Excluding unvaccinated individuals from a pool of prospective jurors didn’t cause a miscarriage of justice for a convicted sex offender, the province’s top court says.

In a unanimous ruling posted online, a three-member Alberta Court of Appeal panel said the administrative decision to only allow fully vaccinated individuals to sit on juries during a later wave of the pandemic didn’t violate Daniel Eserjose’s Charter rights.

Eserjose, 43, was sentenced to four years in prison after jurors found him guilty of sexual assault at the conclusion of his Edmonton trial in February 2022.

“He appeals his conviction on one discreet ground: that the jury selection process violated his . . . Charter right because a clerk of the court screened potential jurors for COVID-19 vaccination status,” wrote Justice Dawn Pentelechuk.

“Those individuals unable to produce a QR code evidencing they had received at least two vaccinations for COVID-19 were excused.”

Pentelechuk noted Eserjose’s lawyer, Rory Ziv, raised concerns about the process not being authorized by the Jury Act, or the Criminal Code which allow for exemption by judicial decision.

“The jury selection judge was not persuaded that this procedural irregularity of clerical screening and the absence of notice made it impossible to select a representative and impartial jury,” she said.

“The thrust of Mr. Eserjose’s complaint is that he had limited notice of the pre-screening of potential jury members, and this was done by court administrators rather than by the jury selection judge in open court. However, even accepting this was an irregularity in the jury selection process resulting in an improperly constituted jury, the curative proviso under . . . the Criminal Code can apply.”

That section of the code can be used if the trial court had jurisdiction over the class of offence, which it did, and there was no prejudice to the accused, Pentelechuk said.

“Prejudice in this context is solely concerned with whether the accused was deprived of their right to a fair trial by an independent and impartial jury,” she said.

“Excluding unvaccinated people from jury selection has no impact on the impartiality or representativeness of the jury.”

She noted the Supreme Court has stated “there is no right to a jury roll of a particular composition, nor to one that proportionately represents all the diverse groups in Canadian society.”

“Out of this jury pool, a representative and impartial jury was selected with alacrity, and a reasonable person would perceive that Mr. Eserjose received a fair trial,” Pentelechuk concluded.

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