Unvaccinated? Then No Jury Duty for You!
As the COVID-19 pandemic continues unabated, and as Ontario is on the brink of rolling out “Vaccine Passports” to attest to the fully-vaccinated status of the holder, a recent ruling in a criminal pre-hearing has made an important pronouncement: People who are unvaccinated are ineligible to serve on a criminal jury.
That issue was the focal point in a pre-trial hearing in R. v. Frampton, where a judge of the Ontario Superior Court of Justice was asked to consider whether all members of the jury being empanelled for the upcoming murder trial will have to be fully vaccinated against COVID-19.
The judge said that, as part of the jury selection process, the judge intended “to ask each prospective candidate if they have been fully vaccinated. If the answer is a negative one, that candidate shall be excused in accordance with s. 632(c) of the Criminal Code.” That Code provision allows a judge to order any juror to be excused from jury service, in his or her discretion.
The judge reasoned that s. 626 of the Criminal Code governs a person’s eligibility is governed by the Juries Act, which in turn provides in s. 4 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.”
Against this background, and in justifying the need for full vaccinations for each juror, the judge explained:
I cannot see how an unvaccinated juror could be reasonably accommodated. I have considered three ideas before coming to that conclusion. First, that testing of the unvaccinated juror could ensure that s/he does not carry the virus. Second, that protection methods other than vaccination can be relied upon to ensure everyone’s safety. Third, that we allow the unvaccinated to mix in with the vaccinated in many other contexts without difficulty and that jury service should be no different.
On the first point, I reiterate that a juror must be able to attend court every sitting day without interruption. Testing the unvaccinated juror every day, or at some interval, or at least when possible symptoms emerge, all while keeping the trial moving forward on schedule strikes me as practically impossible. For that matter, I would expect the vaccinated jurors would also want to be tested if their unvaccinated colleague is manifesting symptoms as vaccines are never one hundred per cent effective. This will all likely cause persistent and meaningful delay. We will spend more time waiting for test results than hearing evidence.
Moving to the prophylactic measures approach, I note that Ottawa has a special courtroom set up for jury trials during the pandemic. The jury room and jury box are divided by plexiglass, everyone wears masks, there is hand sanitizer everywhere and care is taken to keep physical distance.
I have two issues with relying on this sort of thing to address the problem. First, plexiglass and the like does not always work as it is supposed to. …
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, I am aware that in many contexts, accommodations are made for unvaccinated persons. …The same cannot be presently said for Covid-19 which is now endemic and spreading in a significant and uncontrolled manner. It continues to qualify as a global pandemic and is causing substantial harm. As a result, in my judgment, the cost-benefit analysis breaks the other way when it comes to Covid-19 vaccination and jury duty. 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.
Finally, the judge also acknowledged that privacy concerns play into this conclusion, since it would be “admittedly unusual for a judge to directly ask a potential juror about particular information related to their health”. However, the judge was comforted by the knowledge that “Some things are more private that others”, and that the vaccination-status question would be geared toward determining whether a prospective juror was vaccinated; it would not investigate the reasons why or why not.
For the full text of the decision, see
R v. Frampton, 2021 ONSC 5733
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