Alberta judge rules potential jurors in sexual assault trial will have to prove vaccination status

Protecting the right to 'expeditious justice' requires screening for unvaccinated jurors

Alberta judge rules potential jurors in sexual assault trial will have to prove vaccination status
An Alberta judge has ruled potential jurors in a sexual assault trial must prove they are vaccinated

An Alberta Court of Queen’s Bench judge has ruled that no jurors will be allowed to serve in an upcoming criminal trial unless they confirm they have been vaccinated.

“I find that protecting the right to expeditious justice mandates screening for unvaccinated jurors at the present time,” Justice Nicholas Devlin wrote in a decision released Friday, following up on an oral decision he gave earlier.

The ruling in R v Aiello applies to those who say they are unvaccinated and potential jurors who refuse to state their vaccine status.  

Last week, the court met to select a jury for a sexual assault trial set for Monday, Sept. 27. The trial comes during the fourth wave of a pandemic that has created a healthcare emergency in Alberta, with Intensive Care Units and regular hospital wards struggling to deal with patients critically ill with COVID-19. The majority of these patients are unvaccinated.

“Excusing unvaccinated individuals does not reduce the representativeness of the jury in any discernible manner,” Devlin wrote. “There is, therefore, no right to have unvaccinated individuals on a jury.”

Added Devlin: “I do, however, find . . . based on our current state of scientific knowledge, that unvaccinated jurors stand at a significantly elevated risk of contracting, developing, and spreading COVID 19.”

He added that prophylactic measures have been taken in the Alberta court system to safely conduct jury trials – such as mandating masks and increased sanitation measures, “those measures are a minimum, not a maximum.”

Vaccination is the “most certain, safe, and obvious way of preventing the spread of COVID 19 and attenuating the risk it poses to the most important parts of our life, including the proper administration of criminal justice.”

Justice Devlin says that he is satisfied that vaccination is a “safe and highly effective” means of preventing the spread of COVID-19 and also lessens the symptoms in those who do become infected.

“Short of ceasing all contact with other humans, vaccination is now proven to be the single most effective method of reducing the risk and prevalence of COVID 19, a disease which has ravaged our society, its institutions, and the physical and mental well-being of all Canadians.”

The judge also said he has no evidence that suggests the absence of unvaccinated jurors is more or less prevalent in any one or more social, ethnic, or other demographic groups. “Indeed, through the selection process that followed my oral decision, the handful of individuals who stated that they were not fully vaccinated spanned the age, gender, and ethnic spectrums.”

Devlin wrote that the Canadian Charter of Rights and Freedoms guarantees the right to a jury trial in criminal matters. “But that jury must be fair and impartial, and jurors should not be influenced by outside factors.”

The Supreme Court of Canada has also confirmed that the right to trial by jury does not “include an entitlement that the jury include a proportional representation of all the diverse groups in Canadian society.”

Devlin referred to SCC decisions that say what is required is a platform for the selection of a “competent and impartial” jury that ensures confidence and support in the criminal justice system. He noted that unvaccinated jurors not only potentially endanger the health of Albertans but could also hinder “expeditious” justice for several reasons.

First, an unvaccinated individual is at increased risk of contracting COVID 19 between jury selection today and the commencement of the trial next week and during the trial. “This would unfairly and unnecessarily compromise the health and safety of the other jurors, court staff who work closely with them, and indeed all trial participants. “

Second, a juror becoming symptomatic during the trial would likely scupper the entire proceeding. Calling together hundreds of citizens as a necessary prerequisite to a jury trial “is no small matter,” Justice Devlin wrote. 

He pointed to a backlog of trials, and the demand for trial time built up since the pandemic began. “The public and judicial resources dedicated to a jury trial are both scarce and precious,” he wrote.

“Needlessly increasing the risk that a trial run under these circumstances is aborted due to a COVID 19 infection would bring the administration of justice into disrepute in the eyes of the public.”

Third, any potential delay to the successful completion of the trial potentially hurts the defendant’s right to a fair trial in a reasonable time. He point4ed to The Supreme Court’s decisions in Jordan and Cody, which “make it abundantly clear” that timely justice is a crucial element of meaningful justice.

“An accused person whose trial was derailed and further delayed because a potentially unvaccinated juror brought COVID 19 into the jury room could legitimately complain that the conduct of the state in creating that situation was not reasonable.”

And finally, jurors must feel secure in carrying out their duties. “Members of the jury who are unsure as to one another’s vaccination status would be reasonably concerned and apprehensive about this factor throughout the proceedings.,” he wrote.” Such a distraction might be unquantifiable, but it could “implicate the essence of the right to be tried by an impartial jury.”

Devlin wrote that “to my mind . . . allowing an unvaccinated person to serve as a juror would irresponsibly introduce risk to the trial. “

Devlin wrote that 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.”

Devlin’s ruling pointed out that on Aug. 31, an Ontario Superior Court of Justice judge ordered that only fully vaccinated Ontarians would be able to serve as jurors for the time being. That ruling is in place until Oct. 8 but could be extended. 

In Alberta, courts and other sectors have adopted mandatory vaccination policies that came into effect last Tuesday. For the courts, the policy applies to all secure areas of courthouses used by judicial officers and staff. 

As of Oct. 8, another policy comes into effect in Alberta that says visitors, counsel and service providers who want to enter secure areas will be questioned about their vaccine status.

Danielle Boisvert, vice-president of the Criminal Trials Lawyers' Association in Alberta, says the decision is "not particularly surprising" given the province's recently imposed restrictions and exemptions, "the crisis faced by our healthcare system, and the tri-level court announcement regarding person's entering restricted areas of courthouses."

She adds that a possible issue that may arise is a "less representative" jury pool from which the jury will be selected. She notes some rural jurisdictions where vaccination rates are below the 50-60 percent range. "this decision could result in too much of the jury pool being excused, which could result in delays or adjournment of trials."

However, despite these concerns, Boisvert says the association "supports a safe workplace for all our members, Crown prosecutors, sherrifs, clerks and judges." Reducing the risk  of contracting COVID-19 or its variants "is the only way to ensure that our courts can continue to function without requirement another complete shutdown."

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