Supreme Court mandates COVID jabs for in-court staff; Federal C.A. won’t disclose COVID policies

Law360 Canada (September 7, 2021, 2:35 PM EDT) -- Canada’s top court has informed The Lawyer’s Daily that all nine of its judges are fully vaccinated against COVID-19 and that its staffers will have to be fully vaccinated in order to work in the Supreme Court of Canada’s courtroom during the fall session which begins next month.

Responding to queries from The Lawyer’s Daily, the Supreme Court of Canada said in an e-mailed statement that Chief Justice of Canada Richard Wagner has directed that access to the top court’s Ottawa hearing room by “court staff, including law clerks, registry clerks and court attendants” will be “conditional upon being fully vaccinated, and this direction will be in effect for the fall session” which begins in early October.

“Until further notice, counsel will continue to appear remotely via Zoom, and the court building remains closed to the public,” explained the Supreme Court’s executive legal officer Renée Thériault, who noted that the court is continuing “to monitor the situation with a view to ensuring a safe and healthy workplace for all of our employees within the federal public service framework.”

(The federal Liberal government announced last month, just before calling an election, that it will mandate COVID-19 vaccinations this fall for federal public servants — which would presumably include staff of the five Ottawa-based federally appointed courts. However, there is no federal vaccine mandate in place at this time, and there may never be, particularly if there is a change in government Sept. 20.)

As the delta variant of COVID-19 spurs a rapid rise of infections, particularly among unvaccinated persons, and as many businesses and public employers announce vaccine mandates, The Lawyer’s Daily is contacting all chief justices and chief judges across the country to ascertain what specific policies, and measures, if any, their courts are rolling out to ensure that their court’s judges and staff are fully vaccinated against COVID-19, and are thus protecting the public, litigants, lawyers and members of the court and staff.

The Federal Court recently became the first known court to announce that its judges are all fully vaccinated against COVID-19. 

The Manitoba Court of Queen’s Bench also announced last month that access to its chambers — whether by judges, judicial assistants, court staff or others — will be restricted to those who are fully vaccinated. Any judges who are not fully vaccinated will not be assigned judicial duties this month, Chief Justice Glenn Joyal said.

The Canadian Judicial Council (CJC), chaired by Chief Justice Wagner, recently told The Lawyer’s Daily that each court, under the leadership of its chief justice, must independently make its own policies on COVID-19 vaccination for judges and staff, given its particular circumstances, in order to ensure the health, safety and well-being of all persons who attend the court building, as well as access to justice and the proper functioning of their court.

In response to a query, Chief Justice Marc Noël, who leads the Federal Court of Appeal, told The Lawyer’s Daily he does not consider it ethically appropriate, however, for him or his court to disclose publicly “whether it has any personal views or institutional policies on this issue, one way or the other” given that the matter of vaccine mandates is likely to come before his court for adjudication and the court’s paramount obligation is to maintain its impartiality.

“The issue of mandatory vaccination in workplaces and other settings is fraught with controversy. It is a subject of debate in the current federal election campaign,” Chief Justice Noël explained in an e-mail. “This issue is almost certain to come before our court in the form of appeals from decisions on labour grievances, human rights complaints and other matters.”

Chief Justice Noël noted that the CJC’s recently published Ethical Principles for Judges stipulates that judges “must ensure that their conduct at all times maintains and enhances confidence in their impartiality”, both actual and apparent.

“To preserve the actual and apparent impartiality of the court on this issue and related issues — as the court must — the court will not disclose whether it has any personal views or institutional policies on this issue, one way or the other,” Chief Justice Noël explained. “The court’s paramount responsibility, especially on an issue as controversial and unprecedented as this, is to ensure that Canadians are confident in this court’s capacity and commitment to decide cases on the facts and the law and nothing else — not even any personal views and institutional policies we may happen to have. Thus, in no way should this response be seen as a desire to conceal the vaccination status of the judges.”

The chief justice added that the court’s registry, the Courts Administration Service, is “responsible for ensuring that all precautionary measures and requirements are taken to protect all who attend court premises. Judges presiding over hearings shall address any concerns about the safety of their courtrooms.”

Photo of Chief Justice Richard Wagner by Supreme Court of Canada Collection

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