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A Fully Vaccinated Jury
October 07, 2021
A Fully Vaccinated Jury

In a recent Pre-Trial Ruling, The Honourable Justice Kevin B. Phillips ruled that a jury should consist only of those who have been fully vaccinated against COVID-19. In the case of R. v. Frampton, 2021 ONSC 5733, the accused was charged with first degree murder and trial was to begin on September 7, 2021. The judge indicated that including an unvaccinated person on the jury introduces a real risk, enough that the trial could be compromised, and thus such a person is physically unable to perform the role of juror.

Further, the judge indicated that he does not see how an unvaccinated juror could be accommodated. Firstly, testing of an unvaccinated juror daily or at some interval is impossible. Secondly, other protection methods (masks, plexiglass, etc.) are not reliable as jurors get more comfortable with one another. Lastly, although we allow vaccinated and unvaccinated individuals to mix in other contexts, the risks to the jury outweigh the upside of accommodating unvaccinated jurors.

The judge also considered privacy issues. He admitted that it is unusual for a judge to directly ask a prospective juror about particular information related to their health. However, he said that some things are more private than others. The privacy interest inherent in whether a person has been vaccinated is on the low end of the privacy spectrum, unlike a sexually transmitted disease, which bears with it a more stigmatizing medical procedure. Further, the judge noted that the real privacy issue may lie with the prospective juror not wanting to disclose the reason why he or she did not get the vaccine. To avoid this problem, the judge will be asking only whether a candidate has been vaccinated and not why not.

It will be interesting to see if this trends towards only allowing fully vaccinated people to be in the courtroom in general, not just sitting on juries. We will have to wait and see!

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