On August 25, 2021, in anticipation of a multi-week judge and jury trial scheduled to commence on September 7, 2021, Justice Phillips ruled that only vaccinated individuals will be permitted to serve on the jury and those who are not vaccinated would be excused from duty. Justice Phillips relied on s. 4 of the Juries Act, R.S.O. 1990, c.J.3, which provides that a person is ineligible to serve if they are 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.
After considering several options, the judge concluded that the unvaccinated could not be reasonably be accommodated. In particular, he stated that, “Any upside in accommodating an unvaccinated juror is outweighed by the downside of exposing the remaining jurors to risk of physical harm as we try to make this fourth wave the last one.”
In coming to his decision, Justice Phillips commented on the issue of privacy, since it was his intention to ask every juror whether they had been vaccinated. He noted that the court often hears about the health concerns of potential jurors who seek to be excused but that it is unusual for a judge to proactively seek health information.
He noted that “the law understands privacy to exist on something of a sliding scale” and some things are more private than others. For example, core biographical information invokes a higher privacy interest than a trash bag left at the curb. In his view, whether a person has been vaccinated with the COVID-19 vaccination sits at the lower end of the spectrum. He noted that the vaccine is not a potentially stigmatizing procedure, evidenced by the fact that vaccination centers were set up in gymnasiums and other non-private areas.
Justice Phillips acknowledged that the real privacy concern would lie in the reasons why someone is not vaccinated, whether that is due to personal choice, medical disability or creed. In his view, this concern did not arise because he intended to ask potential jurors only if they are vaccinated, not why they are not.
While the selection of 12 individuals who will have to serve together for several weeks is not likely to be analogous to many situations in terms of risk, Justice Phillips’ comments regarding the privacy interest in one’s vaccination status versus their reasons for not being vaccinated are certainly worth noting as many organizations, institutions and business are considering whether to implement mandatory vaccine policies and/or require proof of vaccination. His decision not to accommodate the non-vaccinated in light of the high risk posed to other jury members may also provide guidance when making the decision in other contexts.
Both elements, individual privacy interests and the duty to accommodate, must be carefully considered in each context in which mandatory vaccines will be implemented. Further, each requires an assessment of the real risk to health and safety in the specific circumstances balanced against the prospect of less onerous or intrusive precautionary measures.