 638 of the Code sets out the grounds upon which challenges for cause are permitted. Of relevance here is s. 638(1)(c), which provides:
638 (1) A prosecutor or an accused is entitled to any number of challenges on the ground that
(c) a juror has been convicted of an offence for which he was sentenced to death or to a term of imprisonment exceeding twelve months;
Positions of the Parties
[20] The Applicant’s position is that s. 4(b) of the Juries Act is inconsistent with Parliament’s regime in the Criminal Code because it purports to more significantly narrow those who are eligible to serve as jurors in Ontario than Parliament has done through the Criminal Code. The provincial legislation excludes from eligibility those convicted of any criminal offence that can be prosecuted by indictment if they have not been pardoned or granted a record suspension. By contrast, the Criminal Code permits challenge for cause of only those who were convicted of an offence and received a sentence exceeding 12 months. The result, says the applicant, is an operational conflict in that the provincial legislation excludes a wider group than those who could be challenged for cause, expands the criteria for ineligibility beyond that created by the Criminal Code, and is irreconcilably inconsistent with federal legislation. The applicant says that s. 4(b) of the Juries Act effectively renders s. 638(1)(c) of the Criminal Code redundant because no one would ever be eligible for jury duty who could be challenged for cause under it. The applicant says that the province has impinged on a federal head of power and that as a result, its offending legislation, in s. 4(b) of the Juries Act, should be declared inoperable. This would enable the Attorney General and Sheriff to produce a supplemental roll which would include those who would have been excluded by virtue of s 4(b).
[21] The Crown’s position is that both the federal and provincial governments are able to legislate with respect to juries. While appreciating that if there is a true conflict, federal legislation governs to the extent that there is a conflict, the Crown’s position is that 4(b) of the Juries Act is valid provincial legislation over the administration of justice and that it neither conflicts with, nor frustrates, the purpose of s. 638(1)(c) of the Criminal Code.
Analysis
a) Legal Principles Respecting Division of Power
[22] I will briefly summarize the legal principles respecting federal paramountcy. I understand that the parties are largely in agreement as to the applicable legal principles. Their dispute is in respect of the application of those legal principles.
[23] The starting point for the analysis of the doctrine of federal paramountcy is that legislation is presumed to be constitutional. The doctrine provides that when there is an inconsistency between validly enacted federal and provincial legislation, the provincial legislation is inoperative to the extent of that inconsistency. It is for the party seeking to rely on the doctrine of federal paramountcy to demonstrate that the federal and provincial legislation is incompatible. Doing so requires establishing either operational conflict or that the operation of the provincial law frustrates the purpose of the federal law: Canadian Western Bank v. Alberta, 2007 SCC 22, [2007] 2 S.C.R. 3 at para. 75, Rothmans, Benson & Hedges v. Saskatchewan, 2005 SCC 13, [2005] 1 S.C.R. 188 at paras. 21-25.
[24] Operational conflict relates to an impossibility of compliance with both the federal and provincial laws. The notion of impossibility of compliance with both legislative regimes requires “an actual conflict in operation as where one enactment says “yes” and the other says “no”; the same citizens are being told to do inconsistent things; compliance with one is in deviance with the other”: Multiple Access Ltd. v. McCutcheon, [1982] 2 S.C.R. 161 at p. 191; Alberta (Attorney General) v. Moloney, 2015 SCC 51, [2015] 3 S.C.R. 327 at para. 19; Canadian Western Bank at para. 71.
[25] The Supreme Court of Canada has recognized that incompatibility triggering the application of the doctrine of paramountcy does not exist just because there is duplication in legislation. Indeed, “a provincial law may in principle add requirements that supplement the requirement of federal legislation” in which cases citizens can comply with either without violating the other: Canadian Western Bank at para. 72; 114957 Canada Ltée (Spraytech, Société D’Arrosage) v. Hudson (Town), [2001] S.C.R. 241 at para. 34.
[26] Assessing whether provincial legislation frustrates the purpose of federal legislation requires consideration of, first, the federal purpose and, second, whether the provincial law frustrates that purpose. The standard for invalidating provincial legislation on this basis is high because courts are hesitant to impute to Parliament an intention to “occupy the field” absent clear statutory language: Canadian Western Bank at para. 73; Rothmans at para. 21.
b) The Manner of Jury Selection in Canada
[27] In Canada, the Supreme Court of Canada has long recognized that different stages of the jury selection process are regulated by different levels of government. Indeed, that there are both federal and provincial aspects to jury selection was confirmed by L’Heureux-Dubé J. in R. v. Sherratt, [1991] 1 S.C.R. 509. She explained that “out-of-court” selection of those who are able to serve on juries is typically governed by provincial legislation whereas the “in-court” selection is governed by Parliament through the Criminal Code. Further, as she observed, “jurisdictional conflict in this area is avoided through s. 554(1) (now s. 626) of the Criminal Code which provides that the jury panel will be selected from lists drawn up according to the relevant provincial legislation.” See also R. v. Yumnu, 2012 SCC 73, [2012] 3 S.C.R. 777 at para. 46.
[28] More recently, in R. v. Kokopenace, 2015 SCC 28, Moldaver J. described these stages at paras. 8-9 as follows:
8 To be eligible to serve as a juror in Ontario, individuals must be at least 18 years of age and must be Canadian citizens who reside in Ontario. There are several additional limitations on eligibility, including exemptions related to an individual's profession or prior criminal record: Juries Act, R.S.O. 1990, c. J.3, ss. 2 to 4. Drawing from the pool of eligible individuals, jury selection takes place in three stages:
The preparation of the jury roll, composed of individuals who are randomly selected from the community in each judicial district throughout Ontario.
The selection of names from the jury roll to make up the jury panels (also known as arrays) for court sittings. Jury panels act as the pools from which trial juries are selected.
The selection, from the jury panel, of the trial jury (also known as the petit jury) that will serve on a particular criminal trial.
9 In Ontario, the first two stages are governed by the Juries Act and the third stage is governed by the Criminal Code, R.S.C. 1985, c. C-46. The respondent's challenge is to the first stage of the process — the preparation of the jury roll.
c) Is there an operational conflict between the Criminal Code and s. 4(b) of the Juries Act?
[29] Despite the comments from the Supreme Court of Canada about the manner in which jury selection in Canada is divided between the federal and provincial governments, the applicant says that there is a conflict between the two regimes respecting who is eligible to be on a jury.
[30] In my view, the applicant has failed to demonstrate any operational conflict between the federal and provincial legislation. There is no impossibility of complying with both s. 4(1) of the Juries Act and s. 638(1)(c) of the Criminal Code. Further, the applicant has not met his burden of demonstrating that the provincial legislation frustrates the purpose of the federal legislation.
[31] Both parties have made submissions respecting the significance of s. 626 of the Criminal Code.
[32] The applicant says that this section shows that the federal government has delegated some authority for jury selection to the province. However, he asserts that s. 626(2) of the Code makes clear that the province does not have unfettered rights to determine the question of who is qualified to serve on a jury as it imposes certain restrictions on the province. Further, the applicant says that the province cannot narrow eligibility for jury service beyond that which is set out in s. 638(1)(c) of the Code.
[33] In response, the Crown says that s. 626 of the Code recognizes the division of powers between the federal and provincial governments that is set out in the Constitution Act. It does not delegate authority to the province, it merely acknowledges that provinces have the authority to regulate juror qualification and summoning of jurors, and specifically incorporates provincial laws into the process. The Crown acknowledges that the s. 626(2) places a limitation on the province’s ability to legislate in that it is precluded from disqualifying anyone from being a potential juror on the basis of gender.
[34] Interestingly, provinces across the country appear to have taken different approaches in their legislation governing jury qualification. These were summarized by Moldaver J. in Yumnu at paras. 46:
[46] Section 626(1) of the Criminal Code, R.S.C. 1985, c. C-46, provides that “[a] person who is qualified as a juror according to . . . the laws of a province is qualified to serve as a juror in criminal proceedings in that province.” Each province and territory in Canada has its own eligibility criteria for jurors. In Ontario, the province from which the present appeals originate, s. 4(b) of the Juries Act currently states that anyone who “has been convicted of an offence that may be prosecuted by indictment” and who has not been granted a pardon for that conviction, is ineligible to serve as a juror. I note that until 2010, s. 4(b) of the Juries Act provided that a person was ineligible to serve as a juror in Ontario if he or she “ha[d] been convicted of an indictable offence” and had not been granted a pardon. In the case of a hybrid offence, this was interpreted to mean a conviction where the prosecutor chose to proceed by indictment (see IPC Report, at pp. 33-34). In 2010, the Juries Act was amended to broaden the scope of juror ineligibility (S.O. 2009, c. 33, Sch. 2, s. 38(1)). This amendment addressed the problem that criminal record databases do not record whether, in respect of hybrid offences, the Crown proceeded by way of summary conviction or by indictment. Other provinces have different eligibility requirements, including some that preclude persons “charged” with a criminal offence from serving on a jury. For instance, individuals are ineligible to serve as jurors: in Alberta, if “charged with a criminal offence” (Jury Act, R.S.A. 2000, c. J-3, s. 4(h)(ii)); in British Columbia, if “currently charged with an offence under the Criminal Code” (Jury Act, R.S.B.C. 1996, c. 242, s. 3(1)(q)); in Newfoundland and Labrador, if charged with an indictable offence (Jury Act, 1991, S.N.L. 1991, c. 16, s. 5(m)); and in Quebec, if charged or convicted of a “criminal act” (an indictable offence) (Jurors Act, R.S.Q., c. J-2, s. 4(j)) (for the relevant legislation in the other provinces and territories, see: The Jury Act, 1998, S.S. 1998, c. J-4.2, s. 6(h); The Jury Act, C.C.S.M. c. J30, s. 3(p) and (r); Jury Act, S.N.B. 1980, c. J-3.1, s. 3(r); Juries Act, S.N.S. 1998, c. 16, s. 4(e); Jury Act, R.S.P.E.I. 1988, c. J-5.1, s. 5(i); Jury Act, R.S.Y. 2002, c. 129, s. 5(a) and (b); Jury Act, R.S.N.W.T. 1988, c. J-2, s. 5(a); and Jury Act, R.S.N.W.T. (Nu.) 1988, c. J-2, s. 5(a)).
[35] As this suggests, in some of the provincial regimes, the pool of potential jurors excludes anyone who had been sentenced to a period of jail more than twelve months because all those convicted of a criminal offence are excluded. But that is not necessarily the case. In other regimes, it is possible for those who have been sentenced to longer than a year in jail to be in the potential jury pool. The importance of this is that provinces may, or may not, choose to enact legislation disqualifying from jury service those who have been charged with or convicted of criminal offences. They have done so differently across the country.
[36] That said, as the applicant points out, while the Supreme Court of Canada has repeatedly set out the different roles of the provincial and federal governments in jury selection, none of these cases appears to have grappled with the issue he raises, which is whether provincial governments have the ability to narrow the pool of eligible jurors in such a way as to remove all those individuals who might have been eligible to be challenged for cause under s. 638(1)(c).
[37] In my view, there are several reasons why s. 4(b) of the Juries Act does not conflict with the Criminal Code.
[38] First, I am mindful of the need to be cautious about invalidating a provincial law when the federal government does not contest its validity: OPSEU v. Ontario (Attorney General), [1987] 2 S.C.R. 2 at pp. 19-20; Kitkakpa Band v. British Columbia, 2002 SCC 31, [2002] 2 S.C.R. 146 at para. 72. In this case, the Attorney General for Canada was properly served with a Notice of Constitutional Question and has declined to intervene.
[39] Second, I see no conflict between s. 4(b) of the Juries Act and the Criminal Code. The provincial and federal legislation govern different aspects of jury selection. I agree with the conclusion of Sullivan J. in R. v. McCarthy, [2010] A.J. No. 1646 (Q.B.) at paras. 31-32. This appears to be the only other case in which a court has been asked to consider whether provincial legislation governing jury selection infringed the federal power because it conflicted with s. 638(1)(c) of the Code by imposing more stringent conditions on those who were excluded from jury duty than the Criminal Code. In dismissing the application, Sullivan J., noted that “there is nothing in the Criminal Code that suggests that provincial exclusions cannot be more stringent than those in the Code”. I would add that there is, as discussed already, considerable authority that suggests that provincial legislation is permitted to supplement federal legislation as long as it is possible to comply with the stricter of the two: Rothmans at paras 22-23.
[40] This leads me to the third point. I find that there is no conflict because there is no impossibility of compliance with both regimes. The jurisprudence makes clear that for impossibility of dual compliance to exist, the provincial legislation must do that which the federal legislation prohibits. For instance, were the province to enact legislation providing that men were disqualified from being on jury rolls or panels, that legislation would be in clear operational conflict with s. 626(2) of the Criminal Code. Similarly, if the Criminal Code placed a positive obligation on the sheriff to place all those convicted of criminal offences on the jury rolls, and the Juries Act required that all such people be excluded from the jury role, the provincial legislation would do what the federal legislation prohibits and would, therefore, give rise to an issue of impossibility with dual compliance and thus an operational conflict. In my view, s. 4(b) of the Juries Act does not do this.
[41] Fourth, and finally, I am not persuaded by the applicant that s. 4(b) of the Juries Act frustrates the purpose of the federal legislation.
[42] The applicant suggests that through s. 638 of the Criminal Code, Parliament has defined those who are not qualified to sit on a criminal jury as those who have been sentenced, following a criminal conviction, to serve a term exceeding twelve months. This means, says the applicant, that Parliament intended for anyone who served less than a term of twelve months to be qualified to serve on a criminal jury and that by limiting those who are eligible to include these individuals, the province has frustrated the federal purpose.
[43] I do not accept the applicant’s position. First, the Constitution Act gives the provinces the ability to legislate in respect of the administration of justice. Section 626(1) of the Criminal Code makes clear that Parliament recognizes that the provinces can legislate in the area of jury qualification, subject to s. 626(3). There is no evidence before me to support the applicant’s assertion that Parliament intended, through the challenge for cause provision in s. 638(1)(c), to provide that those who are sentenced to less than twelve months are eligible to serve on a jury.
[44] Nor, in my view, is there any evidence that in enacting s. 638(1)(c), Parliament intended to set out the only criteria related to criminal convictions that could limit jury eligibility. I see an absence of federal intent to “occupy the field” and enact the only legislation with criteria for jury eligibility related to criminal antecedents.
[45] In order to establish that the federal purpose in enacting s. 638(1)(c) was to “occupy the field”, there must be clear statutory language to that effect. Indeed, as Binnie and LeBel JJ. stated at para. 74 of Canadian Western Bank:
The fact that Parliament has legislated in respect of a manner does not lead to the presumption that in so doing it intended to rule out any possible provincial action in respect of the same subject. As this Court recently stated, “to impute to Parliament such an intention to “occupy the field” in the absence of very clear statutory language to that effect would be to stray from the path pf judicial restraint in questions of paramountcy that this Court has taken since O’Grady” (Rothmans, at para. 21)
[46] Moreover, all s. 638(1)(c) does is make available a challenge for cause process. It does not govern, or purport to govern, eligibility at all. This suggests to me that the federal government’s purpose was to allow for the possibility that if provinces permitted those who had been sentenced to a term of longer than twelve months to be eligible for jury duty in accordance with properly enacted provincial legislation, there remained an avenue for either the Crown or the defence, if they chose to, to challenge such an individual for cause under s. 638(1). In other words, both provincial legislation and Parliament, through the Criminal Code, may influence who ends up selected for a jury – the province through jury eligibility criteria and Parliament through the challenge for cause process in the Code.
[47] At para. 48 of Yumnu, Moldaver J. appears to have accepted this very notion that that an individual’s criminal antecedents could, depending on the provincial legislation, make a person ineligible for jury duty. Or, in the alternative, he observed that the same individual could be removed from the jury pool following a successful challenge for cause.
[48] The Supreme Court of Canada has recognized that provincial legislation does not frustrate the purpose of federal legislation when provincial legislation has the same overall purpose. Here, the purpose of both s. 4(b) the Juries Act, and s. 638(1)(c) of the Code, is to ensure that concerns about those with criminal antecedents serving on juries are addressed. This may be done by circumscribing eligibility to serve on a jury, as the provincial legislation accomplishes, or by permitting challenges for cause, as the federal legislation accomplishes: Rothmans, at paras. 25-26.
[49] Finally, I reject the applicant’s proposition that because the provincial legislation excludes from jury duty anyone with a criminal conviction for an offence that may be prosecuted by indictment, the legislation frustrates the purpose of the Criminal Code because once those convicted of criminal offences prosecuted by indictment are excluded, there would be no one left in any jury panel who could fit the criteria to be able to be challenged for cause under s. 638(1)(c).
[50] While I appreciate that a system that perfectly screens out all those who are ineligible for jury duty on the basis of having a criminal conviction for an offence that could have been prosecuted by indictment would mean that there would be no one who had been sentenced to more than twelve months in the panel, I am not satisfied that in all cases, the screening system will be perfect.
[51] It seems to me that there might well be situations in which those with criminal records for offences that can be prosecuted by indictment would be on a jury panel, despite being ineligible under the provincial legislation. For instance, it is possible for people to be convicted of criminal offences after their names are already on the jury rolls. Furthermore, as Moldaver J. observed at para. 56 of Yumnu, “checking for a prospective juror’s criminal record is not as easy as one might think”. While in Ontario, the sheriff may request, under s. 18.2 of the Juries Act, a criminal record check under the CPIC database, the evidence before the Supreme Court of Canada in that case was that searches were conducted by authorities on a random basis and only covered about 10 percent of the names on the panel lists. Suffice it to say that I am far from satisfied that in all cases, the names on jury rolls will always exclude anyone convicted of a criminal offence that could have been prosecuted by indictment. Where such individuals are on the rolls, they may be challenged for cause.
[52] Finally, it seems to me that even if the provincial screening system perfectly screened, in Ontario, all of those with criminal convictions for offences that could be prosecuted by indictment, thereby leaving no individuals who could have served more than twelve months in jail who could be challenged for cause, this still does not mean that the provincial legislation frustrates the purpose of the federal legislation. I say that because the applicant has not satisfied me either that the federal purpose was to make eligible for jury duty those who were convicted of criminal offences and sentenced to less than twelve months, or to “occupy the field” in terms of jury eligibility at all.
Conclusion
[53] Based on the above analysis, it is my view, s. 4(b) of the Juries Act is valid provincial legislation that governs eligibility to serve on juries on Ontario. There is no conflict between s. 4(b) of the Juries Act and s. 638(1)(c) of the Criminal Code that would render inoperative the provincial legislation pursuant to the doctrine of federal legislative paramountcy. That is because there is neither an impossibility of dual compliance, nor a frustration of purpose of the federal legislation.
[54] In the result, this application is dismissed.
Woollcombe J.
Released: April 25, 2019
COURT FILE NO.: CRIMJ(P) 359/17 DATE: 20190425 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – GARY HOFFMAN REASONS FOR JUDGMENT WOOLLCOMBE J.
Released: April 25, 2019