Request for disclosure of Covid vaccination status
On September 29, 2021, Judge Rickcola Brinton of the Provincial Court of Nova Scotia received a troubling email. (Then) Chief Judge Pamela Williams of the Provincial Court of Nova Scotia wanted to know if the judges under her authority would disclose their Covid vaccination status to each other and to the Nova Scotia Barristers’ Society.
Forced disclosure raises privacy and equality concerns
Brinton was concerned about privacy and equality. Could forcing people to disclose their Covid vaccination status have a negative impact on Canadians, especially those in marginalized communities? Three days after receiving the email from Williams, Brinton responded, “I realize I may be in the minority…as I have concerns with medical privacy,” she wrote. “I also know that the vaccination mandates and passports may be disproportionately impacting racialized communities. And as an essential service, will we be creating a two-tiered society for those who already feel as though we are not all free to serve them?” She thus declined to disclose her vaccination status.
An offer to be tested for Covid is made and rejected
In an effort to persuade Brinton to disclose her Covid vaccination status to judges of the Provincial Court, Williams met with Brinton on October 7, 2021. Brinton would not be moved. She explained that her resolve to protect her medical privacy was a matter of conscience and religious conviction. Out of concern for the wellbeing of the court, Brinton offered to be tested for Covid as often as needed, but Williams rejected her proposal.
For unrelated reasons, Brinton went on short-term disability leave at the end of October. She had submitted the required Proof of Illness form – completed by her doctor.
Only fully vaccinated judges would be assigned to sit in courtrooms
On November 21, 2021, Williams sent an email to all judges stating that “only fully vaccinated judges will be assigned to sit in courtrooms.” Four days later, she issued a public statement that “[a]ll Provincial Court judges presiding in courtrooms, both now and in the future, are fully vaccinated.” A few months passed. On February 22, 2022, Williams wrote Brinton, stating that she would not approve the continuation of her short-term disability leave unless Brinton provided evidence of her disability. She also wrote that if Brinton continued to refuse disclosing her Covid vaccination status, she would be “considered non-vaccinated and unable to preside over in-person trials and sentencings in the Court Room.” Williams went on to say that she would have “no recourse other than to suspend [Brinton] and refer the matter to the Judicial Council,” which handles misconduct complaints against judges.
Doctor declines to disclose private medical information
On March 27, 2022, Williams wrote to Brinton’s doctor requesting that he supply her with the details of Brinton’s medical issues and her vaccination status. The doctor called Brinton to ask her permission to disclose this information. Brinton did not consent. A second time, Williams’ office called the doctor’s office requesting information. Again, Brinton did not consent. Meanwhile, Brinton had been approved for long-term disability leave and had provided the necessary information to her benefits provider.
Brinton has not received any communications from Chief Judge Williams since April 2022. Williams’ term as Chief Judge concluded in August 2023, although she continues to sit on the provincial bench.
Judicial independence an important principle
Judicial independence is a crucial and ancient constitutional principle, predating the Canadian Charter of Rights and Freedoms. Brinton raised concerns about infringement on medical privacy, as well as the impact disclosing her Covid vaccination status would have on the independence and impartiality of herself and the Court. Independence and impartiality are particularly important in cases where courts are asked to rule on issues regarding Covid vaccination. For example, courts have been asked to rule on whether an employee who is terminated for not being vaccinated for Covid is eligible for EI benefits, or whether it is legal for post-secondary institutions to expel or withdraw students from their programs for not being vaccinated. As a result of raising such concerns, Brinton was threatened with suspension and disciplinary action.
Brinton’s lawsuit names as defendants the Honourable Pamela S. Williams, the Office of the Chief Judge of the Provincial Court of Nova Scotia, the Provincial Court of Nova Scotia, and the Attorney General of Nova Scotia representing His Majesty the King in Right of the Province of Nova Scotia.
