As a result of the COVID-19 pandemic, jury trials in Ontario have been significantly reduced, especially in areas that were hit hard by the virus. However, the number of jury trials will be increasing this fall due to the serious backlog in cases awaiting trial.
Last week, Superior Court Justice Geoffrey Morawetz gave an order that any potential juror who is unvaccinated or prefers not to provide an answer regarding vaccination status will have their jury service deferred to a later date. This order lasts until October 8, 2021, but may be extended.
OTTAWA JUDGE RULES VACCINATED JURORS ONLY FOR MURDER TRIAL
This order for requiring all jurors to be vaccinated in Ontario follows the recent pre-trial decision by an Ottawa judge. Justice Kevin Phillips ruled that the jury hearing a murder trial beginning in September will be made up of fully vaccinated individuals only given the threat posed by the highly contagious delta variant.
Justice Phillips will be asking each potential jury member if they have been fully vaccinated. Those that are not will be disqualified from becoming part of the jury.
Justice Phillips stated:
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.
The Ottawa courthouse has a special room for jury trials to proceed during the pandemic. The room has Plexiglas and hand sanitizer dispensers. However, Phillips admits that the protocols in place were broken during a trial he oversaw in the room in 2020.
According to Ontario’s Juries Act, jurors can be declared ineligible if they physically cannot perform their duties and cannot be “reasonably accommodated” in such a way as to allow them to perform their duties.
Justice Phillips stated:
Any upside in accommodating an unvaccinated juror is outweighed by the downside of exposing the remaining jurors to risk of physical harm as we try to make this fourth wave the last one.
Justice Phillips was concerned that a COVID outbreak in his courtroom could delay the trial and the threat of the virus would be a “constant distraction” to those involved in the trial.
THE ISSUE OF PRIVACY
The issue of juror’s privacy was raised with respect to questioning the vaccination status of each potential jury member. Justice Phillips responded that the court is often informed of health concerns regarding potential jurors who request to be excused, however, it is uncommon for a judge to proactively seek a juror’s health information.
According to Justice Phillips, asking potential jurors about their vaccination status was toward the “low end of the privacy spectrum”. He noted that he will not be asking potential jurors why they did not receive the vaccination.
A DIFFERENT CONCLUSION IN BRITISH COLUMBIA
Juries in criminal trials in British Columbia were suspended between March 2020 until September 2020 due to COVID-19.
In early August, B.C. Supreme Court Judge Geoffrey Gomery took a different approach than that taken in Ontario. Justice Gomery rejected a Crown application to consider asking members of a potential jury in a sex-assault trial about their vaccination status.
Justice Gomery noted that criminal jury trials have continued to take place despite the ongoing COVID-19 pandemic since the fall of 2020. Up until recently, most jurors were unvaccinated. He maintains that questioning whether a jury member is vaccinated encroaches on personal matters that an individual may not wish to discuss in a public and in an unfamiliar environment such as a courtroom.
Justice Gomery stated:
Objectively, the risk to jurors, if some of them are unvaccinated, is very low. If panelists had expressed concerns about COVID exposure, I would have excused them in any event. … Panellists might well have reasons to wish not to discuss their vaccination status in public in the intimidating environment of a courtroom. Some might be intimidated by the question itself. …
Defence lawyer, Mark Cacchioni, who opposed the Crown’s application with respect to asking jurors their vaccination status felt that the judge’s ruling was “well-reasoned”. Cacchioni opposed the questioning of juror’s vaccination status due to his concern that it might result in an unrepresentative jury made up of mainly older jurors as they have the highest vaccination rates in the province.
WHAT IS A JURY?
A jury is a group of individuals randomly chosen to observe a trial. A judge acts as guide for the jury during the trial and is available to explain any legal terms and the law. As a juror, your unbiased opinion is crucial to the accused receiving a fair trial.
In Canada, it is the civic duty of every individual who is 18 years or older to serve as a juror, if selected. Approximately 700,000 people living in Ontario are mailed jury questionnaires to determine if they are eligible for jury duty. Those that qualify to serve as jurors may receive a letter in the mail summoning them to an Ontario courthouse to participate in the jury selection process.
If you are summoned for jury duty, you may request a deferral (have your jury service rescheduled) or an excusal (be excused from jury duty for the year). You may feel you cannot serve as a juror due to illness, travel, employment, working in a certain profession or other hardships. Only a judge may grant you a deferral or an excusal.
CONTACT AFFLECK & BARRISON LLP
If you have been charged with a criminal offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service to protect your rights and to ensure that you have access to justice at all times. We are available when you need us most.