courts in b.c. and ontario at odds over issue of vaccinated jurors
the courts in b.c. and ontario are taking a different approach on the issue of whether jurors in criminal trials should be covid-19 vaccinated.
sep 1 2021
2 minute read
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by: keith fraser
with the fourth covid-19 wave fuelled by the delta variant upon us, courts in b.c. and ontario have taken a different approach to the question of whether prospective jurors in criminal trials should be asked whether they are fully vaccinated.
on aug. 8, b.c. supreme court justice geoffrey gomery rejected a crown application to consider asking members of the jury panel in a sex-assault trial in powell river about their vaccination status.
the judge noted that criminal jury trials in b.c. had been taking place under the threat of the covid pandemic since fall 2020 and, until quite recently, it could be assumed that most jurors were unvaccinated.
he said that the proposed question as to vaccination status encroaches on a private and personal sphere and panelists might well have reasons not to wish to discuss their vaccination status in public in the intimidating environment of a courtroom.
but last week, a judge in an ontario murder trial released a ruling that said that in the context of the burgeoning fourth covid wave, allowing an unvaccinated person to serve as a juror would irresponsibly introduce risk to the trial. justice kevin phillips said an unvaccinated juror is a potential conduit for covid to make its way into the jury room with such a result derailing the proceedings. he said no unvaccinated jurors would be allowed in the trial.
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currently there is no policy in b.c. on whether prospective jurors should be vaccinated in order to qualify to sit on a criminal jury, and in-court operations, including jury operations, are the responsibility of judges. juries in criminal cases in the province were suspended when the pandemic hit in march 2020 but resumed in september 2020.
mark cacchioni, the criminal defence lawyer in the powell river case, said he opposed the crown’s application and called the judge’s ruling a “well-reasoned” decision. he said the main reason he opposed vaccination questions for the jury panel is the concern that it might result in an unrepresentative jury of mainly older jurors since older people have higher vaccination rates.
but he noted that anecdotally at the time of the powell river trial, the sunshine coast community had an extremely low covid count with lower vaccination rates than other communities.
“let’s say hypothetically a jury trial was to start next monday in the city of kelowna, you might get an entirely different ruling because on the ground in kelowna right now, they appear to be in a fourth wave of delta variant,” cacchioni said
in ontario, juries in criminal cases have been suspended until recently when the ontario government announced they would be resuming in september.
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james harbic, the criminal defence lawyer in the ontario case, said he appreciated the judge’s decision to disallow unvaccinated jurors.
“i am not looking forward to being in a courtroom for eight weeks with people who don’t have the double vaccination,” he said.
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