November 28, 2021

Vaccinating Judges, and the Rule of Law During the Panedemic

Thanks to the Covid-19 pandemic, we are in the midst of a very concentrated societal experiment of sorts regarding law making and the legitimacy of the rule of law. An issue that arose this week in Nova Scotia regarding the vaccination status of Judges is illustrative of some of the developing tensions.

Justices of the Supreme Court and Court of Appeal in NS have refused to disclose their vaccine policies, citing their independence from the legislative branch of government, and the possibility that they may be called upon in future to hear cases on the validity of pandemic-related laws. The government and public health officials would prefer if they did disclose their statuses, and assert that judges should be vaccinated like everyone else.

Before delving into the relevant legal elements of this scenario, the first point to make is that one could safely predict that these Justices are almost certainly all vaccinated, or otherwise compliant with public health rules for those with medical exemptions. Presuming this to be the case, why would they not just tell us their vaccination policy?

We are currently subject to a whole set of new laws, which have been developed and implemented in relative haste, without the usual deliberation and up-front oversight. We have isolation, travel restriction, social distance, gathering limits, and proof of status rules that were not in place just two years ago, which are being changed on the fly as our understanding of the pandemic evolves. They have been imposed along with a wide range of enforcement mechanisms, not all of which seem to be fairly or consistently applied.

These restrictions on our freedom are currently being justified (implicitly, if not explicitly) on the basis of Section 1 of the Charter, which says that our rights and freedoms are “subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society”. Essentially, it means that if the best available scientific evidence supports the limit, and the balance of public health and safety versus personal freedom seems right, the law will survive a Court challenge.

Eventually, however, when the pandemic moderates, or treatment methodologies improve significantly, restrictions will need to be lifted in order to restore the proper balance between public safety and personal freedom. When that time comes, what will happen? History and human nature suggest we should not presume that such lifting of restrictions will be done eagerly or voluntarily by government actors, many of whom will by now have observed the popularity of leaders who have imposed strict measures, and some of whom will simply be reluctant to cede authority. So, in order for our freedoms to be restored, Courts may need to decide whether the restrictions continue to be justified in a free and democratic society.

If, or when, such questions are to be decided by our Courts, we must be confident that our Justices are neutral as to the issue. Any litigant that was bringing forth a case on removing or amending restrictions would certainly be tempted to argue that their position aligned with those of the judicial council, if that was the case, and therein lies the problem. Judges are supposed to be impartial arbiters, not participants who might affect the outcome through their own personal choices, and there is a danger to the justice system, and the balance of power in our government, in attempting to blur that line.

Lawyers in Canada will be familiar with the recent issue in Manitoba where lawyer John Carpay, who was arguing a Covid-19 lockdown case, hired a private investigator to follow the Judge hearing the case, Chief Justice Glenn Joyal, to see whether he was following proper isolation protocols. This was considered a very serious ethical violation, and the case properly drew criticism from judicial and lawyer organizations across the country, as well as from many individuals in the legal world.

Some lawyers and freedom advocates have suggested that we have already reached the point where pandemic restrictions and vaccine mandates should be eliminated. This week, a group of 250+ Canadian lawyers issued an opinion piece and petition, saying that vaccine passports and mandates should be ended now, due to their oppressive and disproportionate nature. I understand the point they are attempting to make, but they overstate their case, and I do not find it persuasive. The evidence, particularly when we account for the global reach of the virus, still broadly supports many of the measures currently in place.

Yet, there are important and unexamined issues. The Canadian Civil Liberties Association, lead by Former Ontario AG, Michael Bryant, has been saying that our courts are not hearing cases on Covid-19 restrictions quickly enough to be meaningful in real time compared to other countries. We have had an ex parte injunction hearing in Nova Scotia against a planned lockdown protest, and one in Newfoundland regarding mobility rights, but nothing at the appellate level.

Another thing that has also gone relatively unnoticed is that during Covid-19 briefings, Ministers of Justice have been almost entirely absent, when they should be alongside public health officials, explaining why new measures are needed, how they are consistent with accepted legal norms, and how they take into account our Charter rights. The absence of such explanations has fostered much of the resistance and backlash we have been witnessing. A law which is untested, and insufficiently explained, will draw more questions about its legitimacy. All of this undermines the rule of law.

Public polling does not support the notion that civil liberties restrictions are currently seen as oppressive or unreasonably invasive, but polling can only guide us so far, and people may be fearful of speaking up out of a legitimate fear of job loss, as happened to Dr. Chris Milburn. Therein lies part of the problem. Much of the decision making around vaccine mandates and other measures are being driven by polling and perceived public opinion, inaccurate though it may be, rather than the best science.

Like many issues, ranging from same sex unions to cannabis legalization to assisted death to indigenous rights, it often falls to courts and public litigants to push for our collective and individual Charter rights to be properly articulated and respected. It seems predictable, or at least not far-fetched, to expect that the end of vaccine mandates and proofs of vaccination status will require litigation, rather than expecting political and public health leaders to accept levels of risk that will certainly come with ending such policies.

When that litigation comes, the less we know about Justices’ personal or institutional views on vaccines and lockdowns, the better. That helps maintain their independence when it comes to making decisions on issues that affect all of us, and which may not be popular with cautious public health officials or the government. In the meantime, we can trust that Judges have a policy that is designed to keep staff, and those who appear in court safe, and which allow our justice system to function. We do not need to see the policy in order to trust that it is appropriate for the circumstances.