On August 25, 2021 the Ontario Superior Court of Justice issued a ruling that individuals who are not vaccinated for COVID-19 will not be eligible to sit on the jury for an upcoming murder trial. Though the particular circumstances of individuals serving jury duty present different issues and risks than most other contexts, this ruling does provide some helpful insights for organizations and employers currently implementing a vaccine policy.
Under Ontario’s Juries Act, a person is ineligible for jury duty “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.”
In this ruling, Justice Phillips found that unvaccinated individuals could not reasonably be accommodated to serve jury duty. The ruling noted that we are currently entering the fourth wave, which is dominated by the highly transmissible Delta variant, and noted that scientific data continues to accumulate in support of the conclusion that the best available method to reduce the risk of transmission and the development of serious illness (or worse) is vaccination.
The ruling concluded that unvaccinated individuals are physically unable to serve jury duty, stating:
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.
The ruling reviewed three options that it considered to accommodate unvaccinated jurors, then outlined why it concluded that each option was not sufficient. The three options considered were:
- Other protective methods (masks, distancing, plexiglass, etc.); and
- Simply permitting unvaccinated and vaccinated to mix, as this is done in other contexts and jury duty should be no different.
Regarding testing, the ruling emphasized that it was essential that all members of the jury attend court for every day of hearing. Justice Phillips expressed the view that requiring testing of unvaccinated jurors at regular intervals or upon the appearance of symptoms would likely cause persistent and meaningful delay. Moreover, vaccinated individuals would likely want to get tested in the event that an unvaccinated person presented as symptomatic, further exacerbating likely delays.
Regarding other protective measures, the ruling concluded that despite the fact that the trial would be conducted in a special courtroom with plexiglass and other pandemic-related safety measures in place, these measures were insufficient for two main reasons.
First, Justice Phillips noted that this was not his first jury trial during the pandemic, and in his experience “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.” He had observed jurors lean in to whisper to each other, linger to hold the door for the person behind them, and make all manner of inadvertent transgressions to physical distancing rules.
Second, Justice Phillips noted that available science makes clear that vaccination is the superior approach to minimizing risk of Covid-19 illness on both an individual and collective basis. In his view, it was not acceptable to adopt any method other than the best one, given that COVID-19 is potentially fatal and that other jurors are required by law to attend for jury duty.
Third, the ruling acknowledged that in some other contexts, unvaccinated individuals can be accommodated. As an example, the ruling noted that students are permitted to attend school even when they are unvaccinated for medical or conscience-based reasons. The ruling found that this decision is based on a cost-benefit analysis. The benefit of having every child in school outweighs the low risk of a rubella or measles outbreak (low because the vast majority of students are vaccinated, providing herd immunity).
The ruling concluded that applying cost-benefit analyses from other vaccinations to COVID-19 was “apples to oranges thinking.” COVID-19 is now spreading in a significant and uncontrolled manner. It continues to qualify as a global pandemic and is causing substantial harm. Accordingly, Justice Phillips concluded that in these circumstances “the cost-benefit analysis breaks the other way.”
The ruling also addressed privacy concerns, since Justice Phillips intended to ask each prospective juror about their vaccination status. The ruling noted that privacy exists on a sliding scale, with some information entitled to greater privacy than others. Justice Phillips noted that unlike seeking mental health services or a sexually transmitted disease, vaccination is not a potentially stigmatizing medical procedure.
However, Justice Phillips acknowledged that an individual may feel that their reasons for choosing not to vaccinate are potentially stigmatizing, since the 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.
However, Justice Phillips concluded that since he would only be asking a person whether they had received the shot, not why not, there was no privacy issue in this context. As some people cannot be vaccinated for medical reasons, jurors who are not vaccinated would have no reason for concern about potentially stigmatizing information.
While the context of jury duty is different than most environments, as outlined above this decision provides several arguments in support of vaccination requirements that may be helpful to employers or organizations wishing to implement such a policy. This ruling also provides insight into the (limited) privacy protection afforded to an individual’s vaccination status.
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