if a conflict could be found on the question of the admissibility of confessions, and this Court came to the conclu- TEE sion that the Court of Appeal were wrong, the respondent would still be entitled to a new trial on the ground Taschereau J. of misdirection. In any event, the appeal of the Crown is c e bound to be dismissed, and it is not the function of this
Court to give advisory opinions on matters which cannot affect the final outcome of the appeal.
Even if I had any doubts on the matter, they would be cleared by the recent decision of this Court in the case of for the Court, my Lord the Chief Justice said:
The appellant, in view of the fact that there has been no dissent and that no conflict is alleged, is unable to ask this Court to reverse the judgment of the court of appeal on this fundamental question, and it means, therefore, that, even assuming there is a conflict on the other points raised in the appeal and even if he should succeed in getting this
Court to reverse the judgment of the court of appeal on these other points, the respondent would, nevertheless, remain acquitted. The appeal would be devoid of any possible practical result and the Court would be asked only to pass upon an academic question.
The application is dismissed.
Leave to appeal refused.
IN THE MATTER OF A REFERENCE AS TO THE
INTERPRETATION
OF
THE
JURY
ACT
OF
*Oct.22 ALBERTA.
Statute law-Juror-Qualification of-Liability to serve as-Age limits- *Feb. 4 Section 3 of The Jury Act, R.S.A. 192, c. 74 (now R.S.A. 1942, c. 130).
Section 3 of The Jury Act of Alberta provides that " * * * any inhabitant of the province of Alberta over twenty-five and under sixty years of age * * * shall be liable to serve as a juror in all civil and criminal cases tried by a jury * * *".
Held that persons outside of the age limits prescribed in section 3 are neither qualified nor liable to serve as jurors.-The Jury Act, in that respect, must be taken to be a code intended to embody the law of the constitution of the jury and section 3 by a necessary implication prescribes the qualification of jurors in substitution for that previously existing. Mulcahy v. The Queen (L.R. 3 H.L. 306) dist.
*Present at the hearing of the appeal:-Kerwin, Hudson, Taschereau,
Rand, Kellock and Estey JJ.-Hudson J. died before delivery of the judgment.
(1) [19451 S.C.R. 1, at 9.
S.C.R.]
the Court as to the interpretation of The Jury Act of that province, and more specially of section 3 of that Act. H. J. Wilson, K.C. for the Attorney General of Alberta. John J. Connolly, appointed by the Attorney General of Alberta.
J.:-This reference raises a question of interpretation of The Jury Act of Alberta, R.S.A. 1922, c. 74. The precise issue is whether persons under 25 and over 60 years of age are competent to serve as jurors, although not bound to do so.
Section 3 of the Act is the controlling provision and, under the heading "Liability to serve as juror", is in these words:
Prior to the enactment of chapter 74 the matter was governed by the Northwest Territories Act, section 71 of which was as follows:
By the general rule at common law, disregarding special cases where aliens were concerned, all male natural born subjects over the age of 21 years, (liberi) probi et legales homines, (Comyn, Challenge A3) were qualified to act as jurors subject to exemptions and challenges. It will be seen, therefore, that section 3 makes an important change by extending the class liable to include women. What, then, are the qualifications of a woman, and where are they to be found? Only in section 3 is there any language from which they may be inferred, the language imposing the conditions of liability; the characteristics prescribed for that, including the ages mentioned, must, therefore, be the qualifications for the additional class. If that is so and as all men and women liable are designated by the word "inhabitant", how can the implication necessary to women be withheld from application to men? Mr.
Wilson sought support from the Sex Disqualification (Removal) Act passed by the province in 1930, but that can be of no assistance in the interpretation of an enactment of 1921.
Section 7: "compelled to serve"
* "qualified persons". Section 8: "a separate list of persons liable to be returned as jurors". Section 4: "shall be exempt from being returned and from serving". Section 14, form A:
"List of persons liable to be returned and to serve as jurors".
Section 15: "qualification of the jurors". Section 17:
"qualification, exemption and disqualification". Section 35:
"qualification, exemption or disqualification".
'These provisions make it clear that the persons to be returned on the sheriff's list are those only who are liable to serve as jurors. The names of persons outside of 'the prescribed ages should never appear on the list, and it is only persons properly listed who are to be summoned. But it is argued that the judgment in Mulcahy v. The Queen
(1), concludes the question. As is generally -the case, however, where the question is on a statute, that decision is not in pari materia. In Mulcahy (1) the statute, it is true, directed the sheriff to return only the names of those qualified by the Act, but the qualification prescribed for persons between the ages of 21 and 60 was a property qualification which modified the existing law in that respect, and the affirmative provision was that all persons between the ages mentioned so qualified 'should be liable to jury service. This was treated as implying that persons over 60 years of age, qualified as to property, presumably by existing law, would be entitled to claim exemption, in contrast to being liable, but not be subject to challenge. was the distinction between exemption and disqualification. Here, the terms of qualification are those of the conditions of liability, while there each was dealt with separately.
The exemption which is suggested for persons between 21 and 25 years of age and over 60 is an implied personal privilege by reason of age alone. Such a privilege was unknown at common law or even under the Statute of Westminster 2, 13 Edw. 1, c. 38; and any reason why there should be attributed to the legislature as an implication from doubtful language the intention to deem a man of 24 years of age to be qualified as a juror, but to sit only if he pleases while his neighbour of 25 should be bound to that duty, has not been made evident to me. I take the Act in these respects to be a code intended to embody the law of the constitution of the jury; that section 3 by a necessary implication prescribes the qualification of jurors in substitution for that previously existing; and that persons outside of the prescribed age limits are neither qualified nor liable.
I would, therefore, dismiss the appeal without costs. Appeal dismissed without costs. MARIO FURLAN .......................
THE CITY OF MONTREAL AND
OTHERS ...........................
Provisions of section 36 of the Act do not contemplate, as contended by the appellant, that an appeal would lie to this Court from a provincial court of original jurisdiction, on the ground that, for the purposes of a FuAN particular proceeding, there is no further appeal from that court. CrrY Under section 36, it is immaterial whether "the highest court of final resort" has appellate or original jurisdiction, or both: in either event there is to be no appeal except from such highest court and not merely from a court which may be the court of last resort in any particular proceeding.
James Bay Railway Co. v. Armstrong ([19091 A.C. 624) foll.
International Metal Industries Ltd. v. City of Toronto ([19391 S.C.R. 271) aff.
MOTION for leave to appeal to this Court from the judgment of the Superior Court for the district of Montreal, in the province of Quebec, Gibsone J., quashing a writ of certiorari issued against the respondents and affirming a judgment of a Recorder of the city of Montreal, which found the appellant guilty of violating a by-law of that city. W. G. How for the motion.
A. Berthiaume K.C. contra.
THE CouRT:-This is a motion for leave to appeal to this Court from the judgment of the Superior Court of Montreal. Leave to appeal has already been refused by the Court of King's Bench, Appeal Side. It is argued on behalf of the applicant that notwithstanding that no right of appeal to the Court of King's Bench exists from the judgment of the Superior Court, nonetheless this court may grant leave.
The Supreme Court of Canada is a statutory court with limited jurisdiction and if it has authority to grant the leave sought, such authority must be found within the terms of the statute. By Geo. VI, c. 42, the Act was amended and the following is now section 37, subsection 3; Save as provided by this section, but subject to section forty-four, no appeal shall lie to the Supreme Court except from the highest court of final resort having jurisdiction in the province in which the proceedings were originally instituted.
It is not suggested by the applicant that the present motion comes within the terms of section 37 itself and it is admitted that section 44 has no application. Accordingly, by the plain words of the remainder of the subsection there S.C.R.]
is no appeal except from the "highest court of final resort having jurisdiction in the province". It is plain from subsection 2 of the section that the "highest court of final resort" having jurisdiction in the province is, in the prov- Court ince of Quebec, the Court of King's Bench, Appeal Side. Accordingly 'this court is prohibited from exercising any appellate jurisdiction in an appeal which does not come from the Court of King's Bench, Appeal Side.
It is contended on behalf of the applicant that it is contemplated by section 36 that an appeal lies from a provincial court of original jurisdiction where, for the purposes of the particular proceeding in question, there is no further appeal. Even if there were any ambiguity in the language of that section (and we think there is not) such ambiguity would be resolved by the express language of section 37, subsection 3. In our opinion all that section 36 does is to make it immaterial whether "the highest court of final resort" has appellate or original jurisdiction, or both. In either event there is to be no appeal except from such highest court and not merely from a court which may be the court of last resort in any particular proceeding. The question of the jurisdiction of this court in a matter such as this has already been determined adversely to the applicant's contention by the Privy Council in James Bay Railway Company v. Armstrong (1).
Their Lordships in dealing with a similar argument there said:
Since the amendment of the Supreme Court Act in 1937, already referred to, this court has decided the same point in a similar sense in International Metal Industries Limited v. The Corporation of the city of Toronto (2).
The application must therefore be dismissed with costs. Leave to appeal refused.
Statutes and regulations cited
-
Unresolved citations
- Section 3 of The Jury Act
- section 3
- Section 3