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ARTICLE ● Courts’ hiding their COVID-19 vaccination policies legally flawed, against public interest: experts ● THE LAWYER'S DAILY Sep 24, 2021

Courts’ hiding their COVID-19 vaccination policies legally flawed, against public interest: expert

Friday, September 24, 2021 @ 12:56 PM | By Cristin Schmitz and Terry Davidson

Experts are rejecting as legally flawed, and contrary to the public interest, an argument that a few Canadian chief justices are making to justify not revealing how many of their court’s judges are vaccinated for COVID-19 and what — if any — mandatory COVID-19 vaccination policies their courts have in place.

As a separate branch of government, the Canadian judiciary has institutional obligations of transparency and public accountability and is said not to be subject to federal or provincial vaccine mandates that might emerge in the workplace. Therefore The Lawyer’s Daily is contacting every chief justice and chief judge across the country to ask how many of their judges are vaccinated for COVID-19, and what mandatory vaccination policies the publicly funded courts have for their judges and staff.

 
Amy Salyzyn, University of Ottawa

"This is about more than just transparency for transparency's sake,” commented University of Ottawa law professor Amy Salyzyn, president of the Canadian Association for Legal Ethics. “The public should be given all available and material information about any health risks they may incur when attending a courthouse. This includes, in my view, information about the judiciary's vaccination status."

“As a practical matter, shouldn’t the public know the court’s policy if they must, or may wish to, attend court?” said Gavin MacKenzie of Toronto’s MacKenzie Barristers.

MacKenzie, an expert on professional ethics, endorsed “the policies adopted by the Supreme Court of Canada and other courts to protect people who attend court proceedings during a public health crisis.
“In my view, courts should announce their policies on the subject in the interest of  transparency and accountability.”

The Supreme Court of Canada and others, such as the Manitoba Court of Queen’s Bench, have been transparent.

The Supreme Court told The Lawyer’s Daily, for example, that its nine judges are fully vaccinated, and that Chief Justice of Canada Richard Wagner is requiring court staff be vaccinated before entering the courtroom in the fall session.

As another example, the country’s largest superior trial court, the Ontario Superior Court of Justice, has said the public can expect that any of its judges who conduct in-person courtroom proceedings will be fully vaccinated against COVID-19.

But a handful of courts are refusing to disclose anything around their judges’ or staffs’ COVID-19 vaccinations (or lack thereof), including whether any (and how many) of their judges are vaccinated for COVID-19; what mandatory COVID-19 vaccination policies their courts have — if any; how any vaccination policies are enforced; and what the judiciary is doing to ensure that court staff are vaccinated.

 
Emmett Macfarlane, University of Waterloo

University of Waterloo political science professor Emmett Macfarlane rejected those courts’ key argument that revealing a COVID-19 vaccine mandate for judges, or divulging judges’ vaccination status, would bring into question their impartiality.

“Frankly, I think it’s a bizarre argument,” he said. “Impartiality shouldn’t extend to taking basic, reasonable health and safety measures.” MacFarlane explained

“I don’t see why a judge would be expected to have a personal view based on policies of their courts. I don’t see why a judge’s impartiality would be impacted by their decision to have become vaccinated. Would we expect judges to recuse themselves, or see their impartiality [impacted] in a disability rights case if the judge used a wheelchair, or was themselves in some way disabled? I don’t understand it.”

Still, given the controversial nature of vaccine mandates, generally, Macfarlane sees how judges “have fallen into this trap of thinking that there [is] some sort of perception issue at play.”

“But there are all manner of issues that might come before courts that are implicated in the daily working lives of judges, or their own personal choices, but we would          never  call into question their impartiality on those bases, so this shouldn’t be treated any differently just because we’re in the middle of a pandemic,” he suggested.

On Sept. 21, all three levels of court in Nova Scotia became the latest to decline to disclose anything at all to The Lawyer’s Daily about their internal policies on COVID-19 vaccination, or the vaccination status of their judges — echoing the same argument made earlier by the Federal Court of Appeal and Manitoba Court of Appeal whose chief justices each declined to provide any information on the basis that telling the public about their courts’ COVID-19 vaccination policies (or lack thereof) risks undermining public confidence.

In a written response to The Lawyer’s Daily, communications director Jennifer Stairs, on behalf of Nova Scotia’s judiciary, underscored the “vital” importance of public confidence in the courts’ impartiality.

“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,” Stairs said. “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.”

Legal ethicians and professional conduct experts contacted by The Lawyer’s Daily were not persuaded that a court’s decision to hide whether it has a vaccination policy (or the nature of any policy) will preserve public confidence in its judges’ impartiality.


  “If there actually are impartiality concerns [around disclosure] — and I do not think there are — it is difficult to understand how the issue of impartiality would turn on the court being secretive as to whether there is a vaccination policy: either the policy exists or it does not,” said Salyzyn.

MacKenzie agreed.

 

 
Gavin MacKenzie, MacKenzie Barristers

          

 “I have difficulty with any suggestion that a court that adopts and announces a vaccination policy may somehow be compromising judicial impartiality,” he said. “Neither the adoption of such a policy, nor the announcement of it, raises any issue of judicial ethics.”

MacKenzie predicted that “an argument that the adoption and announcement of such a policy may give rise to a reasonable apprehension of bias would be doomed to fail.”


In his written response to queries from The Lawyer’s Daily about his judges’ vaccination status, and his court’s policies around COVID-19 vaccination, Federal Court of Appeal Chief Justice Marc Noël noted that issues related to mandatory COVID-19 vaccination are likely to come before his court.

 “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 said.

“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.”

Manitoba Court of Appeal Chief Justice Richard Chartier agreed, stating that “courts are called upon to provide an impartial forum to resolve these important issues. In my view, the answers to your questions may be interpreted in a way that will bring into question our court’s impartiality.”

But both Salyzyn and MacKenzie said a judicial bias argument would not fly in court.


"It is difficult to understand how a court merely confirming whether it has instituted a mandatory vaccination policy for its judges could be successfully used by litigants in individual cases as evidence of a judge’s lack of impartiality,” said Salyzyn. “The fact that a court, as an institution, has announced that it is, or is not, requiring its judges to be vaccinated doesn't rationally imply that any of its judges have personally prejudged whether such mandates are legal or indeed, are legal in entirely different    contexts.”

Nor are courts’ refusals to publicly disclose their COVID-19 vaccination policies consistent with their public orders implementing other health and safety measures in their courts.

“Courts have implemented and publicly announced a whole host of other safety measures in response to the pandemic, and the announcement of such measures   has not interfered in the courts’ hearing of cases about the legality of pandemic safety measures implemented by other actors in other contexts,” noted Salyzyn.

MacKenzie noted that judges are accorded a strong presumption of impartiality.

 “In my view [it] could not be displaced by an institutional policy designed to protect the public during a pandemic,” he said. “This is a time at which transparency and        accountability must prevail.”

MacKenzie also suggested that courts which choose to keep secret their COVID-19 vaccination policies, and the vaccination status of their members, could undermine public confidence in their judges’ impartiality rather than enhance it.

“If a court’s policy on public health measures during a pandemic were concealed for fear that their announcement may somehow compromise the appearance of judicial  impartiality, that would be more likely, rather than less, to raise concerns,” he said.

 
Stephen Pitel, Western University

Western University law professor Stephen Pitel, vice-president of the Canadian Association for Legal Ethics, agreed that arguments based on possible cases about vaccine mandates coming before the court “do not hold much water.”           

“I do wonder, if the court heard a challenge to a similar policy in a different workplace, whether at minimum the chief justice would have to not hear the case,” Pitel said. “Having established such a policy for the court workplace seems to suggest he or she personally considers it to be legal, which seems close to expressing a view of the issue, even in a different workplace context. But that does not preclude disclosure of the policy,” Pitel advised. “If at all, only the administrative judge, the chief justice or associate chief justice responsible for imposing the policy, might have to recuse. No other judge of the court would.”

Pitel added that while the bias argument is not “very solid,” a court might have other unspecified reasons not to disclose its COVID-19 vaccination policy. “My sense is that best practice calls for disclosure of both having a policy, and its contents,” he said. “The policy aims to protect users of the court and to reassure them as to their safety. That is best achieved through transparency. But that is nonetheless an argument, rather than a ‘rule’ which would mandate disclosure.”

Inquiries by The Lawyer’s Daily about COVID-19 vaccination polices for the thousands of judges and court staff who work across Canada have revealed that judicial leaders are taking very different approaches to disclosing their internal policies on mandatory COVID-19 vaccination for judges and staff, and the vaccination status of their judges.

Both the Federal Court and the Supreme Court of Canada have disclosed that all their judges are fully vaccinated.

Similarly, the New Brunswick Court of Appeal and New Brunswick Court of Queen’s Bench informed The Lawyer’s Daily that they do not have a mandatory COVID-19 vaccination policy — but that all eight appeal judges and all 33 superior court trial judges have received their full round of shots.

As well, Saskatchewan’s provincial court, Queen’s Bench, and Court of Appeal have all disclosed that they have “no formal protocols with respect to the vaccination of judges.” Newfoundland and Labrador’s Supreme Court told The Lawyer’s Daily it is not requiring its judges or staff to be vaccinated against COVID-19, but is urging them to get their shots.

Taking a less transparent approach, British Columbia’s courts have declined to disclose their judges’ COVID-19 vaccination status — although the courts said this might be revisited as the COVID-19 situation in the province evolves, and as the latest public health guidance changes. The B.C. courts were transparent, however, in disclosing that their chief justices are not requiring that their nearly 300 judges, or court staff, be vaccinated for COVID-19 before entering courthouses:

The Ontario Court of Appeal and the Ontario Court of Justice, Canada’s busiest and largest trial court with 383 members (including part-time judges), have said they are working on COVID-19 vaccination policies for their members,

None of Alberta’s courts have yet answered written questions from The Lawyer’s Daily.

 

ARTICLE ● Ceremonial Opening of the Court Conducted Via YouTube ● THE LAWYER'S DAILY Sep 15, 2021

CEREMONIAL OPENING OF THE COURT
CONDUCTED VIA YOUTUBE
Ontario’s chief justices address backlogs, stress need for accessibility as courts modernize
Wednesday, September 15, 2021 @ 3:34 PM | By Amanda Jerome

 

The quick modernization of the justice system in the wake of a global pandemic and the “historic backlog” of cases that COVID-19 has created were consistent themes throughout Ontario’s opening of the courts ceremony, held virtually on Sept. 14. One thing was made clear: technology is needed to keep justice moving, but ensuring the courts remain accessible to the most vulnerable is an important priority.

“Our modernization has been rapid. In the coming months and years we will need to evaluate what we have done and continue to invest in technology to ensure that we have the best tools and support to provide efficient and effective access to justice. We will also need to ensure our courts remain accessible to everyone, not just those equipped with laptops, cellphones, and high-speed Internet, but also the most vulnerable amongst us who may lack those tools or the abilities to use them,” stressed Chief Justice of Ontario, George Strathy in his remarks.

 

George Strathy, Chief Justice of Ontario

Chief Justice Strathy noted that “prior to the arrival of the coronavirus, our courts had functioned in ways unchanged for generations” and during his 50 years as “an observer of the law,” it often struck him that “the law was changing much faster than the way in which lawyers practised, judges judged and courts functioned.”

“In the course of 18 months, our courts have successfully catapulted themselves out of a dusty and fusty 19th or 20th century existence into a world of remote appearances, digital records and electronic filing,” he added, noting that this change was “driven by the pandemic, but realized through unprecedented collaborative efforts of the bench, the bar, and the Ministry of the Attorney General.”

Chief Justice Strathy stressed that “public trust is also fragile” and will “be eroded if those responsible for the administration of justice fail to understand and respect all those we must serve.”

“Public trust in the judicial branch as an institution, and public confidence in the administration of justice, are undermined when some of the most vulnerable members of society believe in their hearts that the system is beyond their reach, doesn’t understand or appreciate their concerns, takes too long, or it is too expensive and cumbersome to serve their needs,” he explained, noting that COVID-19 “shone a bright and critical light on the vulnerabilities of our society, magnifying pre-existing inequalities.”

 

Geoffrey Morawetz, Chief Justice of the Superior Court of Justice

Chief Justice of the Superior Court of Justice, Geoffrey Morawetz, recalled that when he began his role two years ago his “long-term vision was to bring the court into the 20th century.”

“Then the pandemic happened, which, in a surprising turn of events, pushed us rather quickly into the 21st century instead,” he added.

Chief Justice Morawetz noted that this “new environment has shown us the need to implement a new technological foundation to deliver more accessible justice at this moment and into the future.”

However, he made clear that this approach “comes with its challenges, and we are assessing the situation as we seek to improve.”

“Remote work has had its consequences on mental health, and technology poses a challenge for people who work within the justice system as they adapt to these new processes. The pandemic also exposed issues that we need to fix and improve, namely access to justice and the backlog,” he added.

Highlighted as a success, Chief Justice Morawetz noted the “over 180,000 virtual or hybrid hearings” the Superior Court has held “since the beginning of the pandemic, most commonly in family and civil.”

“This pandemic has bluntly reminded us not only of the need for our software and services to modernize, but for our workforce’s skills to modernize as well. We must equip our staff with the skills necessary to utilize new technology to effectively serve the public in the digital age,” he explained.

Chief Justice Morawetz said a “prime example of technological advancements in the courts is CaseLines, a document sharing platform that allows us to access documents for hearings anytime and anywhere.”

“We began implementing CaseLines August of 2020, and it was quickly adopted across the province. It is an important part of our strategy for tackling the backlog of cases. Last summer, the Ministry of the Attorney General procured CaseLines for our court. CaseLines can change how we do business, allowing us to access files from across the province and beyond. Its ability to make the justice system work will be integral to our services moving forward,” he added.

Chief Justice Morawetz also noted that the Superior Court’s “family law work has been incredibly busy” and throughout the pandemic it has “conducted over 96,000 virtual or hybrid hearings in family alone, including an unprecedented number of urgent requests.”

“Since the start of the pandemic, family cases have been a high priority to ensure the safety and well-being of children and families who have turned to the court for assistance,” he explained, noting that “despite these efforts, many challenges remain.”

“COVID-19 has caused delays that have aggravated the already significant difficulties of making post-separation arrangements, whether relating to children or financial support,” he said, adding that the court is trying to address delays by implementing improvements, such as the “new province-wide Notice to the Profession specific to family law cases and the introduction of the court’s Binding Judicial Dispute Resolution pilot.”

He stressed that the court is “working collaboratively with the bar and working groups to determine how virtual hearings can continue to be utilized once physical attendances can resume.”

“This remains a priority for the court moving into the future,” he added.

With regards to the criminal courts, Chief Justice Morawetz said the Superior Court has “heard over 34,000 proceedings over the course of the last 18 months.

He stressed that this “is in no small measure attributable to the input and dedication of the prosecutors and criminal defence lawyers to the criminal justice system and ensuring that it kept moving.”

“This required technological solutions and rules of practice to allow for appearances by accused persons and witnesses virtually,” he added, noting that with “the health and safety protocols in place in our courthouses, we have been able to resume and continue to expand our capacity for in-person hearings including jury trials.”

Chief Justice Morawetz explained that “as with civil and family,” moving forward the Superior Court has taken “temporary measures and made them a permanent feature of criminal practice: including e-filing, virtual proceedings and document sharing during proceedings.”

“We will also be developing a set of guidelines for the determination of which proceedings should be virtual and which in person in criminal which will be mindful of the particular access to justice issues involved,” he added, recognizing the “unique constitutional obligations and other issues that delay in criminal cases raise.”

He stressed that the “delay in conducting jury trials has compounded this concern.”

“I have identified addressing the backlog in criminal as a priority for our court,” he said.

Chief Justice Morawetz noted that “brick and mortar courtrooms” are needed for family and criminal cases, so the pandemic “necessitated an exponential increase in virtual hearings” for civil matters.

“Since the beginning of the pandemic, we have conducted over 50,000 civil hearings virtually,” he said, highlighting the civil court as a “prime example of the power of the CaseLines software” as the platform has been “embraced by judges and the bar.”

Chief Justice Morawetz stressed that virtual hearings “will be extremely helpful in the shorter term to help address the court’s pandemic backlog, and are here to stay in the longer term for routine appearances in each court system where appropriate.”

 

Lise Maisonneuve, Chief Justice of the Ontario Court of Justice

Lise Maisonneuve, the chief justice of the Ontario Court of Justice, said that though “justice participants can feel proud of many accomplishments during the past 18 months, some challenges remain.”

“One challenge we cannot ignore is the backlog of cases in our courts. This past year has seen an extra 60,000 criminal cases added to our backlog. There is also a backlog in provincial offences court. While the number of family matters in case management court has been reduced, there remains a concerning backlog in family trial matters,” she noted.

She stressed that the Court of Justice is “working to address pandemic-related trial backlogs in criminal, family and provincial offences act court” and a “number of initiatives have already been identified to reduce the criminal case backlog.”

“These initiatives include judge-led case management courts; an increase in availability of judicial pretrials to get these matters ready for trial or resolution; and additional plea and trial courts,” she said.

Elizabeth Dowdeswell, lieutenant governor of Ontario, noted in her address that there are “lessons we must continue to heed.”

“One of those is that we really understand and accommodate our interdependents(sic). For climate change is the next existential crisis that we’re facing, and technology and geopolitics will surely intensify global instability and forced migration. We are ultimately and mutually vulnerable on this earth and the challenge of how to protect and support the vulnerable will only deepen and be magnified,” she stressed.

She noted that a “return to normalcy” is “an opportunity to design something better.”

“This pandemic has laid bare for all of us the reality of inequity in our society. We need to have a place for genuine respectful conversations about who and what is essential, who and what matters. We need to break down silos between social and economic sectors. We need to think and act in a holistic and systemic way if we’re going to build resilience in this era of profound and fast-paced change. And we need to listen, really listen, to those who ask questions about justice,” she said.