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Federal Court Chief Justice Paul Crampton

Judiciary likely exempt from vaccine ‘mandates’ but won’t disclose vaccine plans for federal judges

Friday, August 20, 2021 @ 11:33 AM | By Cristin Schmitz

Last Updated: Monday, August 23, 2021 @ 2:22 PM

As members of a separate branch of government, albeit on the federal payroll, the nation’s superior trial and appellate court judges right up to the Supreme Court of Canada are likely not subject to the federal vaccine mandate. But so far, their judicial leaders are not publicly disclosing what — if anything — they can, or will, do to verify, and ensure, the full vaccination of their 1,200 judges, including many travelling judges.

 After the federal government’s surprise announcement Aug. 13 that Ottawa is requiring federal public servants to be vaccinated no later than the end of September, The Lawyer’s Daily contacted the chief justices of the Supreme Court of Canada and the Federal Court — two of the five Ottawa-based courts staffed by the federal public service — to inquire whether the federal vaccine mandate applies to the federally appointed judges of those courts (and by implication to their fellow federally appointed judges in the superior courts in the provinces).

 Chief Justice of Canada Richard Wagner

Chief Justice of Canada Richard Wagner

If the federal vaccine mandate doesn’t apply to the 1,200 judges (some of whom travel all over Canada for work) — for reasons of judicial independence and the constitutional separation between the executive and the judiciary — do their federal chief justices, including Chief Justice of Canada Richard Wagner, have the authority to mandate that the judges disclose their COVID-19 vaccine status? And if some judges unreasonably refuse to disclose and/or vaccinate, can (or will) chief justices impose health-protective administrative requirements on such judges, e.g.  requiring an unvaccinated judge to test regularly for COVID-19 before entering the workplace and/or require him/her to work remotely?

At press time, the office of Chief Justice Wagner, chair of the Canadian Judicial Council, the body composed of the nation’s 41 federal chief and associate justices, could not yet provide any answers to what might be sensitive, and possibly contentious, questions within the judiciary itself, including potentially as between some chief justices and some puisne judges.

Supreme Court of Canada executive legal officer Renée Thériault pointed out that Ottawa’s announcement last Friday did not include details of how the government plans to roll out its federal vaccine mandate.  

“We are advised that the government will engage with key stakeholders, including bargaining agents, about this initiative,” she said by e-mail. “At this point, there is really nothing further that I can add, except to reiterate that the Supreme Court of Canada is committed to ensuring a safe and healthy workplace for all employees.”

 Federal Court Chief Justice Paul Crampton

Federal Court Chief Justice Paul Crampton

The office of Federal Court Chief Justice Paul Crampton, a strong proponent of judicial administrative independence, said in a statement that the federal vaccine mandate does not apply to the 54 full- and part-time members of his itinerant trial court (including eight prothonotaries) — who normally sit all over Canada. (Quaere whether a separate federal vaccine mandate to be imposed this fall on “all” passengers on planes, interprovincial trains and cruise ships applies to federal judges who are travelling for their jobs?).

“As part of a separate branch of government, the court is not subject to policies directed towards government employees,” said the statement issued from the chief justice’s office.

“All Federal Court judges are encouraged to have regard to the evolving best practices pertaining to the COVID-19 pandemic, and to keep in mind that no member of the court has the right to conduct themself in a manner that places the health and safety of others at risk.”

The statement adds that the Federal Court “generally gives very serious consideration to government policies regarding workplace health and safety. In this regard, the court is awaiting additional details regarding the government’s approach to vaccinations for federal government employees. ... The Federal Court is committed to ensuring a safe and healthy environment for the public, employees of the Courts Administration Service, and the members of the court itself.”

Whether the federal vaccine mandate applies to the federal employees, (apart from the judges)  who work in the five Ottawa-based federal courts — which also include the Federal Court of Appeal, the Tax Court and the Court Martial Appeal Court — is among the questions posed and left unanswered at press time.

The federal Department of Justice replied by e-mail: “given the independence of the judiciary, questions about the vaccine mandate and federal courts, or federally appointed judges, should be directed to the relevant courts.”

(A statement e-mailed to The Lawyer’s Daily Aug. 23 by the Courts Administration Service (CAS), the registry for the Federal Court, Federal Court of Appeal, Tax Court and Court Martial Appeal Court, said CAS “will follow any mandate ordered by the Government of Canada for federal employees.”)

The Canadian Judicial Council did not respond to a query. The Canadian Superior Courts Judges Association referred questions from The Lawyer’s Daily to the Department of Justice, and to the Office of the Commissioner for Federal Judicial Affairs. No answers were given to the questions whether federally appointed chief justices have the authority to mandate judicial colleagues or court staff to disclose their vaccine status and impose workplace constraints if they won’t disclose, or unreasonably refuse to take the vaccine.

A constitutional expert and longtime watcher of the Canadian judiciary said it could well be that the federal judges are constitutionally immune from the vaccine mandate applicable to federal employees. “That may be the case although I think that would be a pretty tough political position for chief justices or the association for superior court justices to say, ‘We’re not going to do this’ when [for example] Doug Ford is saying it for his own caucus, and the whole point of vaccine mandates is to protect the safety of people in the workplace, people in the environment.”

Whatever constitutional justification the federal judiciary can validly put forward for the inapplicability of the federal vaccine mandate, the public would not likely be persuaded, said the law professor who did not wish to be named.

“It’s a really interesting legal argument. I think it’s really dangerous politically.”

The professor pointed out that chief justices of the country’s various courts have issued stringent practice directions for COVID-19 safety in their courts, with one provincial court judge last month citing for contempt a senior Edmonton defence counsel who refused her order to mask at the defence table in her courtroom.

“So how do you square judicial power to cite people for contempt for public violations [of health edicts] but refusing to impose a vaccine mandate for those public health requirements on the judges themselves?”

The law professor opined that the federal vaccine mandate “certainly” applies to the law clerks and other court staff who are federal employees. “Would the judges make the argument that the administrative part of judicial independence also applies to their staffs?” he queried. “What we’ve certainly seen in the last 25-30 years is more and more aggressive interpretations or positions relating to judicial independence, from the Provincial Judges’ Reference [to the Supreme Court] in 1997 onwards, [with respect to] control of the court, scheduling and things like that.”

As a practical matter, most judges are older and are likely already fully vaccinated, he observed. 

Editor’s note: This article has been updated to correct that the Federal Court has 54 members, including eight prothonotaries. The story was updated to clarify that an e-mailed statement came from the Office of the Chief Justice of the Federal Court.

Photo of Chief Justice of Canada Richard Wagner by Supreme Court of Canada Collection
Photo of Federal Court Chief Justice Paul Crampton by Andrew Balfour Photography

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