We had recently written about an August 25, 2021 Ontario decision in which the court ruled that all prospective jury members would be asked about their COVID-19 vaccination status and those who were unvaccinated would be excused from jury duty.
It should also be noted that a British Columbia court refused to ask jurors about their vaccination status in an August 8, 2021 decision.
In contrast, on September 13, 2021, a Quebec court issued a judgment in which it ruled that unvaccinated jurors could serve on a jury.
Accused Requests Exclusion of Unvaccinated Jurors
A Quebec man was set to go to trial on September 14, 2021 for one count of breach of trust. The duration of the trial was meant to last several weeks.
The accused applied to court asking that only fully vaccinated jurors be selected to serve on the jury.
The accused’s main argument related to ensuring the proper conduct of the proceedings. He wanted to prevent the trial from ending without a verdict or from being unduly delayed due to incidents related to the COVID-19 pandemic.
In response, the Crown asked the court to reject the accused’s request, arguing that no questions about potential jury members’ vaccination status should be asked during jury selection.
The Law on Jury Selection
Under s. 626 of the Canadian Criminal Code, jury selection has two stages. The first stage is the pre-trial stage in which a list of prospective jurors is compiled. The second stage is the courtroom stage, where jurors are chosen from the list.
It should be noted, however, that jurisdiction over each of these stages is clearly divided between the federal government and the provinces: the first stage is governed by provincial legislation and the second falls exclusively under federal law.
Thus, in Quebec, the pre-trial stage is governed by the Jurors Act which provides for causes of unfitness to serve as a juror and the possibility for certain candidate jurors to request an exemption as set out in ss. 3-6 of the Act.
Section 3 of the Jurors Act specifies:
3. To qualify as a juror, a person must:
(a) be a Canadian citizen;
(b) be of full age; and
(c) be entered on the list of electors […].
Section 4 sets out a list of persons who are legally disqualified from serving as jurors, and s. 5 states, in part:
5. The following persons may be exempted from serving as jurors:
(g) persons whose health or domestic obligations are incompatible with serving on a jury; and
(h) if the public interest allows it, persons having reasonable cause for exemption on a ground not provided for in the preceding paragraphs.
The accused argued that pursuant to s. 5(g) and (h) of the Jurors Act, the court should exclude unvaccinated prospective jurors from the jury. In the alternative, he argued that the court should use its inherent jurisdiction to make the exclusion.
Court Distinguishes Ontario Decision Based on Legislative Differences
The court began by noting that the August 2021 Ontario decision ruling that unvaccinated jurors would be excluded from juries was based in part on s. 4(1) of Ontario’s equivalent law, the Juries Act, which states:
Ineligibility for personal reasons
4 A person is ineligible to serve as a juror if the person,
(a) 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 […].
Thus, in the Ontario case, the court held that unvaccinated persons were incapable of performing jury duty and accommodation could not reasonably be undertaken to enable such persons to exercise the function of a juror. In addition, the court was of the opinion that asking prospective jurors about their vaccination status was low on the spectrum of information relating to their private life.
The Quebec court held, however, that the law in Ontario is different from the law in Quebec on this matter because the Quebec legislation does not provide for incapacity due to a physical incapacity, but only incapacity due to a mental impairment or disability. The court therefore ruled that, given the difference between the provinces’ legislation, it was not bound by the reasoning in the Ontario decision.
The court also stated:
“Of course, as surprising as a person’s decision not to receive a vaccine during a pandemic may be, the court cannot in any way equate the refusal to be vaccinated with a mental impairment or to a mental illness such that a person is disqualified from becoming a juror.” [translated]
Court Rules that Unvaccinated Jurors Can Serve on Jury
The court rejected the accused’s argument based on s. 5 of the Jurors Act, noting that the section regulates situations in which a juror may ask for an exemption, not situations in which a person is legally barred from serving on a jury. Additionally, the court noted that Quebec has no current requirement that jurors be fully vaccinated. While the court observed that Quebec implemented a “vaccination passport” on September 1, 2021, the so-called passport is not required in courthouses.
The court also addressed issues of privacy, stating:
“The selection of an adequately vaccinated jury also raises issues regarding the privacy rights of prospective jurors….
The principle of selection of juries in Canada is also based on the fundamental principle of respect for the privacy of candidate jurors…” [translated]
Finally, the court refused to use its inherent jurisdiction to exclude unvaccinated jurors in the absence of rules specifically directing it to do so.
In the result, the court therefore dismissed the accused’s request, although it noted that it remained open to prospective jurors to request an exemption due to the COVID-19 pandemic, whether they were vaccinated or unvaccinated.
Contact Campbell Litigation for Experienced Advice on Trial Matters
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 taking 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.