Action Committee on Court Operations in Response to COVID-19

Action Committee on Court Operations in Response to COVID-19

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Impact of Vaccination on Court Operations

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A Statement from the Action Committee

Our Committee exists to support Canada's courts as they work to protect the health and safety of all court users in the COVID-19 context while upholding the fundamental values of our justice system. These mutually sustaining commitments guide all of our efforts.

NOTICE: This document highlights best practices when the epidemiological situation and relevant risk assessments call for enhanced public health measures to control the spread of COVID-19 in a court environment. Please contact local public health authorities for current requirements, which may differ from the practices outlined in this document, and your local Occupational Health and Safety regulator for current guidance specific to the workplace.

The Action Committee on Court Operations in Response to COVID-19 has released this Tip Sheet to help guide safe court operations in Canada. This Tip Sheet is meant to provide guidance to court administrators and presiding judicial officers who may be called upon to make decisions, about whether and how to modify public health control measures to account for the vaccination of court personnel and court users. The Action Committee strongly recommends courts maintain health and safety measures alongside the promotion of COVID-19 vaccinations, as recommended by local public health authorities. This Tip Sheet also aims to identify the necessary considerations for decision-makers and for the counsel, parties, and other court users impacted by their decisions.

In the exercise of due diligence and responsible stewardship, control measures are likely to evolve with knowledge related to the risks posed by COVID-19 and the usefulness of such measures to mitigate those risks.

Considerations regarding vaccine effectiveness

Vaccines approved for use in Canada are very effective in reducing the likelihood of severe illness, hospitalization and death associated with COVID-19. However, fully vaccinated people may still become infected (without or without symptoms). It is therefore important to continue to follow public health measures to help stop the spread of COVID-19.

The vaccines work by preparing our immune system to fight the SARS-COV-2 virus (the virus that causes COVID-19). Protection from primary doses decreases over time, and booster shots can help improve immune response.

Considerations Regarding Court Facilities

Court facilities are both workspaces and public spaces that play an important role within Canadian society. In addition to being workplaces for judges and court personnel, court facilities house offices for many other professionals including lawyers, police, social and youth services workers, corrections workers, and journalists. Parties, witnesses and jury members are compelled to attend. Many people also come to the courts to seek information or to support friends and family involved in a legal process.

In addition, some court facilities are multi-use facilities that may be owned by federal and provincial governments, municipalities or communities, or be rented as needed, especially in smaller centres, and may be co-located with prosecution and probation offices, as well as other government offices that provide essential services and are open to the public. It is therefore incumbent upon the courts to consider the broader public, and their likely vulnerabilities, when establishing or modifying health and safety related control measures in facilities under their direct control.

  • owned by federal and provincial governments, municipalities or communities
  • rented as needed, especially in smaller centres
  • co-located with prosecution and probation offices
  • located with other government offices that provide essential services and are open to the public

It is therefore incumbent upon the courts to consider the broader public, and their likely vulnerabilities, when establishing or modifying health and safety related control measures in facilities under their direct control.

Courts should consider all of these uses and users of court facilities in determining whether and how to modify the established public health measures as set out in the hierarchy of controls in response to vaccination.

Risk Assessment for COVID-19 Transmission

At the outset of the pandemic, physical distancing was one of the important ways to mitigate the risk of COVID-19 transmission in the workplace. Vaccination is another important and highly effective means of mitigation. However, as stated above, fully vaccinated people may still become infected (with or without symptoms), and duration of effectiveness of vaccines is being monitored. Consequently, vaccination of court personnel and court users is only one factor to consider in assessing and seeking to reduce the risk of COVID-19 transmission in a court facility.

Regardless of the rate of vaccination in their community, courts should:

  • Continue to work with their health and safety committee or representative (if available) to identify the risks of transmission
  • Consider the types of close interactions occurring between court personnel and others during all stages and in all types of court proceedings, including travel and registry services
  • Continue to follow the appropriate hierarchy of control measures for your court facility as set out in the Orienting Principles on Safe and Accessible Court Operations and Keeping Our Court Environments Safe in the Midst of a Pandemic, and with guidance from local public health authorities. In the exercise of due diligence and responsible stewardship, control measures are likely to evolve with knowledge related to the risks posed by COVID-19 and the usefulness of such measures to mitigate those risks.

Review and Prepare to Update Your Policies

Canada is offering the COVID-19 vaccine to anyone in Canada who is eligible and would like to receive the vaccine. With this in mind, courts may wish to develop or review their vaccination policies and guidelines, as may be appropriate to the context, in consultation with relevant experts and committees, and with access to justice as a guiding principle. Courts should also obtain legal advice where necessary, for example, on the legality of collecting information about individuals’ vaccination status. Considerations should include:

  • How your vaccine policy will impact court personnel, court users and members of the public
  • How your screening methods will change, if at all, to incorporate vaccination status, in line with public health advice
  • How you will meet privacy requirements for the collection, storage, use and disposal of personal information related to vaccination status
  • Whether your safety plan should be updated to address the impact of COVID-19 vaccinations on your ability to provide court services
  • How you will communicate your policies and guidelines to employees and provide information on available government assistance? Provide opportunities for employee feedback and discussion

Considerations Regarding the Administration of Justice

The courts are an integral part of our democracy. Courts uphold the rule of law in criminal and civil matters, and assist Canadians in resolving important family, contract, employment, immigration, and housing matters; and as such they perform an essential service to the country. When COVID-19 case numbers and severe outcomes decrease across Canada, there may be an increase in requests for in-person hearings.

Since the onset of the pandemic, the courts have rapidly adopted the use of technology for court appearances and court services where possible. However, in-person proceedings may be preferred in certain types of cases or circumstances, to ensure that justice is accessible and fair to all individuals, including marginalized persons, where they can be carried out safely and effectively. Courts may therefore need to exercise discretion to determine whether and how to modify health and safety control measures on a hearing-by-hearing basis, taking into account the particular circumstances of the individuals involved. The following considerations may assist courts to respond to immediate requests, with the understanding that these considerations will continue to evolve along with public health guidance.

Involve the Parties

Courts should work with parties and their counsel to identify and weigh the specific needs and vulnerabilities of the individuals involved in a given hearing and the health measures available to mitigate risks of gathering in-person:

  • Are parties, counsel, courtroom staff or witnesses at higher risk for more severe disease or outcomes from COVID-19?
  • • How many individuals are expected to gather for the hearing? Could public health measures (e.g., physical distancing, mask wearing) be maintained in addition to the protection afforded by vaccination?
  • Have the parties recently received negative (or positive) test results that they are willing to disclose?
  • Has providing proof of vaccination been mandated by your jurisdictional government or public health authority in certain settings?
  • How might parties who require it be accommodated or afforded adequate protection, and how might other parties adjust their own risk mitigations accordingly?

Consider the operation of the justice system

Courts hear a variety of matters. While the majority of matters heard by the courts involve a crucial issue for the parties involved, certain matters have greater implications for an individual’s liberty or wellbeing. Courts should strive to uphold the principles of openness and transparency, procedural fairness, and access to justice while addressing the specific needs of the parties and taking into account the need to maintain protective health measures:

  • Does modifying health measures due to vaccination status allow for greater access to justice for the parties?
  • What technologies are available (i.e. videoconference equipment and related bandwidth, cellular phones and signal strength, etc.) to hold virtual or hybrid hearings?
  • Could a hybrid model of in-person attendance by some and virtual attendance by other individuals satisfy both health and legal interests?
  • Could the hearing be divided into in-person and virtual sessions in order to satisfy both health and legal interests?
  • Does a virtual, in-person, or hybrid hearing best uphold the open courts principle?
  • What is the impact of delay on, for example, memory of witnesses or the financial interests of the parties?
  • Can the sensitive health information of individuals relating to vaccination status be adequately protected through the court’s procedures during oral or written submissions?
  • Does the decision on how to proceed differently impact the parties? Are there external factors (e.g. private testing, high-risk professions/workplaces) that, combined with a decision to hear a matter in person, or delay a matter, would cause a disproportionate impact on one party?

Resources and References

Action Committee on Court Operations & Canadian Centre for Occupational Health and Safety

Public Health Agency of Canada

Canadian Centre for Occupational Health and Safety

Document last updated December 14, 2022