Alta. judge says unvaccinated prospective jurors in sex assault trial will be excused

CALGARY -

An Alberta Court of Queen's Bench justice has ruled that prospective jurors in an upcoming sexual assault trial in Calgary will be excused if they're not vaccinated against COVID-19.

Justice N.E. Devlin wrote in his ruling Thursday that allowing unvaccinated people to serve on the jury could unfairly compromise the health of other jurors, court staff and anyone else connected with the trial.

Further, Devlin said an unvaccinated juror could be a distraction to other jurors by causing them to fear for their health, and he said a juror who developed symptoms could scupper the entire proceedings.

A recent decision in Ontario saw an Ottawa judge rule that all jurors participating in a murder trial would need to be fully inoculated with two doses of vaccine.

But a Quebec Superior Court judge ruled earlier this month that a juror did not need to be fully vaccinated against COVID-19 to participate in a Montreal fraud trial, citing privacy concerns and jury representativeness in his ruling.

Devlin, however, wrote that during juror selection for the sexual assault trial in Calgary this week, the “handful” of people who were not fully vaccinated “spanned the age, gender, and ethnic spectrum” and that excusing them would not reduce the jury's representativeness.

“Factually, I am satisfied that vaccination is a safe and highly effective means of preventing the spread of the coronavirus, the development of COVID 19 infections, and severe illness in those who do become infected,” Devlin wrote.

“The public and judicial resources dedicated to a jury trial are both scarce and precious, especially right now. 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.”

A decision from B.C. Supreme Court last month did not allow the Crown to ask jurors questions about their vaccination status, citing privacy.

Devlin wrote that “judicial discretion to safeguard the proper administration of justice is paramount over any provincial privacy legislation.”

He noted that when he asked whether unvaccinated jurors should be excused from serving, neither the Crown nor the accused took a position.

In the Quebec case, Justice Mario Longpre noted that provincial jury law only allows those with mental incapacity or impairment to be exempted.

Longpre wrote that Quebec law, unlike Ontario's, does not permit jurors to be disqualified by reason of physical incapacity “even if it were to be concluded that the fact of not being adequately vaccinated constitutes such an incapacity.”

This report by The Canadian Press was first published Sept. 25, 2021.