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Vaccination mandates have been making headlines for weeks, especially since the provincial government announced on September 22 that Ontario residents must have proof of vaccination to access gyms, movie theatres, concerts, or dine-in restaurants.

More recently, there have been conversations about whether people should be able to serve on juries if they are not fully vaccinated. In a trial, jurors are often seated together and are in close contact during breaks and deliberations. This has led some to question whether the COVID-19 vaccine should be mandated for potential jurors for the safety of other jurors and parties in trials. From a practical standpoint, an outbreak among jurors could derail a trial midway through the proceedings. However, privacy concerns have some questioning whether it is fair to ask a juror to disclose their vaccination status in a public forum.

In this blog post, we will examine the current position on mandating vaccination for jurors in a number of provinces across the country.

Ontario: Potential Jurors Must be Vaccinated

In late August, a judge with the Ontario Superior Court of Justice ruled in a pre-trial motion that only fully vaccinated jurors would be considered for a murder trial scheduled to last several weeks. In R. v. Frampton, Justice Phillips issued a pre-trial ruling stating prospective jurors would be asked if they were fully vaccinated as part of the jury selection process. Any person who was not would be excused, and their service deferred. In the ruling, Justice Phillips cited s. 4 of the Juries Act, which states that:

A person is ineligible to serve as a juror if the person:

  1. is physically or mentally unable to discharge the duties of a juror and cannot be reasonably accommodated in such a way as to allow them to perform those duties; …

Noting service as a juror requires daily courtroom attendance, communication in a confined space, and focused attention, a person who contracted COVID-19 would not be able to properly concentrate on their duties. Further, the fear of spreading the virus would be “a constant distraction” for jurors and others in the courtroom.

As “including an unvaccinated person on the jury introduces a real risk that the trial could be compromised”, that person is “physically unable to perform the role of juror.”

On September 7, Superior Court Justice Geoffrey Morawetz issued an order that all potential jurors who were not fully vaccinated, or who opted not to disclose their vaccination status, would have their service deferred to a future date.

Québec: Judge Refuses to Exclude Unvaccinated Jurors

On September 17th, Justice Mario Longpre of the Québec Superior Court ruled that vaccination would not be a requirement for potential jurors in a fraud trial over which he was presiding. The judge made note of Justice Phillips ruling in Ontario but distinguished the situation based on differences in Ontario’s Juries Act and Québec’s Jurors Act, which does not allow for a potential juror to be declared ineligible based on a physical inability to perform their duties.

Further, the judge noted that asking potential jurors about their vaccination status posed potential privacy and human rights concerns.

British Columbia: Increased Infection Rates Prompt Judge to Mandate Vaccination for Jurors

Judges in British Columbia have reached different conclusions when it comes to vaccine mandates for jurors. In August, B.C. Supreme Court Justice Geoffrey Gomery refused the Crown’s request to question potential jurors about their vaccination status. In making the ruling, Justice Gomery cited the fact that many jury trials had already occurred during the pandemic with no outbreaks, thanks to safety measures including plexiglass barriers, masks, and social distancing. Further, Justice Gomery expressed concern over the potential privacy repercussions involved in asking potential jurors to disclose their vaccination status.

However, just a few weeks after Justice Gomery’s ruling, another judge with the B.C. Supreme Court, Justice James Williams, arrived at the opposite conclusion. Justice Williams, overseeing a murder trial, ruled that all jurors who served on the trial needed to be fully vaccinated. While noting that other judges had previously ruled otherwise, Justice Williams cited increasing transmission rates as a concern that had the potential to put the trial at risk:

“[I]t would be a travesty to find this trail derailed and having to be brought to a premature conclusion – a mistrial – because COVID-19 infection had rendered participants, whether jurors, counsel, staff or anyone else involved, unable to continue”.

Alberta: Allowing Unvaccinated Jurors Too Risky in Light of Fourth Wave

In late September, a judge with the Alberta Court of Queen’s Bench ruled that jurors on a criminal trial would need to demonstrate they had been fully vaccinated before they would be permitted to serve. Alberta has some of the highest rates of infection and serious illness in the country. Many Alberta hospitals are currently overwhelmed with critically ill patients, the majority of whom are unvaccinated.

In reaching his decision, Justice Devlin noted three factors:

  1. Unvaccinated people were at an increased risk of contracting COVID-19 during the trial, which would jeopardize the health and safety of other jurors and trial participants.
  2. If a juror were to become ill during the trial, it could put the entire trial at risk. With courts already facing backlogs, it would “bring the administration of justice into disrepute in the eyes of the public” to needlessly increase the chance that a trial could be aborted due to a COVID-19 outbreak.
  3. Any delay had the potential to compromise a defendant’s right to a fair trial in a reasonable time.

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