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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.
The Action Committee on Court Operations in Response to COVID-19 has released this Tip Sheet to help guide the safe resumption of court operations in Canada.
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 Canadians in planning for the resumption of in-court operations.
It applies a phased method of risk identification and risk mitigation recommended by the Public Health Agency of Canada, and previously released 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. Physical distancing is the starting point of this hierarchy, complemented by engineering controls, administrative controls, and the use of personal protective equipment (PPE) and non-medical masks (NMMs), as appropriate, each of which combine to form an integrated and thorough approach to protecting health and safety.
- This guidance is not exhaustive and is advisory only; it is not intended to replace applicable health and safety laws and regulations, nor does following this guidance ensure compliance with those laws and regulations. Awareness of, and compliance with legal responsibilities must form an integral part of court operations in response to COVID-19. This guidance must be reviewed and adapted by adding good practices and policies to meet local circumstances and needs.
- When putting health and safety measures in place, always consider the hierarchy of controls, continue to evaluate how effective they are, and make changes when needed. Consultation with key stakeholders is also necessary, including workplace health and safety committees.
Process Survey and Risk Identification: Jury Selection
The operation of criminal jury processes differs by jurisdiction, location, and court facility. Common elements of the jury selection process 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
Elements of the process
- Travel to and from courthouse - Persons summoned for jury duty typically arrange for independent travel to and from court, sometimes over the course of several days, to participate in jury selection. This involves movement between their homes, the court facility, and other public spaces (such as public transport).
- Arrival at court and initial processing - Arrival, registration, and assembly at the court facility will likely involve passing through common points of entry; waiting in lines; waiting in public reception areas; use of common facilities; and eventual direction to an assembly room or courtroom.
- Gathering of potential jurors in assembly room - Once transferred to an assembly room, prospective jurors (“panels”) will be seated, ordinarily in close contact with one another in an audience-style format. They may remain in the assembly room for an extended time, until being selected to participate in jury selection in a separate courtroom. Some panellists may be dismissed and asked to return to court on a different day. Others may be permanently dismissed.
- Assignment of potential jurors to courtrooms - Selected panel members are directed to individual courtrooms, where the jury selection process is completed for each trial. This typically involves their remaining in a courtroom for an extended period, together with the presiding judge, court clerk(s), counsel for the crown and the accused person, and possibly other personnel such as sheriffs, victim support officers, and security staff. Criminally accused persons will almost always be present.
- Calling of prospective jurors for questioning - Prospective jurors will be called one at a time to sit in the witness box and answer questions from the presiding judge and counsel. Prior to receiving questions, prospective jurors take an oath or affirmation, which may involve contact with a religious text or close contact with a court officer.
- Deferral, excusal, or elimination - As jurors are selected, they sit together in the jury box. Any prospective juror deferred, excused, or eliminated for cause may depart the court immediately.
- Completion of jury selection - The jury selection process continues until 12 to 14 jurors and alternates are selected to constitute a jury. This may take as little as several hours or as long as several days, during which time prospective jurors continue to sit in the audience and access the public areas of the court facility during breaks. When the 12 to 14 jurors are selected, a court services officer will redirect them to the jury room. The trial may commence immediately, or the jurors may be released and asked to return to the court for a specific trial date.
Hazards related to this process
- Persons attending jury selection 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:
- Closed spaces, crowded and poorly ventilated spaces;
- Multiple points of close contact and close-range conversations between jurors, court staff and other persons, including in waiting areas, passageways, the courtroom and the jury box;
- Potential for physical contact with common or high touch surfaces at all stages, including in the courtroom, the jury box, the witness box, washrooms and other common facilities, and during movement between locations - these surfaces can include doors, elevators, chairs, railings, desks and religious texts for swearing an oath.
- Return of jurors to their homes and communities before attending the trial means they could be exposed to COVID-19 in the interim.
Accounting for each element in the jury selection process, the following control measures could be introduced to reduce risks of COVID-19 transmission and to help protect the health and safety of court users and personnel.
- Consider whether any elements of the jury selection process could be replaced by electronic or remote alternatives that would reduce the number of individuals required to attend the courthouse (see the Tip Sheet on Jury Summons and the Case study on Streamlining processes for jury summons and selection in New Brunswick).
- Maintain at least 2 metres (6 feet) distance between people whenever possible, for example by:
- Staggering arrival times for prospective jurors to alleviate congestion and congregation at building access points and in common areas;
- Introducing electronic alternatives to physical registration (phone apps, digital barcodes and no-contact scanning points, etc.);
- Locating physical registration or other administrative processes in spaces that can accommodate appropriate distancing between persons waiting in line;
- Using markers or barriers to create walking paths;
- Marking floors with distancing cues;
- Blocking seats in waiting areas, assembly rooms, and courtrooms;
- Dispersing prospective jurors in smaller groups, where possible, to different assembly rooms and courtrooms so as to alleviate occupation density;
- Considering alternatives to locating jurors in jury boxes, or reconfiguring jury boxes to allow appropriate distance between seats.
- Consider the possibility of relocating jury selection to alternate facilities that may be better suited to physical distancing requirements, such as conference facilities, arenas and sports complexes, or large community centres. This could be combined with eventual relocation to the courthouse after completing “high volume” stages of the selection process.
- Consider whether secure remote transmission such as CCTV can be used to support physical distancing at any stage of the selection process, such as during delivery of common information or presentations to prospective jurors, or during elements of courtroom activities that do not require in-person interaction between the judge, counsel, and prospective jurors.
- Ensure that ventilation systems of indoor spaces are operating properly. To improve ventilation:
- Open windows and doors for a few minutes at a time during the day as weather permits and provided this does not pose a safety risk;
- Run the heating, ventilation and air conditioning (HVAC) fan continuously at a low speed to increase air movement and filtration;
- Adjust building ventilation systems and air conditioning units to keep rooms cool rather than using powerful portable cooling fans that might increase the spread of COVID-19;
- Limit the use of demand-controlled ventilation; keep the system running at the optimal setting;
- Increase filtration efficiency to the highest level appropriate for the ventilation system. Clean or change air filters regularly as recommended by the manufacturer;
- Consult an HVAC professional to ensure the HVAC system is suitable for the setting, activities, number of occupants and length of time the space is occupied, and before making any changes to the system;
- If possible, run systems for two hours at maximum outside airflow before and after the rooms and/or building are occupied;
- If possible, run bathroom exhaust fans continuously if they are vented to the outside;
- Consider the use of portable high efficiency particulate air (HEPA) filters only in situations where enhancing natural or mechanical ventilation is not possible and when physical distancing can be achieved. Consult an experienced professional before using these devices.
- Install barriers or shielding, such as Plexiglas dividers, for example:
- At registration points where prospective jurors interact with court officials;
- Between seats in any seating areas or in the jury box;
- Around the witness box and jury box;
- In front of the judge or other court officials;
- Around the stations used by counsel.
Note: While such barriers do not replace the use of non-medical masks, they can provide an additional layer of protection.
- Provide prospective jurors with advance information on health and safety measures that will be observed at the court facility, so as to inform their conduct and provide reassurance of safety (see the Tip Sheet on Jury Summons).
- Conduct health screening of jurors, other court users and court personnel upon their arrival at the court facility.
- Train designated personnel on how to conduct proper health screening.
- Wherever possible and subject to applicable legislation, collect basic information on all persons who enter the court facility, to support contact tracing efforts by the local public health authority as needed.
- Make hand sanitizer containing at least 60% alcohol available at entrances and exits.
- Post signage and instructions throughout the building to promote physical distancing, respiratory etiquette and proper hygiene practices.
- Provide an introductory presentation to prospective jurors outlining safe practices while in the courthouse such as respiratory etiquette, handwashing, following procedures and floor markings to ensure physical distancing, and what to do if they become ill.
- Ensure the availability of court staff to assist with health and safety concerns, answer questions, and reinforce distancing and other requirements.
- Ensure proper cleaning and disinfecting protocols are followed; clean the building and individual rooms between use by different groups (see Tip Sheet on General practices for cleaning and disinfecting).
- Adjust processes to enable physical distancing and reduce contact with objects and surfaces, for example by:
- Asking prospective jurors opting for a religious oath to look upon but not touch the religious text when being sworn in, or to bring their own text;
- Eliminating the passage of documents between persons wherever possible;
- Instructing counsel and court officials to observe distancing in their movements within the courtroom.
- Implementing a building movement protocol (including traffic directions, elevator use, floor markings, standing locations in gathering areas, and separately designated entry and exit points).
- Employing a washroom attendant to manage the volume of users at a given time.
Personal Protective Equipment (PPE) and Non-Medical Masks (NMMs)
- Provide disposable well-constructed, well fitting non-medical masks (NMMs) for jurors, other court users and court personnel, and promote their use as recommended by public health authorities.
- Provide clear instructions to jurors, other court users and court personnel on how to safely put on, wear, and remove a mask and ensure masks are properly worn.
- Provide appropriate PPE such as face shields, as recommended by public health authorities, to any court personnel who are required to be in close contact with prospective jurors, such as security officers and court officials responsible for guiding individuals, administering oaths, etc., and to any personnel responsible for cleaning and disinfecting. While face shields do not replace masks, they provide an additional layer of protection from eye contamination through respiratory particles.
- Ensure appropriate safety training of any court personnel required to use NMMs and PPE, consistent with applicable occupational health and safety laws and regulations.
Get further guidance on protecting court personnel and court users and general practices for cleaning and disinfecting applicable to all court operations
Resources and References
- Action Committee on Court Operations in Response to COVID-19
- Public Health Agency of Canada