Ontario Courts: Get Vaccinated or You’re a Risk To The Public

law

The Ontario Courts last week may have thrown a monkey wrench into Doug Ford’s reluctance to mandate vaccinations for front line staff in Ontario. In an 18-paragraph decision the court outlined how they will be dealing with unvaccinated jurors. Although this motion didn’t specifically deal with vulnerable populations, the motion should be a clear indication on how the courts will rule when dealing with unvaccinated educational workers in the classroom especially those who deal with disabled students who have vulnerabilities.  Justice Phillips stated:

[9] I cannot see how an unvaccinated juror could be reasonably accommodated. I have considered three ideas before coming to that conclusion. First, that testing of the unvaccinated juror could ensure that s/he does not carry the virus. Second, that protection methods other than vaccination can be relied upon to ensure everyone’s safety. Third, that we allow the unvaccinated to mix in with the vaccinated in many other contexts without difficulty and that jury service should be no different.

[10] On the first point, I reiterate that a juror must be able to attend court every sitting day without interruption. Testing the unvaccinated juror every day, or at some interval, or at least when possible symptoms emerge, all while keeping the trial moving forward on schedule strikes me as practically impossible. For that matter, I would expect the vaccinated jurors would also want to be tested if their unvaccinated colleague is manifesting symptoms as vaccines are never one hundred per cent effective. This will all likely cause persistent and meaningful delay. We will spend more time waiting for test results than hearing evidence.

[11] Moving to the prophylactic measures approach, I note that Ottawa has a special courtroom set up for jury trials during the pandemic. The jury room and jury box are divided by plexiglass, everyone wears masks, there is hand sanitizer everywhere and care is taken to keep physical distance.

[12] I have two issues with relying on this sort of thing to address the problem. First, plexiglass and the like does not always work as it is supposed to. This is not my first jury trial during the pandemic. I did a long trial in 2020 in the same special courtroom. What I found is that human nature being what it is, people often slip up on the distancing and related rules, especially as they get familiar with each other and their surroundings. I repeatedly saw jurors do things like leaning in to make comments to each other or to assist one another in finding something in a photobook. I actually had to tell a particular gentleman to stop holding the door for the person exiting after him because it caused them to come too close. I could give other examples but I think the point is made.

[13] A second, and more compelling, reason to reject the non-vaccination measures is that they are simply not the best way. The available science makes clear that vaccination is the superior approach to minimizing risk of Covid-19 illness both per individual and on a collective basis. The stakes are high. Covid-19 is potentially fatal. In endeavouring to minimize risk of transmission, why would we opt to use a method that is not the best method? Surely, the reputation of the administration of justice would be compromised if a court declined to adopt the optimal approach toward preserving the health of those compelled by law to participate in the judicial process.

[14] Finally, I am aware that in many contexts, accommodations are made for unvaccinated persons. For instance, a student may nonetheless attend school even though they are unvaccinated as a result of medical or conscience-based reasons. This approach is the result of a cost-benefit analysis. It is thought that keeping every kid in school, even with medical limitations, is beneficial. Likewise, we see value in allowing people to enjoy their own views in respect to science and medicine. Those values are benefits deemed to outweigh the downside – the risk that certain diseases will manifest themselves. In my view, however, using this sort of reasoning in the Covid-19 context is apples to oranges thinking. With a relatively small cohort of students unvaccinated, the risk of an outbreak of diphtheria, rubella, polio and the like is exceedingly low. Those illnesses have effectively been run out of town such that accommodating the unvaccinated is largely inconsequential. The same cannot be presently said for Covid-19 which is now endemic and spreading in a significant and uncontrolled manner. It continues to qualify as a global pandemic and is causing substantial harm. As a result, in my judgment, the cost-benefit analysis breaks the other way when it comes to Covid-19 vaccination and jury duty. 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.

On the issue of the privacy rights of the unvaccinated, Justice Phillips stated (emphasis added):

[15] Before closing, I should make clear that I have considered the issue of privacy. It is admittedly unusual for a judge to directly ask a prospective juror about particular information related to their health. While we are told about all kinds of health limitations from those who wish to be excused, we typically do not proactively inquire on the subject in any specific sense.

[16] It is important to consider that the law understands privacy to exist on something of a sliding scale. Some things are more private than others. One’s core biographical information, for instance, carries higher privacy concerns than the contents of a trash bag one has left at the curb. In my view, the privacy interest inherent in whether a person has or has not been vaccinated against Covid-19 would sit toward the low end of the privacy spectrum. Unlike, say, a sexually transmitted disease or the accessing of mental health services, a Covid-19 vaccination is not a potentially stigmatizing medical procedure. It is not surprising that many vaccination centers were set up in gymnasia or other non-private open spaces. It even became fashionable for “influencers” and others to post photos on social media of themselves getting the jab.

[17] I think the real privacy interest lies in the desire an unvaccinated person might have to avoid having to reveal or explain a considered decision to forego the shot. Covid-19 vaccination has been quite well received by the broader public and those who have decided not to get onboard are sometimes portrayed as contrarian or even irrational. This is not a problem, however, for the simple reason that I will be asking only whether a candidate has been vaccinated, not why not. Everybody knows that some people cannot be vaccinated due to a medical reason. No one would fault or look askance at anyone in such a circumstance. When a potential juror answers my question about whether s/he has been vaccinated in the negative, no one will know whether it is as a result of a medical excuse or another reason. As such, the prospective juror’s conscience-based decision-making process is not revealed or inquired into. A person who has decided to avoid vaccination is indistinguishable from those with medical excuses and cannot therefore have any concern about a negative reaction from me or anyone else.

Basically, what this means for students with disabilities is that school boards have a legal obligation to provide the safest environment possible, and that current protective measures as ordered by the province may not be sufficient protection against COVID-19. The courts have provided guidance on how to deal with the privacy implications of all of this.

As school boards are set to put into place the province’s vaccination policies, which fall short of mandatory vaccinations rather opting for “educational” programming of those who refuse to get vaccinated, those same policies could end up being a legal liability for the boards separate from the province. If you combine Justice Phillips decision with the arguments I made in a recent post from a precedent setting case last year regarding the educational and accommodation rights of a child through COVID, one would expect the courts to come down pretty hard on boards or unions that challenge any mandatory vaccination policy in law in favour of a safe learning environment.

The courts have also been clear when looking at accommodations of students within the education system throughout COVID that the child and vulnerable family members are set as a priority when ruling on such accommodations. From the precedent court decision set last year regarding accommodations To quote Zinati v. Spence:

[27] c. When deciding what educational plan is appropriate for a child, the court must ask the familiar question – what is in the best interest of this child? Relevant factors to consider in determining the education plan in the best interests of the child include, but are not limited to:

  i.      The risk of exposure to COVID-19 that the child will face if she or he is in school, or is not in school;

 ii.      Whether the child, or a member of the child’s family, is at increased risk from COVID-19 as a result of health conditions or other risk factors;

 iii.      The risk the child faces to their mental health, social development, academic development or psychological well-being from learning online;

iv.      Any proposed or planned measures to alleviate any of the risks noted above;

v.      The child’s wishes, if they can be reasonably ascertained; and

 vi.      The ability of the parent or parents with whom the child will be residing during school days to support online learning, including competing demands of the parent or parents’ work, or caregiving responsibilities, or other demands.

The courts have made clear that public safety and a right to a safe education can be balanced with the rights to privacy of unvaccinated staff.  I would also go one step further to suggest that not ensuring staff are vaccinated especially with the presence of children with disabilities and/or vulnerable household members would force these families towards a virtual learning environment which can be difficult if not impossible for some children with disabilities. It would not only be contrary to what the courts have been saying on this issue, but also contrary to the Ontario Human Rights Code.  Section one of the Ontario Human Rights Code states:

1 Every person has a right to equal treatment with respect to services, goods and facilities, without discrimination because of race, ancestry, place of origin, colour, ethnic origin, citizenship, creed, sex, sexual orientation, gender identity, gender expression, age, marital status, family status or disability. R.S.O. 1990, c. H.19, s. 1; 1999, c. 6, s. 28 (1); 2001, c. 32, s. 27 (1); 2005, c. 5, s. 32 (1); 2012, c. 7, s. 1.

So in effect, Ontario’s unwillingness to acknowledge the rights of the vulnerable during this pandemic may end up costing those that follow the provincial guidelines if current policies are not changed to reflect the courts guidance on ensuring a safest environment possible for children and their families while in the educational system.

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