Bring back courthouse COVID protocols
Like patients and care home residents, jurors are in a potentially risky situation out of necessity
The man sat next to me on the bench, so close our arms touched.
For two years I have followed COVID-19 protocols. I wear a mask. I physically distance. I use hand sanitizer. I am vaccinated and boosted.
On Monday I felt as though I was in the most unsafe situation I have experienced since the pandemic began — jury selection at the John Sopinka Courthouse.
A jury pool of 200 people crammed into Courtroom 600 to begin the hours-long process of selecting 12 jurors and two alternates.
“I’m sorry, but they told us to sit shoulder to shoulder,” said the man squeezed against me.
He was masked and seemed uncomfortable with the arrangement.
About one-third of people in the room were unmasked. Those who did wear a mask generally took it off when it was their turn to address Justice Toni Skarica.
This was my first glimpse of a post-protocol jury trial. It seemed like an outbreak waiting to happen.
It was jury selection for the upcoming trial of Richard Taylor, who faces two counts of first-degree murder for the deaths of Carla and Alan Rutherford on July 9, 2018.
I chose to be in that courtroom. I chose to do my job.
Jury pool members have no choice. They are summoned to court and the law says they must attend. Conscription and jury duty are the only circumstances under which Canadians are forced to serve their country.
So those called had no choice but to sit shoulder-to-shoulder with strangers to fulfil their obligation.
On an ethical level, it is troubling. Potential jurors are being forced into a risky situation.
Gillian Johnson, 70, certainly felt that way a few weeks ago when she was called for jury duty as the sixth wave of COVID was rising. Her summons was for a different trial being heard by Justice Skarica, involving the shooting of a young boy.
She spent two days at the courthouse being told to “squeeze together.”
“I thought this is wrong and it shouldn’t have been happening,” she says. “But I felt powerless to say anything.”
Johnson wore her mask the entire time. She is triple vaxxed.
She estimates half of those around her were unmasked, some court staff among them.
Ultimately, Johnson was not selected for the jury.
One day later, she tested positive for COVID. Then her husband did as well.
She feels certain she caught the virus at the courthouse because she hadn’t been anywhere else.
“I feel resentful,” she says.
She was scheduled to have her second booster the day after she tested positive. She had to cancel and won’t be eligible again for three months.
In a society where jury duty ranks below giving blood as a desirable way to contribute, according to a poll by the Canadian Juries Commission, jurors need to be treated better.
Like hospitals and long-term-care homes, courthouses should still be mandated to enforce COVID protocols, says Mark Farrant, founder of the commission. Like patients and residents, jurors are in a potentially risky situation out of necessity.
Farrant has long advocated for better mental-health care for jurors affected by the trials they serve on. Now, he says, the justice system also needs to consider jurors’ physical health.
The neglect leads to a negative perception of jury duty, prompting more people to shirk the responsibility.
And what of the practical impact of removing COVID protections from courthouses?
What if jurors — or a judge or a lawyer — get COVID midtrial? The justice system is already experiencing unprecedented delays. A COVID outbreak would only make it worse.
For much of the pandemic, measures have been taken in Ontario’s courthouses to mitigate exposure. The most obvious being moving as many proceedings as possibly to Zoom.
I have covered jury trials in person since the virus hit. All jury pool members had to be fully vaccinated. Screening was done for everyone entering the courthouse. Jury selection was done in small groups, a process which took longer but was safer. Everyone had to be masked. Plexiglas barriers surrounded court staff, and the prisoner and witness boxes.
Everyone was physically distanced. Cleaners sat in the courtroom to wipe down high-touch surfaces. Jurors were outfitted with full face shields.
Farrant says feedback from jurors at the height of the protocols was positive. It made them feel safer and more willing to serve.
Then Ontario lifted most of its protocols and the John Sopinka Courthouse followed suit.
Visitors to the courthouse are no longer screened. Masks are optional. The Plexiglas barriers — which make it incredibly difficult to hear, but may protect against the virus — “will be removed gradually over several months,” according to the Superior Court of Justice website. There are no seats marked off for physical distancing. There were no cleaners in the courtroom for jury selection.
And more cases are coming back to be heard in person, rather than by Zoom.
Even the Ministry of the Attorney General doesn’t seem to know if its own protocol that all jurors must be vaccinated is still in effect. The Spec asked, but after two days was told by the ministry that it was still working on an answer.
Meanwhile, public-health advice continues to be to wear a mask and distance in crowded indoor spaces.
Next week is National Jury Duty Appreciation Week. We should acknowledge it by bringing back COVID protocols in courthouses to protect our jurors.