The Lawyer's Daily is now Law360 Canada. Click here to learn more.

People unvaccinated against COVID-19 unable to serve jury duty in murder trial, judge rules

Thursday, August 26, 2021 @ 2:26 PM | By Amanda Jerome

In a pretrial ruling, Justice Kevin Phillips of the Ontario Superior Court of Justice determined that the jury for an upcoming murder trial must be fully vaccinated against COVID-19.

“I intend as part of the jury selection process 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,” he wrote in a decision released Aug. 25.

Justice Phillips noted in R. v. Frampton, 2021 ONSC 5733, that “[P]ursuant to s.626 of the Code, a person’s eligibility to serve as a juror is governed by the Juries Act” and s. 4 of the 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 judge explained that serving jury duty “requires a physical ability to attend court each day of the trial, along with an ability to observe the proceedings with focused attention.”

“The job also requires interaction and sometimes spirited communication in a confined indoor space,” he added, noting that COVID-19 is a “serious and contagious disease that is spread through respiration.”

Justice Phillips stressed that COVID-19 is “potentially fatal and well worth being concerned about.”

“There is a particularly vicious mutation currently circulating — the so-called Delta variant — and cases of Covid-19 in the community are increasing in a worrisome ‘fourth wave,’ ” he wrote, noting that “[D]ata accumulated from around the world appears to show that the available vaccines are very effective.”

Even though “preventive measures like plexiglass, distancing, masks, et cetera, likely have some salutary effect in reducing Covid-19 spread, it has become clear that the best available method to reduce the risk of transmission and the development of serious illness (or worse) is vaccination,” he stressed.

“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,” the judge added.

Justice Phillips went on to explain that “including an unvaccinated person on the jury introduces a real risk that the trial could be compromised” so 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,” he added.

The judge said he could not 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,” he wrote, noting that, regarding his first point, “[T]esting 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,” he reasoned.

The court acknowledged that Ottawa had a “special courtroom set up for jury trials during the pandemic” where the jury room and jury box were “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,” Justice Phillips explained, the first being that “plexiglass and the like does not always work as it is supposed to.”

“This is not my first jury trial during the pandemic. I did a long trial in 2020 in the same special courtroom. What I found is that human nature being what it is, people often slip up on the distancing and related rules, especially as they get familiar with each other and their surroundings. I repeatedly saw jurors do things like leaning in to make comments to each other or to assist one another in finding something in a photobook. I actually had to tell a particular gentleman to stop holding the door for the person exiting after him because it caused them to come too close,” he wrote, noting that the second “reason to reject the non-vaccination measures is that they are simply not the best way.”

The judge stressed that 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,” he determined.

Justice Phillips acknowledged that in other contexts “accommodations are made for unvaccinated persons.” However, he noted, the same reasoning for contexts such as keeping kids in school, “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,” he stressed.

The judge also stressed that he had “considered the issue of privacy” and that is it “unusual for a judge to directly ask a prospective juror about particular information related to their health.”

“While we are told about all kinds of health limitations from those who wish to be excused, we typically do not proactively inquire on the subject in any specific sense,” he reasoned.

Justice Phillips noted that it’s “important to consider that the law understands privacy to exist on something of a sliding scale.”

“In my view, the privacy interest inherent in whether a person has or has not been vaccinated against Covid-19 would sit toward the low end of the privacy spectrum. Unlike, say, a sexually transmitted disease or the accessing of mental health services, a Covid-19 vaccination is not a potentially stigmatizing medical procedure. It is not surprising that many vaccination centers were set up in gymnasia or other non-private open spaces. It even became fashionable for ‘influencers’ and others to post photos on social media of themselves getting the jab,” he wrote.

The judge believes the “real privacy interest lies in the desire an unvaccinated person might have to avoid having to reveal or explain a considered decision to forego the shot.”

“Covid-19 vaccination has been quite well received by the broader public and those who have decided not to get onboard are sometimes portrayed as contrarian or even irrational. This is not a problem, however, for the simple reason that I will be asking only whether a candidate has been vaccinated, not why not. Everybody knows that some people cannot be vaccinated due to a medical reason. No one would fault or look askance at anyone in such a circumstance. 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,” he determined, ruling that any prospective juror will be excused from duty in this case if they have not been fully vaccinated.

If you have any information, story ideas or news tips for The Lawyer’s Daily please contact Amanda Jerome at or call 416-524-2152.