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When it comes to selecting a jury, potential jurors typically come in three types: those who are super keen, those who would rather spend a week undergoing painful dental surgery, and those who answer the call without complaint, recognizing it as their civic duty.
Now, as Manitoba prepares to become one of the first provinces to resume hearing jury trials in the midst of the COVID-19 pandemic, there is a fourth category: those who fear sitting on a jury could expose them to a grave health risk.
Summons have been issued for 300 people for two Winnipeg jury trials set for September. Jury selection is scheduled for August 27-28.
Among the roughly half of potential jurors who have responded to their summons, "there hasn’t been a tremendous anxiety," said Court of Queen’s Bench Chief Justice Glenn Joyal.
"But I do think there is a psychological component here that we have to address," Joyal said. "We are probably going to have to be all the more empathetic and attentive to those psychological concerns. If we’re going to start seeing them, (it will be) at jury selection."
Joyal said Manitoba’s comparative success in levelling the curve of coronavirus infection satisfied him and other justice stakeholders it was time to resume setting jury trials, provided the necessary safeguards were in place.
"Which isn’t to say it is without risk, but it isn’t Ontario," Joyal said.
"It’s not business as usual yet,… but we are by law an essential service and at some point we had to start moving toward a transition," he said. "Part of the judicial service is to make sure people have access to what it is we do. If we could put in place those safeguards that protect the litigants, protect witnesses, protect lawyers, court staff and judges, then we had an obligation to do so."
“It’s not business as usual yet,… but we are by law an essential service and at some point we had to start moving toward a transition." — Court of Queen’s Bench Chief Justice Glenn Joyal
Typically, jurors awaiting jury selection have sat elbow to elbow in two courtrooms. Now, jury selection will take place not at the Law Courts, but a block away at RBC Convention, so as to accommodate social distancing requirements.
"It was pretty clear early on that the only way we would be able to proceed with the mechanics of something like a jury trial during the fall period would be to ensure that those component parts of a jury trial, like jury selection, could be accommodated in a unique way," Joyal said. "We are quite confident that the Convention Centre will permit the requisite six feet social distancing and we’re not in any way compromising anything in the selection that we are doing."
Jury selections scheduled for two upcoming trials in The Pas and Thompson will also take place "off-site," Joyal said.
Masks and hand sanitizers will be readily available to everyone in court and courtrooms will be fogged at the end of each day, Joyal said.
Keeping everyone the recommended two metres apart will require a certain measure of "choreography," he said, with Crown and defence lawyers only allowed to move from their podium with the permission of the court. Judges, witnesses and court clerks will be separated by plexiglass.
In the courthouse’s largest courtroom, jurors can be split into two full-size jury boxes and extra seating to allow for spacing requirements.
Juror deliberations will not take place in a courtroom’s attached jury room but in a separate courtroom where jurors can spread out, Joyal said.
One of the scheduled trials will be "particularly challenging," Joyal said, in that it involves five accused who will be required to sit in five separate prisoner boxes.
Mask use will not be mandatory, Joyal said.
“We are quite confident that the Convention Centre will permit the requisite six feet social distancing and we’re not in any way compromising anything in the (jury) selection that we are doing.”
"The Manitoba situation is such that the best advice we are getting right now is that masks, given the level of gravity of the situation here, are not necessary to prevent transmission," he said. "That is fluid, (and) we are open to whatever the latest is, but right now if you are social distancing, masks shouldn’t be necessary. But if jurors themselves feel more comfortable wearing masks, we will make masks available and we will try to do that in a relatively uniform way."
Witnesses, however, may be required to remove their mask, if requested by the court, Joyal said.
"That is a complicating factor, because you need to have... the ability to hear and understand in a clear way what the witness is saying. You also have a situation where the issue is raised: Do counsel and does the court and does the jury need to see the face of the person testifying?"
While demeanor is viewed as a limited consideration in assessing the evidence of a witness, "there is a place for a juror or a trier of fact to be able to see and watch and observe the witness as she or he gives the testimony," Joyal said.
Ten jury trials have been suspended in Manitoba since the pandemic lock-down began in mid-March. All have been adjourned to dates within accepted timelines or later dates with the consent of the defence, or resolved, Joyal said.
Sixteen jury trials are set for the fall term.
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