We have previously written about the numerous issues the COVID-19 pandemic has caused for civil jury trials in Canada over the past 18 months, here and here.

More recently, on August 25, 2021, an Ontario court was faced with the question of whether to allow non-vaccinated people to sit on a jury trial. It ruled that all prospective jury members would be asked about their COVID-19 vaccination status and those unvaccinated would be excused from jury duty.

In addition, following the release of the below decision, the chief justice of the Superior Court of Justice issued an order wherein potential jurors who are unvaccinated or prefer not to answer the question will have their jury service deferred to a later date as of September 7, 2021. The order is set to last until October 8, but can be extended.

Jury Trial Scheduled to Start on September 7, 2021 

The criminal case before the court was for a charge of first degree murder. A multi-week judge and jury trial had been scheduled to commence on September 7, 2021.

Pursuant to the Criminal Code, a person’s eligibility to serve as a juror is governed by the Juries Act. Section 4 of the Juries Act provides that a person is ineligible for service if he or she is physically 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.

The court began by explaining that the purpose of its ruling was to determine whether to ask each prospective candidate if they had been fully vaccinated as part of the jury selection process. And, if the question would be asked, whether unvaccinated people would be excused from duty.

Court Explains Requirements for Jury Members

The court began by explaining that serving on a jury requires its members to be physically able to attend court each day of the trial, along with an ability to observe the proceedings with focused attention. It further stated that the job also requires interaction and sometimes spirited communication in a confined indoor space.

Noting that COVID-19 is a disease spread through respiration, the court then stated that while preventive measures like plexiglass, distancing and masks likely have some salutary effect in reducing the spread of COVID-19, it has become clear that the best available method to reduce the risk of transmission and the development of serious illness is vaccination.

Court Explains Reasons for Excluding Non-Vaccinated Jury Members

The court then reasoned:

“To my mind, in the context of the burgeoning “fourth wave”, allowing an unvaccinated person to serve as a juror would irresponsibly introduce risk to the trial.  An unvaccinated juror is a potential conduit for the COVID-19 virus to make its way into the jury room.  Obviously, such a result would derail the proceeding.  Indeed, worrying about such an outcome would likely become a constant distraction.

Because including an unvaccinated person on the jury introduces a real risk that the trial could be compromised, I conclude that such a person is physically unable to perform the role of juror. In the context of the pandemic’s fourth wave, an unvaccinated person is not physically able to contribute to the jury process in the manner called for in the circumstances.  Simply put, a juror candidate who is unvaccinated against a serious and contagious illness that is currently spreading out of control and about which there is much concern introduces untenable risk of physical harm as well as distracting anxiety to the others compelled by law to serve alongside.”

Court Finds That Accommodation Would Not Be Feasible

The court then addressed the issue of accommodation for non-vaccinated jury members. It concluded that such accommodation could not be reasonably accomplished.

First, it considered whether testing could be used to accommodate the unvaccinated. It held that such measures would cause too many delays in schedules, reasoning, in part: “We will spend more time waiting for test results than hearing evidence.”

Second, the court considered whether there were any alternative protection measures available. While the court noted that Ottawa had set up a courtroom specifically for jury trials during the pandemic, it held that that the use of protective measures, such as plexiglass, do not always work as intended. Additionally, the court stated:

“A second, and more compelling, reason to reject the non-vaccination measures is that they are simply not the best way. The available science makes clear that vaccination is the superior approach to minimizing risk of COVID-19 illness both per individual and on a collective basis. The stakes are high.  COVID-19 is potentially fatal.  In endeavouring to minimize risk of transmission, why would we opt to use a method that is not the best method? Surely, the reputation of the administration of justice would be compromised if a court declined to adopt the optimal approach toward preserving the health of those compelled by law to participate in the judicial process.”

Finally, the court held that, in a cost-benefit analysis, any upside in accommodating an unvaccinated juror would be outweighed by the downside of exposing the remaining jurors to risk of physical harm.

Court Considers Issues of Privacy

In closing, the court considered the privacy issues raised in asking prospective jurors about their vaccination status. Noting that it is unusual for a judge to directly ask a prospective juror about health information, the court ultimately held that the privacy interest inherent in whether a person has or has not been vaccinated against COVID-19 sits toward the low end of the privacy spectrum.

The court opined that the real privacy interest at stake was the desire of an unvaccinated person to not have to reveal or explain their decision to have foregone the shot. The court therefore stated that prospective jury members would not be asked why they had not received the vaccination, but only whether they had done so. The court reasoned:

“When a potential juror answers my question about whether s/he has been vaccinated in the negative, no one will know whether it is as a result of a medical excuse or another reason. As such, the prospective juror’s conscience-based decision-making process is not revealed or inquired into.  A person who has decided to avoid vaccination is indistinguishable from those with medical excuses and cannot therefore have any concern about a negative reaction from me or anyone else.”

In the result, the court therefore ruled that it would ask each potential juror whether they had been fully vaccinated. If they had not, it would excuse them from duty.   

Get Advice

At Campbell Litigation, we work with clients to find the best resolution for their legal issues. While that can and sometimes does include going to court, we also offer clients private and time-efficient options, including mediation and arbitration.

Campbell Litigation will be your dedicated representative throughout the court process. While cases frequently settle, I will work with you to find the resolution that best meets your needs. That can mean making your case to court and pursuing an appeal when necessary.

Richard Campbell has been litigating since 1999, working almost exclusively on behalf of plaintiffs in a variety of areas – personal injury, professional negligence, product liability, and contract law. Richard conducts trials and appeals at all levels of the Ontario Courts, but is a strong advocate of mediation and other forms of alternative dispute resolution where they offer a reasonable chance of an economical and workable solution.

What sets Richard apart is his commitment to providing service to his clients – every client can depend on communication, compassion and experienced advice. For legal assistance, call him at 519-886-1204 or contact us online.