Defence lawyer praises judge's decision to dismiss non-vaccinated jurors

The defence lawyer in an upcoming first-degree murder trial is applauding the judge's decision to only allow jurors who've said they've been fully vaccinated against COVID-19.

Murder trial for Martin Frampton is set to begin Sept. 7

An upcoming first-degree murder trial at the Ottawa courthouse will attempt to exclude any jury members who haven't been vaccinated against COVID-19 — a ruling the defence lawyer in the trial is totally in favour of. (Trevor Pritchard/CBC)

The defence lawyer in an upcoming first-degree murder trial in Ottawa is applauding the judge's decision to only allow jurors who've said they've been fully vaccinated against COVID-19.

The trial of Martin Frampton is set to begin next month. He's facing one count of first-degree murder in the death of Kenneth Ammaklak, who was found dead on Donald Street in 2019.

In a pre-trial ruling, Justice Kevin Phillips said he'd ask all potential jurors if they are vaccinated and would dismiss those who said they're not. He will not ask for proof of vaccination.

Phillips said the fourth wave of COVID-19 and the spread of the contagious delta variant pose too big a threat, and that if someone were to be exposed to the virus it could potentially delay the proceedings. 

"It's an excellent idea," said James Harbic, Frampton's defence lawyer.

Harbic said courts have been struggling to minimize exposure to COVID-19, and he has no concern about potentially excluding certain jury members.

"The defence wants intelligent people on the jury [that] understand complicated notions like the presumption of innocence, concepts like proof beyond a reasonable doubt," Harbic said.

"In my own [opinion] the great majority of people who are not getting their double vaccination do not trust science ... I think [they] lack a considerable amount of sophistication, and also lack a certain amount of social responsibility to other members of the community. So they're not the kind of jurors I would want on my jury anyway."

There are many reasons why someone may not be vaccinated, from severe allergies and needle-related phobias to concerns about side effects and problems getting access to a shot.

Justice Phillips' ruling was concerned with ensuring the safety of the trial's participants and avoiding delays and did not touch upon the legal expertise of vaccinated or unvaccinated jurors.

Defence lawyer James Harbic said it's his opinion that any jurors who'd disclose they haven't been vaccinated against COVID-19 likely lack the 'sophistication' to understand the concepts of justice associated with a murder trial. (Laurie Fagan/CBC)

Legal experts weigh in

Carissima Mathen, a law professor at the University of Ottawa, said she understands why a judge would make such a decision, given that Canadians are legally required to serve as jurors when they get the call.

"We're imposing that duty on these members of the jury, and we should do what we can to protect them," Mathen said.

"The courts are trying to balance the really important benefits of being in court, especially in a criminal context, versus the risks of the pandemic."

Mathen thinks the ruling could hint at similar decisions to come.

In his ruling, Phillips also addressed privacy concerns, stating he felt asking jurors to disclose their vaccination status was on the "low end of the privacy spectrum."

That assessment of the privacy risk is one that Jennifer Quaid, an associate law professor and a vice-dean of research at the University of Ottawa, agrees with.

"The privacy interest in [disclosing] whether or not you're vaccinated is small. That's different from being forced to provide the rationale for why you're not vaccinated," said Quaid.

"To the extent it's a yes or no answer ... this doesn't reveal a lot about you. Or it certainly doesn't reveal a lot about your health to say, 'yes or no, I got a vaccine.'"

Frampton's first-degree murder trial is slated to get underway Sept. 7.

With files from Matthew Kupfer and Trevor Pritchard