Update: Since publication of this story, the Court of Queen’s Bench has revised and clarified its requirement for prospective jurors to provide proof of vaccination. This story has been updated accordingly.
An Alberta Court of Queen’s Bench policy requiring anyone asked to serve on a jury to provide proof of two or more vaccinations has been quietly posted online.
“The Court of Queen’s Bench is taking precautions to protect your health during the jury selection and trial process to minimize the risk of transmission of COVID-19,” the policy states.
“You will be required to produce your Alberta-issued COVID-19 vaccine record with the QR code.”
A spokesperson for Alberta Justice could not say when the policy was posted.
No formal notice was given to counsel about the new directive, found on the court’s website on a page with the title “Jury.”
The policy came as a surprise to Edmonton defence lawyer Rory Ziv, who learned about it while attending jury selection last Thursday.
In part because no notice had been given to counsel, Ziv sought a mistrial, arguing the jury selection process was tainted and his client’s constitutional rights violated.
Justice John Little denied the request, made out of the presence of the prospective jurors.
The court has an obligation to protect the public, including those called for jury duty, Little said.
“In my view it is a reasonable restriction on your client’s right to be tried by a jury of his peers, a right to be tried by a jury of his vaccinated peers which happens to be a larger portion of the population in any event,” he said.
After the jury was selected, Little again addressed the issue.
“You know that one of the protocols this morning was that you were screened for a QR code or some sort of proof of vaccination,” Little said.
“So, you can take some comfort in knowing that the people you are sitting with have been vaccinated.”
‘We shouldn’t have a two-tier society’
Before the sexual-assault jury trial began on Monday, Ziv made a further application to the trial judge for an adjournment, arguing once again about the lack of formal notice and his belief that his client’s constitutional rights had been violated.
In response, the Crown argued there was no evidence to suggest the vaccinated jurors were not representative of the accused’s peers.
The Crown added that given the ever-changing state of the pandemic, extensive notice to lawyers “is not reasonable.”
In an interview with CBC News, Ziv pointed out he is personally triple-vaccinated and is in no way anti-vaccine.
“In our society, we shouldn’t have a two-tier society, that is, where some people can participate in our institutions and others cannot participate,” Ziv said. “I think that that’s fundamentally problematic and I am against that.”
The trial judge dismissed Ziv’s application.
In a written decision issued Tuesday, Justice Avril Inglis found there was no prejudice to the accused by selecting an all-vaccinated jury and that there had been no breach of the accused’s charter rights.
The jury was sworn in and the jury trial is underway.
“Of course I’m disappointed with the decision,” Ziv said. “I’m very concerned about what I like to term ‘justice in the dark.'”
Ziv said he’ll respect the decision.
“If I don’t like it or my client doesn’t like it, there are avenues to appeal,” Ziv said.
Last fall, the chief justice of Ontario Superior Court of Justice ordered that only fully-vaccinated Ontarians can serve on juries. The chief justice of the Court of Queen’s Bench of Alberta has not issued any similar order.
Most recently, on Jan. 26, the court announced that jury trials will “proceed with enhanced COVID-19 measures in place to mitigate any risk to public health.”
On February 3, executive legal counsel Darryl Ruether told CBC News that under the revised approach, there is no blanket policy to summarily dismiss anyone unable to provide a QR code. He said that’s based on their interpretation of the Alberta Jury Act.
“In our opinion, the decision has to fall within the discretion of the justice making the jury selection,” Ruether said. “They are asked to attend in a separate, socially-distanced room. They’re given KN95 masks and then the justice conducting the jury selection will decide whether or not they are eligible to serve on the jury.”
Over two days of jury selection in Edmonton last week, the judge dismissed prospective jurors who did not provide proof of vaccination.
Ruether said that the QR code requirement stemmed from a recommendation made in early January by the court’s pandemic committee. Chief Justice Mary Moreau subsequently met with representatives of the Edmonton and Calgary criminal bar in mid-January to advise them of the court’s intention to ask prospective jurors for vaccination information.
A member of the Criminal Trial Lawyers Association told CBC News the information was shared electronically prior to it taking effect.
The requirement is now included on all jury summonses, Reuther said. It is also reflected on the Court of Queen’s Bench website.
Janice Johnston is an award-winning journalist in Edmonton who has covered the courts and crime for more than two decades. You can reach her at firstname.lastname@example.org or on Twitter at @cbcjanjohnston
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