On September 7, 2021, the Chief Justice of Ontario’s Superior Court of Justice ordered that only fully vaccinated Ontarians will be able to serve as jurors for the time being. This order will be in place until October 8, 2021, and could be extended.

This order follows a period where jury trials have been scarce. They were originally suspended in March 2020 and then suspended again in February 2021 in response to increased infection rates throughout the province. Jury trials resumed on May 3, 2021. During the summer of 2021, only 11 civil jury trials occurred.

As we noted in a recent blog post, there is a large backlog of jury cases in Ontario resulting from ongoing COVID-19-related limitations. As recently as last summer, Ontario Attorney General Doug Downey had been seeking input from key stakeholders on whether to eliminate civil jury trials altogether, in part to help clear the backlog created by the pandemic. However, there were other concerns raised at the time, such as a jury’s ability to process complex medical or financial data, and the ability to remain impartial, particularly in cases involving insurance companies.  

At the time, it was noted that jury trials would likely not resume until a vaccine effective against COVID-19 became available. In the months since we have seen the introduction of multiple vaccines available for Canadians over 12 years of age. In light of this development, an Ontario judge recently ruled that only fully vaccinated people would be eligible to serve as jurors in an upcoming criminal trial. This ruling preceded the announcement from the Chief Justice, which applies to all jury trials at the Court of Justice.

Ontario Judge Rules He Will Only Accept Fully Vaccinated Jurors

TIn R. v. Frampton, Justice Phillips acknowledged the safety measures taken by Ontario’s courts to protect jurors during the pandemic. However, he noted the limitations of protective measures such as social distancing and 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”.

Justice Phillips considered the potential privacy risks of asking a person whether they had been fully vaccinated. As he pointed out, prospective jurors are not typically asked about their health or vaccination status and one could argue that they should not be asked about it due to privacy concerns. However, Justice Phillips noted:

“I think 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.”

What Are Ontario Courts Doing to Protect Jurors from COVID-19?

As noted in R. v. Frampton, Ontario courts have other precautions in place to protect jurors attending Ontario courts during the COVID-19 pandemic beyond the new vaccine requirements. For instance, Ontario Public Service employees (which includes Crown attorneys and courthouse staff) must be vaccinated or take regular COVID-19 tests. Plexiglas has also been placed in Ontario courtrooms between jurors, and each juror must wear a mask and fill out a symptom form. There are also restrictions on the number of people who can be in a courtroom at a given time.

Why Are Jury Trials Not Occurring Virtually During The COVID-19 Pandemic?

Jury trials have been suspended on and off throughout the COVID-19 pandemic, while non-jury matters were heard virtually. Some may be wondering why jury trials are not proceeding virtually. While the courts have not commented specifically on the issue, the likely reason is to ensure a fair trial. There are special rules relating to people who serve on a jury trial. For instance, jurors must not have any transmitting or receiving devices during the trial, such as a cell phone, laptop or tablet. And, once deliberations begin, jurors must stay in a hotel if they are unable to reach a decision by the late evening. Applying these rules to a virtual trial during the COVID-19 pandemic would, understandably, be difficult at best – and, at worst, could negatively impact access to justice by unduly impacting the jury’s verdict.

Skilled Personal Injury Lawyers Serving Eastern Ontario and North Bay

The decision of whether to elect a trial by jury is a strategic consideration and one that should be determined with the input of a skilled civil litigation lawyer.

At Tierney Stauffer LLP, our experienced personal injury lawyers have the advocacy skills and resources to adapt to our changing legal landscape. Though your “day in court” might look a little different during the COVID-19 pandemic, our lawyers are diligently following changes to courtroom protocol and are well-positioned to tackle your personal injury claim in court.

We recognize that no two claims are the same, which is why we give each client the personalized attention needed to bring about the best possible resolution. Call us at 1-888-799-8057 or contact us online to set up a free consultation with one of our experienced personal injury lawyers.


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