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.

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. Notwithstanding the approval and distribution of vaccines in Canada, the Action Committee strongly recommends courts maintain current health measures until local public health advice changes. 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.

Notice

  • This guidance is not exhaustive and is advisory only; it is not intended to replace applicable health and safety laws and regulations, nor does following this guidance ensure compliance with those laws and regulations. Awareness of, and compliance with legal responsibilities must form an integral part of court operations in response to COVID-19. This guidance must be reviewed and adapted by adding good practices and policies to meet local circumstances and needs.
  • Always consider the hierarchy of control when putting health and safety measures in place, continue to evaluate how effective they are, and make changes when needed in accordance with local public health advice. Consultation with key stakeholders is also necessary, including workplace health and safety committees.

Considerations regarding vaccine effectiveness

Currently there is not enough scientific evidence to say whether the spread of COVID-19 can be stopped by vaccination alone. Because of this, it is essential that everyone continue to follow public health measures to help stop the spread of COVID-19 in our communities as set out in the Communiqué: The impact of vaccination on the courts.

Now that vaccinations are becoming more available across the country, courts may be asked about their impact among court personnel and court users in applying the established public health hierarchy of controls as set out in Safe and Accessible Courts: Orienting principles for Canadian Court Operations in Response to COVID-19. Courts should consider the implications of vaccinations in conjunction with the measures outlined in the hierarchy of controls to prevent COVID-19 transmission.

There are several vaccines authorized for use in Canada. They all work to stimulate our immune response, including making antibodies that will help fight the virus if a person is exposed to SARS-Cov-2, the virus that causes COVID-19, in the future. The authorized COVID-19 vaccines offer protection after one dose, though, if the vaccine is a two-dose series, two doses are needed to provide the best protection.

The COVID-19 vaccines protect people from getting sick or severely ill with COVID-19 and may help protect people around them. However, the vaccines are not 100 % effective in preventing COVID-19 and how long vaccination can protect someone is not currently known. Therefore, it is still possible for people to contract COVID-19, and potentially transmit the virus, even after being fully vaccinated. The Government of Canada is closely and continually monitoring the effectiveness of the vaccines that are authorized for use in Canada, including against variants of concern. For more information on how Canada is monitoring the effectiveness of vaccinations on reducing the severity of illness, preventing new infections, and COVID-19 transmission visit the National Advisory Committee on Immunization (NACI): Recommendations on the use of COVID-19 vaccines.

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.

Courts must 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 the vaccine roll-out.

Assess Your Risk for COVID-19 Transmission

At the outset of the pandemic, physical distancing was one of the important ways to eliminate the hazard caused by the COVID-19 virus in the workplace. Vaccination is another important and highly effective way to reduce that hazard. However, as stated above, the vaccines are not 100 % effective in preventing the spread of COVID-19 and it is still not known how long vaccination can protect someone. 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 your community courts should:

  • Continue to work with your health and safety committee or representative (if available) to identify the risks of transmission.
  • Consider the types of close interactions occurring between court staff and others during all stages and in all types of court proceedings, including travel, as well as for 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 in Response to COVID-19 and Keeping Our Court Environments Safe in the Midst of a Pandemic, and guided by local public health advice.

Review and Prepare to Update Your Policies

Canada is offering the COVID-19 vaccine on a voluntary basis to anyone in Canada who is eligible and would like to receive the vaccine. In anticipation of the completion of the vaccination roll-out, courts should review their policies and programs, in consultation with stakeholders, including your human resources personnel, occupational health and safety committee or representative, and union (if applicable). Obtain legal advice where necessary, for example, on the legality of collecting information about 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 and train all your employees on your policies and procedures. 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. As Canadians receive their first, and especially their second dose of a vaccine, their vaccination status and that of others may lead to 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 in response to the pandemic, 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 will therefore need to exercise discretion to determine whether and how to modify health and safety control measures on a hearing-by-hearing basis, as population and community immunization are realized, and 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:

  • Do parties, counsel, or witnesses belong to a vulnerable population or at higher risk for more severe disease or outcomes from COVID-19?
  • How many individuals would be 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? Are the parties subscribed to a contact tracing application?
  • Is there an approved vaccine credential in your jurisdiction?
  • Are all individuals involved willing to disclose their vaccination or immunity status?

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 be adequately protected through the court’s procedures during oral or written submissions relating to vaccination or immunity status?
  • 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

Document last updated June 25, 2021