With mandatory vaccine policies becoming more and more common in all different kinds of employment settings and possibly employment contracts in the future, it is interesting to see how the various courts across our country have tackled the issue. Are the vaccines similarly mandatory for judges? Are they mandatory for other court staff? The answers to these questions are not totally clear. This is surprising given that the Canadian judiciary has an institutional obligation of transparency and public accountability. Should Canadians not be made aware of their risks of catching the virus if they were to attend court? Will access to justice be stifled if, absent vaccine mandates, the courts become unsafe settings?

 

Transparency: Which Judges Are Vaccinated?

Some Canadian courts have been very clear about whether or not their judges have been vaccinated. The Federal Court, for instance, has said all its judges are vaccinated. The Supreme Court of Canada, too, has confirmed that all nine of its judges are vaccinated and that all court stall will be required to be vaccinated as well. The Ontario Superior Court of Justice has also confirmed that judges who conduct in-person courtroom proceedings will be fully vaccinated. Courts in Alberta have also enacted mandatory vaccine policies for judges and court staff. The Alberta Court of Appeal, Court of Queen’s Bench and provincial court will be denying access to secure areas of their courthouses to counsel, service providers and visitors who have not been vaccinated or have not received a negative test no more than 48 hours prior. Finally, the Territorial Court of the Northwest Territories has confirmed that all its judges are fully vaccinated.

On the other hand, but still in the spirit of transparency, the Nunavut chief justice has declared that although all judges are encouraged to become vaccinated, there are currently no plans to enact a vaccine mandate for judges. Likewise, Saskatchewan’s provincial courts, Queen’s Bench and Court of Appeal have no vaccine mandates. The Newfoundland and Labrador Supreme Court also has no mandate, but is encouraging judges to get the vaccine in any event. In New Brunswick, although no mandate exists, all judges of the Court of Appeal and Court of Queen’s Bench have been vaccinated.

 

 Lack of Transparency: Refusal to Disclose Vaccination Policies    

Other Canadian courts have been less transparent. Many courts have refused to provide particulars about how many judges have been vaccinated and whether or not vaccination mandates will be implemented. Their refusal to provide answers is based on the idea that disclosing possible vaccine mandates, or otherwise discussing the vaccination status of their judges, would bring into question the impartiality of the court. In correspondence with The Lawyers’ Daily, communications director Jennifer Stairs said, on behalf of Nova Scotia’ judiciary:

“It would be inappropriate for the judiciary or a specific court to disclose its views or institutional policies on vaccinations, regardless of what those are, given that it is an issue that may come before the courts for adjudication. With that in mind, there are no plans to publicly disclose the vaccination status of Nova Scotia judges, or the position of any court on mandatory vaccination for judges.”

The Federal Court of Appeal has taken the same approach. Chief Justice Marc Noël, also in correspondence with The Lawyers’ Daily, argued that:

“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. 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.”

The Federal Court of Appeal and Nova Scotia judiciary are joined by the Manitoba Court of Appeal, who likewise believe that disclosing vaccination policies would bring into question the court’s impartiality.

This is a very curious argument. It is hard to see how a vaccine mandate instituted by a court, and applied uniformly to all its judges, could be used as evidence to question a particular judge’s lack of impartiality on the issue of COVID-19 vaccines. As time goes on, it will be interesting to observe how the courts change in policy and approach regarding mandatory vaccines.