Justice rules unvaccinated jurors won't be able to serve in upcoming Calgary trial

A Court of Queen's Bench of Alberta justice has excused all unvaccinated potential jurors in an upcoming Calgary jury trial. 

This ruling also applies to those who refused to state their vaccine status.  

Hon. Justice Nicholas E. Devlin ruled that the administration of justice is better served as a result.

The court met Friday morning to select a jury for a sexual assault trial set to take place Monday, on the heels of the province declaring a public health emergency, as masses of people have become critically ill and hospitalized from COVID-19.

"This trial is taking place in what is colloquially known as the fourth wave of the COVID-19 pandemic," Devlin's judgement said. 

The justice ruled that vaccination is safe, prevents the spread of COVID-19, and is a proven method of reducing the risk and prevalence of the virus. 

"This isn't something that typically we've seen, not in the context of a public health outbreak and not in another context that I could think of, have we excluded entire categories of jurors," says Lorian Hardcastle, a health law and policy professor at the University of Calgary. 

"Certainly there are one-off exclusions, but this is the only example where I can think of the exclusion of entire categories of people from jury duty." 

The case doesn't relate to vaccines, so safety can be a priority for the justice, Hardcastle said. 

The justice had no evidence that an absence of vaccination is more or less prevalent in any social, ethnic, or other demographic groups, the ruling read.

"Certainly we have evidence that some demographic groups are vaccinated in higher and lower proportions," Hardcastle says, but she added that the justice noted in his ruling that he didn't have that evidence before him, and that the excused jury ran the age, gender and ethnic spectrum.

"Of the few people who had to be excluded, it wasn't like they were all of a particular group," she said.  

Trials must proceed as quickly as possible and if jurors became sick or infected it could cause the trial to be stopped or declared a mistrial, said Juliet Guichon, associate professor of law and ethics at the University of Calgary. 

Having jurors spread COVID-19 could cause an unnecessary disruption in what is already a complicated matter, which is to give the defendant a fair trial. 

"The proper administration of justice requires that people in a pandemic are vaccinated so that they can participate as jurors," she says. 

"Other jurors need to know that they are not likely to be infected while they're doing their civic duty." 

In addition to the ruling from the justice, the Court of Queen's Bench of Alberta adopted mandatory vaccination policies which came into effect Tuesday. That policy applies to all secure areas of courthouses used by judicial officers and staff. 

And as of Oct. 8, a policy will come into effect which says counsel, service providers and visitors wishing to access the secure areas of Alberta courthouses to which public access is restricted will be questioned about their vaccination status. 

The chief justice of Ontario Superior Court of Justice ordered that only fully vaccinated Ontarians will be able to serve as jurors for the time being. That ruling is in place until Oct. 8, but could be extended.