COURT FILE NO.:
DATE: 2019/10/18
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: Jury Panel Member No. 407
BEFORE: Ellies R.S.J.
COUNSEL: None
HEARD: In Chambers
REASONS FOR DECISION
OVERVIEW
[1] On September 19, 2019 the court received a request from a jury panel member (No. 407) who had been summoned to attend for possible jury selection on October 21, 2019. The panel member advised that she had recently become employed as a probation officer with the Ministry of the Solicitor General (the “Ministry”). She requested that the court consider removing her name from the panel as a result of “a potential conflict with a client.”
[2] I do not believe the panel member should be excused because of a potential conflict, as it is unlikely that one will arise. The panel is being summoned with respect to both criminal and civil matters. If the panel member is selected to sit on a civil jury, the chances of her having a conflict with a client are no greater than the chances of any juror having a conflict involving one of the parties. Before the panel member is selected to sit on either a civil or a criminal jury, the panel members will be advised of the names of the parties (or the accused, in the case of a criminal trial), counsel, and potential witnesses. The panel members will be asked to indicate if they know any of those people. In this way, the panel member would be able to avoid sitting on a jury in which she has a conflict with a client.
[3] However, although I would not excuse the panel member because of a potential conflict with a client, I believe she should be excused from serving for another reason. In my view, a probation officer is a “person engaged in the enforcement of law,” within the meaning of s. 3(1), para. 6 of the Juries Act, R.S.O. 1990, c. J.3, and is thereby ineligible to serve on a jury. My conclusion is based on the wording of the statute, the nature of a probation officer’s duties, and the wording of similar statutory provisions in other provinces.
SECTION 3(1) OF THE JURIES ACT
[4] Section 3(1) of the Juries Act provides:
The following persons are ineligible to serve as jurors:
Every member of the Privy Council of Canada or the Executive Council of Ontario.
Every member of the Senate, the House of Commons of Canada or the Assembly.
Every judge and every justice of the peace.
Every barrister and solicitor and every student-at-law.
Every legally qualified medical practitioner and veterinary surgeon who is actively engaged in practice and every coroner.
Every person engaged in the enforcement of law including, without restricting the generality of the foregoing, sheriffs, wardens of any penitentiary, superintendents, jailers or keepers of prisons, correctional institutions or lockups, sheriff’s officers, police officers, firefighters who are regularly employed by a fire department for the purposes of subsection 41 (1) of the Fire Protection and Prevention Act, 1997, and officers of a court of justice.
[5] I begin with the observation that, although a probation officer is not specifically listed in para. 6, the language is clear that this is not an exhaustive list.
[6] I also note that s. 3(1) precludes certain people from serving as jurors based on their occupations. Those occupations appear to fall into two groups. One consists of those people whose services to society are deemed too important to remove them from such service and place them on a jury. This group would include medical practitioners and fire fighters. The other is comprised of those people whose involvement in law enforcement creates the potential for partiality or undue influence if placed on a jury, such as lawyers and students-at-law. Of course, the groups are not mutually exclusive. Many, if not most, of the people involved in law enforcement provide services so essential to the community that they, too, should not be removed from service in order to sit on a jury. This is certainly true, for example, of the police. It may also be true of probation officers.
THE DUTIES OF A PROBATION OFFICER
[7] The Ministry of Correctional Services Act, R.S.O. 1990, c. M.22, does not specifically define “probation officer”, but it does outline the duties of one:
44 (1) It is the duty of a probation officer,
(a) to procure and report to a court such information pertaining to a person found to have committed an offence as the court may require for the purpose of making a disposition of the case;
(b) to make recommendations in the report referred to in clause (a) as to the disposition of the case upon being requested by the court;
(c) to comply with any direction made to the probation officer by a court in a probation order.
[8] As the statute makes clear, a probation officer is required to assist the court at the sentencing phase of a criminal case, both before and after the sentence is imposed.
[9] Douglas J. of the Ontario Court of Justice in R. v. Kindree, [2000] 48 W.C.B. (2d) 93, commented as follows regarding s. 44(1):
The plain language of these provisions establishes the probation officer as one who acts on behalf of the court. This relationship is consistent with the fundamental nature of the sentencing process: it is the court who sentences, and it is the court’s sentence that is being managed.
[10] Probation officers are employed and overseen by the Correctional Services branch of the Ministry. With respect specifically to the role of probation officers after a sentence is imposed, the Ministry’s Internet website (online: < www.mcscs.jus.gov.on.ca>) explains that:
Probation and parole officers play an important role in helping to ensure public safety by managing offenders sentenced to serve their sentences in the community.
[11] Under the heading “Community Corrections,” the Ministry’s website further outlines the supervisory role of probation officers, which includes enforcement duties. It notes that:
The supervisory role of a probation officer is to:
i. prepare reports for courts and other correctional decision makers
ii. enforce the probation order
iii. comprehensively assess offenders, make effective case management decisions and determine rehabilitative interventions (e.g., referral to internal or community-based educational, counselling, or treatment programs or services).
[12] Thus, probation officers have similar law enforcement duties to those imposed upon correctional officers, but the former monitor offenders in the community, while the latter monitor offenders who have been removed from the community and placed in custody.
[13] Probation officers are granted law enforcement duties under other statutes, as well. The Child, Youth and Family Services Act, 2017, S.O. 2017, c. 14, Sched. 1, considers bailiffs and probation officers to be on par with peace officers. Section 146(3) provides:
146(3) While performing their duties and functions, a probation officer appointed under clause (1) (b) and a bailiff appointed under clause (1) (c) have the powers of a peace officer.
[14] The Criminal Code, R.S.C. 1985, c. C-46, includes a probation officer as a person who may make a demand for a bodily sample as a condition in recognizance. Section 810.2(4.1)(f)-(g) reads:
(4.1) The provincial court judge may add any reasonable conditions to the recognizance that the judge considers desirable to secure the good conduct of the defendant, including conditions that require the defendant
(f) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation on the demand of a peace officer, a probation officer or someone designated under paragraph 810.3(2)(a) to make a demand, at the place and time and on the day specified by the person making the demand, if that person has reasonable grounds to believe that the defendant has breached a condition of the recognizance that requires them to abstain from the consumption of drugs, alcohol or any other intoxicating substance; or
(g) to provide, for the purpose of analysis, a sample of a bodily substance prescribed by regulation at regular intervals that are specified, in a notice in Form 51 served on the defendant, by a probation officer or a person designated under paragraph 810.3(2)(b) to specify them, if a condition of the recognizance requires the defendant to abstain from the consumption of drugs, alcohol or any other intoxicating substance.
[15] In summary, the statute creating the position of probation officer, the Ministry’s interpretation of that statute, and provisions contained in other statutes make it clear that the duties of a probation officer include law enforcement.
SIMILAR LEGISLATION IN OTHER PROVINCES
[16] The fact that statutes equivalent to the Juries Act in Manitoba, Alberta, Prince Edward Island, Nova Scotia, and Yukon explicitly disqualify probation officers from jury service reinforces my view that they are likewise ineligible under s. 3(1) of the Ontario legislation by virtue of their duties in law enforcement.
[17] Those extra-provincial provisions read, respectively (emphasis added):
Manitoba
Every person is disqualified from serving as a juror who is … a warden, correctional officer or person employed in a penitentiary, prison or correctional institution or a probation officer (s. 3(m), The Jury Act, C.C.S.M. c. J30);
Alberta
The following persons are excluded from serving as jurors:
(k) persons engaged in the administration of justice, including
(i) members and employees of any police service,
(ii) probation officers (s. 4, Jury Act, R.S.A. 2000, c. J-3);
Prince Edward Island
The following persons are disqualified from serving as jurors:
(e) persons engaged in the administration of justice, including,
(i) members and employees of any police force,
(ii) probation officers (s. 5, Jury Act, R.S.P.E.I. 1988, c. J-5.1);
Nova Scotia
The following people are disqualified from serving as a juror … every person engaged in the administration of justice, including a sheriff, a warden of a penitentiary, a superintendent or officer of a correctional institution or lockup, a probation officer, a police officer, a court official, an employee of the Department of Justice or of the Solicitor General of Canada, and an employee of the Department of Justice or the Public Prosecution Service of the Province (s. 4(d), Juries Act, S.N.S. 1998, c. 16);
Yukon
The following persons are disqualified from service as jurors … employees in the Yukon public service classified as probation officers or social workers (s. 5(k), Jury Act, R.S.Y. 2002, c. 129).
[18] The language of these statutes demonstrates that other provinces consider a probation officer to be a person engaged in the administration of justice, of which the enforcement of law is at least a subset. Based on the assumption that probation officers perform similar supervisory and enforcement duties throughout the country, it is reasonable to conclude that probation officers in Ontario, like those in Alberta or Nova Scotia, are involved in law enforcement such that it would disqualify them from serving on a jury.
CONCLUSION
[19] For the reasons set out above, I find that a probation officer is a person engaged in the enforcement of law. As such, a probation officer is ineligible to serve on a jury in Ontario, pursuant to s. 3(1) of the Juries Act.
[20] Therefore, I have granted the request of jury panel member No. 407 to be excused from attending for jury selection. Her name should also be removed from the current jury role.
Ellies R.S.J.
Date: October 18, 2019