Action Committee on Court Operations in Response to COVID-19 - main content
In-Trial Criminal Jury Proceedings
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A Statement from the Action Committee
Our Committee exists to support Canada's courts as they work to protect the health and safety of all court users in the COVID-19 context while upholding the fundamental values of our justice system. These mutually sustaining commitments guide all of our efforts.
NOTICE: This document highlights best practices when the epidemiological situation and relevant risk assessments call for enhanced public health measures to control the spread of COVID-19 in a court environment. Please contact local public health authorities for current requirements, which may differ from the practices outlined in this document, and your local Occupational Health and Safety regulator for current guidance specific to the workplace.
The Action Committee on Court Operations in Response to COVID-19 has released this Tip Sheet to help guide safe court operations in the context of the pandemic.
This Tip Sheet is informed by Principles and Perspectives drawn from health and safety experts, the judiciary, governments and courts administrators - each motivated by a shared responsibility to protect the health and safety of court users and personnel in planning for the resumption or continuation of in-court operations.
It applies a phased method of risk identification and risk mitigation recommended by the Public Health Agency of Canada, and by the Action Committee in its Orienting Principles on Safe and Accessible Courts. This method involves surveying the various elements of court operations, identifying risks for COVID-19 transmission, and implementing mitigation strategies according to a hierarchy of controls. Elimination and substitution are the starting points of this hierarchy, complemented by engineering controls, administrative controls, and the use of personal protective equipment (PPE) and masks, as appropriate, each of which combine to form an integrated and thorough approach to protecting health and safety.
Process Survey and Risk Identification: In-trial Jury Proceedings
The operation of criminal jury processes differs by jurisdiction, location, and court facility. Common elements of jury proceedings that occur during the conduct of a criminal trial are summarized below, in order to help define risks and inform appropriate control measures. A more detailed account of these elements is available in the Action Committee’s Phases and Steps of a Criminal Jury Trial.
Note: While this Tip Sheet was developed to identify and mitigate risks that arise at each phase of a criminal jury proceeding, it (and others in the series) could be applied or adapted to other trial participants. Witnesses, for example, share some characteristics with jurors: they are required to attend at various points in a trial; their movements in and out of the courtroom are similarly prescribed; and they may also require safe spaces in which to wait, either individually or accompanied by a support person, while their physical presence is not needed in the courtroom.
Elements of the process
- Sitting in the jury stand - Jurors sit together in a jury stand. Within the jury stand, chairs are usually close together. The jury will remain in the jury stand for most of the time the court is in session. The proximity of the jury stand to other courtroom elements and individuals varies by setting.
- Courtroom configuration - Other individuals in the courtroom include the judge, court clerk(s), court recorder, counsel, and the audience. Security staff, interpreters, and additional personnel may also be situated at various locations.
- Jury instructions - In instructions to the jury, the judge will specify the length of each sitting, as well as the time at which breaks will be taken. At the opening of a trial, the jury will be directed to the jury room and asked to decide upon the selection of a foreperson. When moving between the jury room and jury stand, both at this point and other stages during the trial, jurors may carry some personal effects with them.
- Exclusion of the jury - The judge may order the exclusion of the jury from the courtroom in certain circumstances. During this exclusion, jurors will be directed to the jury room by a court services officer, where they will remain together until the judge calls them back into the courtroom.
- Presentation and hearing of evidence - Witnesses give evidence from the witness stand by answering questions posed by counsel. Counsel may “approach” witnesses or the jury in order to show them exhibits or other material, and may also pass exhibits to the court clerk or approach the judge to speak with them privately. Exhibits can include documents, physical objects or photographs, or other materials (such as enlarged images or diagrams). As evidence is presented, jurors may view these materials from afar, or on display screens, or may have opportunities to “interact” with and physically inspect exhibits. Jurors sometimes also use notepads and document binders.
- Discharge of jurors - During the course of a trial, the judge may direct that one or more jurors be discharged, which results in them being removed immediately from the jury. This can arise when a juror falls ill or faces other intervening circumstances, or where circumstances arise that disqualify the juror. Alternate jurors, if applicable, will also be discharged before the end of the trial unless they have been called upon to replace a juror. Discharged jurors will exit the courthouse and typically arrange for their own transportation home.
Hazards related to this process
- Persons attending in-trial jury proceedings may transmit COVID-19 to other persons involved in the process due to previous exposure in their homes or in public
- The court facility itself could be a location for contraction and transmission to the outside community due to:
- Poorly ventilated and crowded places
- Prolonged close contact and close-range conversations between jurors, counsel, the judge, court staff and other individuals within the courtroom, the jury stand, the jury room, during the hearing of evidence, and during movement between locations
- Contact with common surfaces in the courtroom, within the jury stand, in the jury room, or during movement between locations
Note: For guidance on jury sequestering, deliberation and release at the end of trial, see the Tip Sheet on Jury Sequestering, Deliberation, and Release. For guidance on the movement of jury members in and out of the courthouse, including during breaks in trial proceedings, see the Tip Sheet on Jury Arrival and Departure from the Courthouse.
Accounting for each element of in-trial jury proceedings, the following control measures could be introduced to reduce the risks of exposure to and transmission of COVID-19 and to help protect the health and safety of court users and personnel.
In the exercise of due diligence and responsible stewardship, control measures are likely to evolve with knowledge related to the risks posed by COVID-19 and the usefulness of such measures to mitigate those risks.
Elimination and Substitution
- Consider the use of secure remote transmission such as CCTV to enable viewing of the trial by media, members of the public, family members of victims or the accused, and others in order to limit the number of persons in the courtroom
- Maintain at least 2 metres (6 feet) distance between people whenever possible, for example by:
- Reconfiguring courtroom elements to enable distancing, including expansion of the jury stand or reassignment of jury seating to courtroom space ordinarily reserved for the audience
- Rearranging the layout of desks, lecterns, chairs and other objects
- Blocking seating in the audience
- Employing visual markers or cues to control the movement of common procedures, such as the display of material to the witness or jury or the movement of jurors between the jury room and jury stand
- Reconfiguring seating in the jury room, or using an alternate space for the jury room when current facilities are too small.
- Consider using an alternate facility, such as a conference centre, sports complex or arena, or large community centre where available court spaces are insufficient for physical distancing.
- Ensure the availability of a dedicated space within the court facility to isolate and care for any individuals who become ill
- Ensure that ventilation systems of indoor spaces are operating properly, and implement physical barriers as added protection where possible to help protect court personnel and court users, as described in the Action Committee’s Orienting Principles on Safe and Accessible Courts. In particular, the installation of transparent physical barriers could be considered, if it is safe to do so, between spaces within and around the jury stand.
In the context of in-trial criminal jury proceedings, examples of administrative controls may include:
- Establishing a protocol for jury movement in and out of the jury box, and between the jury box and jury room. Similar practices could be adapted for witnesses as they move in and out of the courtroom, either individually or as a group, with or without accompanying individuals (e.g., victim support workers)
- Establishing a protocol for the positioning of counsel when approaching witnesses, jurors, or the judge, and using visual cues such as floor markers
- Posting signs in the courtroom and jury room to promote physical distancing, respiratory etiquette and proper hygiene practices
- Using the presiding judge’s opening statement as an opportunity to highlight health and safety protocols, and to identify courtroom personnel available to answer questions and provide ongoing guidance
- Training courtroom personnel, especially those with direct responsibility for jury support, to provide ongoing health and safety guidance to jurors or others, and to isolate and safely assist any person who becomes ill
- Considering introducing technological alternatives to the physical inspection of exhibits, documents, or other material, for example using magnified computer or video screens, as feasible and subject to applicable rules of evidence
- Considering providing catered breaks and meals for jurors in order to avoid contamination risks associated with jurors accessing public spaces during the trial. Alternatively, encouraging jurors to bring their own food and drinks, while avoiding sharing
In the court setting generally, additional examples of administrative controls may include procedures, policies or protocols relating to screening, contact tracing, cleaning and disinfecting, and other measures. For more information, see the Action Committee’s Orienting Principles on Safe and Accessible Courts and Guidance on Protecting Court Personnel and Court Users and General Practices for Cleaning and Disinfecting.
Masks and Personal Protective Equipment (PPE)
- Promote the wearing of well-constructed, well-fitting masks suitable to the setting and intended activities, as recommended by public health authorities
- Provide well-constructed, well-fitting disposable masks to all jurors, court users and personnel, and clear instructions on how to safely and properly put on, wear and remove masks
For additional guidance on the use of masks and PPE in the court setting, see the Action Committee’s Orienting Principles on Safe and Accessible Courts.