British Columbia’s three courts not requiring COVID-19 vaccinations for judges — at least for now

  • September 13, 2021

By Cristin Schmitz for The Lawyer's Daily

British Columbia’s three court levels say they are not requiring their nearly 300 judges to be vaccinated for COVID-19, nor to disclose their COVID vaccination status — although this could change in the future.

“Given the very effective safety measures in place at all courthouses, the B.C. courts do not require members of the public, litigants, counsel, courthouse staff or judicial officers to disclose their vaccination status before entering courthouses,” the B.C. Court of Appeal, the B.C. Supreme Court and the B.C. provincial court said in joint statement responding to inquiries from The Lawyer’s Daily.

The Sept. 9, 2021, statement adds, however, that “as the COVID situation in British Columbia continues to evolve and as the latest public health guidance changes, this may be revisited.”

As an essential service, the three courts emphasized they are “committed to ensuring a safe environment for members of the public, litigants, counsel, courthouse staff, and judicial officers.”  

“The B.C. courts will continue implementing the physical distancing, masking, screening, cleaning and other measures that have been in place throughout the pandemic to contain the spread of COVID-19,” their statement said. “These measures were introduced to ensure that all courts could continue to perform their critical functions while also protecting the health and well-being of all court users, including the public, litigants, counsel, courthouse staff,and judicial officers. These measures are considered highly effective at reducing COVID transmission.”

The three courts also noted that in matters of public health, they “take guidance” from B.C.’s Provincial Health Officer, the B.C. Centre for Disease Control (CDC), and the B.C. Public Service Agency (PSA). “At this time, the BC CDC and BC PSA have not announced a cross-organizational vaccine mandate for public service employees,” the courts said in response to a question about mandatory vaccination for court workers.

As of Sept. 1, the British Columbia Court of Appeal has (approximately) 24 judges; the B.C. Supreme Court has 107 judges; and the B.C. provincial court has 152 judges.

The highly transmissible delta variant of COVID-19 is driving a fourth wave of infections, mostly among unvaccinated people, in B.C. and other provinces. 

As a separate branch of government, at least some members of the Canadian judiciary have publicly taken the position that any vaccine mandates that might be imposed by the federal or provincial governments on public servants (court staff, for example) does not apply to the judges themselves, even though judges are paid from the public purse.

To this point, however, the judiciary has not adopted a uniform position on the question of mandatory COVID-19 vaccinations for judges —nor on whether disclosure (and how much) is owed to the public, as a matter of appropriate transparency and accountability from the third branch of government

The B.C. courts’ decision to neither disclose to the public how many of their judges are vaccinated, nor to require COVID-19 vaccination of its members, contrasts, for example, with the transparency of the Supreme Court of Canada and the Federal Court of Canada, which courts have disclosed that all their judges are vaccinated against COVID-19.

The top court has also disclosed that Chief Justice Richard Wagner is mandating  that all staff entering the Supreme Court’s courtroom during the upcoming fall session must also be vaccinated against COVID-19.

In a similar vein, the Manitoba Court of Queen’s Bench has disclosed that all but one of its 42 members are vaccinated, and that only people who are vaccinated for COVID-19 may enter judicial chambers.

Meanwhile the nation’s largest superior trial court, the Ontario Superior Court of Justice, says the public can “expect” that judges hearing cases in person “will be fully vaccinated.”

The Lawyer’s Daily is asking the chief justices and chief judges of all the courts in Canada what policies, if any, they have with respect to mandatory COVID-19 vaccination for the judges of their courts and court staff.