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CONSIDERATIONS PERTAINING TO COVID-19 TESTING FOR JUSTICE SYSTEM PARTICIPANTS

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 paper is not intended to replace applicable health and safety legislation and regulations, nor do the contents therein ensure compliance with those enactments. The provinces and territories have primary responsibility for the administration of public health measures, including testing, within their jurisdictions. Awareness and observance of legal responsibilities must form an integral part of court operations in response to COVID-19. Any protocols developed in this area should be reviewed and adapted to meet local circumstances and needs, in collaboration with local and/or provincial/territorial health authorities.

SUMMARY

A recent communiqué of the Action Committee encourages court officials to collaborate with local, provincial and territorial public health authorities to examine how justice system participants involved in court proceedings could access priority testing and results as well as rapid tests. This document is intended to facilitate additional dialogue between officials on that matter.

Three relevant types of tests are discussed: the laboratory-based Polymerase Chain Reaction (PCR) test, the rapid nucleic acid test and the rapid antigen test. A simplified comparison chart from Health Canada can be found at Annex 1.

A survey of Canadian jurisdictions on access to priority (laboratory-based PCR) testing and results produced the following best practices:

  • designating a responsible court official to liaise with the local public health authority to develop and implement a protocol to establish priority testing for justice system participants; and
  • arrangements to identify jurors specifically as candidates for priority testing and results, to facilitate the resumption of in-person jury trials.

Potential scenarios for the deployment of rapid tests in a court setting include but are not limited to:

  • testing symptomatic justice system participants to isolate them more quickly;
  • repeated testing of court officials, counsel, law enforcement and corrections officers involved in in-person court proceedings, especially in jurisdictions with higher prevalence of infection;
  • repeated testing of potential jurors to facilitate a return to in-person jury trials; or
  • repeated testing of itinerant judges and court personnel who travel to remote and rural regions where an outbreak could overwhelm local capacity.

Background

In January 2021, the Action Committee on Court Operations in Response to COVID-19 (“Action Committee”) released an administrative communiqué entitled “The Action Committee Invites Court Officials and Public Health Authorities to Engage in a Dialogue to Better Protect Justice System Participants”. In its communiqué, the Action Committee strongly encouraged continued and proactive dialogue between court officials and federal, provincial, territorial and local governments and public health authorities to examine, among other matters, how justice system participants involved in court proceedings could access priority testing and results as well as rapid tests. This document is intended to facilitate additional dialogue between officials on that matter.

Relevant Types of COVID-19 Testing

While Health Canada has authorized numerous tests to detect SARS-CoV-2 (“COVID-19”) over the course of the pandemic, the focus of this document is on two main types of tests: (1) the laboratory-based molecular Polymerase Chain Reaction (PCR) test and (2) “point of care” tests, referred to as “rapid tests” for the purposes of this document. A quick Health Canada guide to these tests can be found at Annex 1.

A PCR test is sensitive to original viral ribo-nucleic acid (RNA). Laboratory-based PCR tests require a sample from an individual, collected by a health professional. Test results can take one or more days to obtain from a laboratory, depending on demand and capacity, but this test is considered the “gold standard” for diagnostic COVID-19 testing in Canada given its sensitivity and accuracy. An individual can test positive for COVID-19 with a PCR test but no longer be contagious as the viral RNA may linger in the body beyond the contagion period.

Rapid tests come in two main forms: nucleic acid tests and antigen tests. A simplistic way of distinguishing between the two is that the former test for infection, while the latter test for infectiousness. The former, like laboratory-based PCR tests, detect nucleic acids, but samples are collected and results analyzed on site (the “point of care”), rather than in a medical/laboratory setting. Rapid antigen tests detect viral protein, and sample collection and results analysis also take place on site. Rapid antigen tests perform optimally when the viral load is higher in the individual, usually in the early phase of the disease, which is typically when an individual is most contagious. A negative test does not guarantee a person is COVID-free; the virus may be latent or beyond the detection thresholds of a rapid test. This risk may be partially mitigated by repeated testing.

Results for rapid tests can be obtained within hours, sometimes minutes. Rapid tests cost less than laboratorybased PCR tests. Depending on the type of test and required type of sample, sample collection for rapid testing in general does not necessarily have to be undertaken by a health care professional; however, all rapid tests approved to date for use in Canada do require administration by a health care professional. They are considered less sensitive or accurate than a laboratory-based PCR test. Thus, the interpretation of the results, and decisions based upon them, must take into account other factors such as the symptoms of the individual, possible exposure, purpose of the testing, disease prevalence in the community and more. In some cases, individuals who test positive and those with negative results but other risk factors may be sent for a laboratorybased PCR test for verification purposes.

Access to Priority Testing and Results

As noted above, it can take days for a laboratory to process the results from a PCR test. Due to issues of demand and capacity, individuals may also experience wait times before they can obtain a test, or tests may only be available to individuals who meet certain criteria. When the individuals seeking these tests are justice system participants, these delays may have negative consequences on court proceedings.

Canada’s courts are crucial in supporting community and national-level recovery, restoring economic activity, and strengthening social cohesion. In its document “Guidance on Essential Services and Functions in Canada During the COVID-19 Pandemic,” Public Safety Canada identifies justice system participants as performing an essential service or function. Accordingly, the Action Committee recommends that provincial/territorial and local public health officials, working in cooperation with court officials, examine how justice system participants involved in court proceedings could access priority testing and results. Based on current practices in some Canadian jurisdictions, this may include:

  • designating a responsible court official to liaise with the local public health authority to develop and implement a protocol to establish priority testing for justice system participants; and
  • arrangements to identify jurors specifically as candidates for priority testing and results, to facilitate the resumption of in-person jury trials.

Potential Deployment of Rapid Testing in the Court Setting

While the laboratory PCR test remains the gold standard, there are indications the rapid test will increasingly be used to facilitate safe re-opening. The federal government is investing in and acquiring a number of technologies, including rapid tests, to stop the spread of COVID-19. Health Canada and the Public Health Agency of Canada (PHAC) have issued guidance documents on the use of rapid tests, including a January 2021 report from the COVID-19 Testing and Screening Advisory Panel entitled “Priority Strategies to Optimize Testing and Screening for COVID-19 in Canada” (see “Resources and References”). Since late 2020, many Canadian jurisdictions have received supplies of rapid tests, with a goal of identifying and isolating cases of COVID-19 in key sectors, including hospitals, long-term care facilities, assessment centres, manufacturing, warehousing, supply chain and food processing. As the availability and use of innovative testing options expand, the Action Committee has considered how rapid tests could be used in the court setting, with the goals of reducing transmission, preventing outbreaks, building public confidence that courts are safe to attend in person, and mitigating delays to court proceedings. Potential uses include, but are not limited to:

  • testing symptomatic justice system participants to isolate them more quickly;
  • repeated testing of court officials, counsel, law enforcement and corrections officers involved in inperson court proceedings, especially in jurisdictions with higher prevalence of infection;
  • repeated testing of potential jurors to facilitate a return to in-person jury trials; or
  • repeated testing of itinerant judges and court personnel who travel to remote and rural regions where an outbreak could overwhelm local capacity.

There are a number of foreseeable challenges and outstanding questions related to the use of rapid tests in this setting, including: the availability and distribution of rapid tests; identifying the most suitable rapid test for the intended purpose; identifying who would administer the rapid tests for justice system participants; appropriate training and appropriate biosafety measures (e.g. personal protective equipment) to safely administer rapid tests, handle samples and dispose of testing materials; who might be the candidates for testing in any given scenario; documentation/identification required to demonstrate eligibility for a test; establishing parameters for compliance (voluntary/mandatory); privacy considerations; and the need for clear communications about the limitations of rapid testing, interpretation of positive and negative test results, and the importance of maintaining public health precautions and professional medical oversight for such testing. Pilot projects to work through these issues and to test the utility of rapid testing for justice system participants may be a useful starting point in the short term. Design and administration of such initiatives must be done in collaboration with and under the supervision of local and/or provincial/territorial health authorities.

All those who gather in Canada’s courts must continue to have confidence that appropriate measures are being taken to protect their health and safety. To meet this expectation, all available options should be explored.

Resources and References

“Conducting COVID-19 PCR Testing at [Public Health Ontario],” Public Health Ontario.https://www.publichealthontario.ca/en/diseases-and-conditions/infectious-diseases/respiratory-diseases/novelcoronavirus/lab-testing-ontario/covid-19-pcr-testing

“Guidance on Essential Services and Functions in Canada During the COVID-19 Pandemic,” Public Safety Canada. https://www.publicsafety.gc.ca/cnt/ntnl-scrt/crtcl-nfrstrctr/esf-sfeen.aspx#:~:text=Public%20Safety%20Canada%20has%20developed,and%20functions%20to%20ensure%20t he

“Interim guidance for the detection of SARS-CoV-2 with the Abbott Panbio COVID-19 antigen rapid test,” Canada Communicable Disease Report, 2021 vol 47, Public Health Agency of Canada. https://www.canada.ca/en/public-health/services/reports-publications/canada-communicable-disease-reportccdr/monthly-issue/2021-47/issue-1-january-2021/interim-guidance-detection-sars-cov-2-abbott-panbioantigen-rapid-test.html

“Interim Guidance on the Use of Rapid Antigen Detection Tests for the Identification of SARS-CoV-2 Infection,” Public Health Agency of Canada. https://www.canada.ca/en/public-health/services/diseases/2019-novelcoronavirus-infection/guidance-documents/use-rapid-antigen-detection-tests.html

“Invitation to a Dialogue to Better Protect Justice System Participants,” Action Committee on Court Operations in Response to COVID-19. https://www.fja.gc.ca/COVID-19/pdf/Communiqu%C3%A9%20- %20DIALOGUE%20TO%20BETTER%20PROTECT%20JUSTICE%20SYSTEM%20PARTICIPANTS.pdf

“Office of Provincial Health Officer Notice, Government of British Columbia”. January 29, 2021. Example of rapid testing in correctional facilities. English only. https://www.provincialcourt.bc.ca/downloads/Announcements/2021/Announcement%2029-01-2021%20- %20OPHO%20Notice%20re%20Corrections%20Outbreaks.pdf

“Pan-Canadian COVID-19 Testing and Screening Guidance: Technical Guidance and Implementation Plan,” Public Health Agency of Canada. https://www.canada.ca/en/health-canada/services/drugs-healthproducts/covid19-industry/medical-devices/testing/pan-canadian-guidance.html

“Priority Strategies to Optimize Testing and Screening for COVID-19 in Canada: Report,” Health Canada. January 2021. https://www.canada.ca/en/health-canada/services/drugs-health-products/covid19- industry/medical-devices/testing-screening-advisory-panel/reports-summaries/priority-strategies.html

“Protocol for Communication and Testing Related to COVID-19 in Courthouses,”Government of British Columbia. January 19, 2021. https://www2.gov.bc.ca/gov/content/justice/covid-19/covid-courtoperations#protocol and http://www.bccdc.ca/Health-InfoSite/Documents/COVID_public_guidance/Protocol_Communication_Testing_Court_Facilities.pdf

ANNEX 1: SUMMARY OF DIFFERENCES BETWEEN CURRENTLY AVAILABLE LAB-BASED PCR, POINT-OF-CARE NUCLEIC ACID TEST AND RAPID ANTIGEN TESTS