On August 8, 2021, BC Supreme Court Justice Geoffrey B. Gomery slammed the door on violating an individual’s right to medical privacy.
“There is no good reason to ask the question and I therefore declined to put it to panellists,” Justice Gomery ruled.
A Crown prosecutor wanted Justice Gomery to exclude any potential jurors who were not vaccinated or who refused to allow the Crown to violate their right to privacy.
From the decision:
Objectively, the risk to jurors, if some of them are unvaccinated is very low. If panellists had expressed concerns about Covid exposure, I would have excused them in any event.
The proposed question as to vaccination status trenches on a private and personal sphere. Panellists might well have reasons to wish not to discuss their vaccination status in public in the intimidating environment of a courtroom. Some might be intimidated by the question itself. Offering an assurance that they need not reply would mitigate, but not eliminate, the pressure.
This is not in itself a reason not to put the question – participants in the justice system are sometimes required to disclose personal and private information in open court – but the question is one that should only be required if circumstances demand it.
I am not persuaded that the question would provide information that I could properly make use of in deciding whether to stand aside or excuse a juror. The power to stand aside a juror is granted under s. 633 of the Code “for reasons of personal hardship, maintaining public confidence in the administration of justice or any other reasonable cause”.
The participation of an unvaccinated juror – or one who will not say that he or she has been fully vaccinated – does not engage a question of personal hardship of the juror in question. Given our experience to date of jury trials with unvaccinated jurors, as I have described, I do not think the participation of unvaccinated jurors risks public confidence in the administration of justice. Nor am I persuaded that a failure to provide an assurance of fully vaccinated status constitutes “other reasonable cause”, at least at this time under the health and social conditions now prevailing.
Although the Charter does not contain the word “privacy”, and does not include a freestanding “right to privacy,” privacy interests have been recognized to be at the root of some of the protections granted by the Charter.
The Supreme Court of Canada has decided that the source of the section 8 right is that citizens have a reasonable expectation of privacy in a free and democratic society.
The liberty right in section 7 protects an individual’s privacy when making the kinds of fundamental life choices which are at the core of individual dignity and independence, so that they can be made without interference from the state.
The right to privacy and to maintain the privacy of information about ourselves has been recognized as an essential aspect of liberty in a free and democratic society.
Justice Gomery’s ruling in favour of our right to privacy is extremely promising in an age where courts routinely rule COVID-19 trumps our rights in almost every other area of life.
Now, if we can just find a judge, anywhere in Canada, willing to rule in favour of our Charter Section 2 right to freedom of expression and our right to freedom of religion, the Charter of Rights and Freedoms might actually be worth the paper it’s printed on.