In my earlier post dated August 10, 2022, entitled “Judges are Split on Whether to Take Judicial Notice of Covid-19 Vaccine Efficacy”, I outlined the brewing conflict between judges on whether to take judicial notice of the efficacy of the Covid 19 Vaccine. I concluded that segment as follows:
bbbbb“It is a delicate balance for certain, and it will likely need appellate intervention to determine whether the courts should accept government medical opinion on Covid-19 vaccine efficacy without the need for any medical evidence to be tendered and subjected to the rigours of validation typically demanded in a court proceeding. Given the current landscape, the outcome for litigants seems to be largely dependent on which judge is assigned to the case and their respective views on using judicial notice to establish Covid-19 efficacy.”
Fast forward six (6) months later, and there is still debate. The Ontario Court of Appeal released a decision on February 3rd 2023 purportedly providing very clear guidance to the legal community: the courts should accept and take judicial notice of the official positions taken by public health officials on Covid-19 vaccine efficacy (J.N. v. C.G., 2023 ONCA 77). Despite this “guidance,” a Superior Court judge, days later, refused to abide by this pronouncement, and ruled that in the case before him, a full trial was required to debate the efficacy of the Covid vaccines (J.W.T. v. S.E.T., 2023 ONSC 977).
By way of background, the recent February 3rd appellate decision stemmed from the lower court ruling made by Justice Pazaratz (more fully discussed in my post entitled “Judges are Split on Whether to Take Judicial Notice of Covid-19 Vaccine Efficacy”). In brief, it was a vaccine hesitant mother who tendered streams of documents downloaded from the internet that spoke about, amongst other things, the dangers of the vaccine and why they should not be used, administered or taken. The judge held that this documentation was sufficient to question the efficacy of the vaccine which led to a decision that favoured the mother.
The appellate court, rightly in my view, concluded that it was wrong for the judge to accept and rely on that internet paper dump: none of that material could be tested, and hence the evidence was weak, if not flatly being no evidence at all. The lower court decision could have been set aside on this error alone.
However, the appellate court did not stop there, and they went further by asserting, if you will, that even if the mother came to court with medical reports signed by medical professionals, addressing the same concerns about the efficacy of the vaccines as contained in the internet dump of documents, those reports would be useless because the only governing opinion is that of the public health officials on the point.
In my opinion, this is a very profound pronouncement because it too suffers from the very same inherent short-comings: an opinion that cannot be tested. What does the court, as the trier of fact, know about how the data was interpreted by public health officials, or what data was looked at, or what data was ignored, or whether there was undue influence or bias in the opinions, etc. The answer is an unequivocal “nothing.” As such, it is brazen, in my opinion, to make leaps-of-faith (that public health officials get everything right) the governing law in Ontario.
As I noted previously, it is indeed a delicate balance. On the one hand there is too much waste debating the issue countless times, which makes taking judicial notice of official public health positions very attractive, juxtaposed against the potential danger in completely eviscerating any judicial scrutiny over the actions of government agencies and employees.
I believe that the Lieutenant Governor in Council owed it to the citizens of Ontario, as well as the judiciary, to call a reference on the issue. Although section 8 references under the Courts of Justice Act, R.S.O. 1990, c. C.43 (the “CJA“) are typically used for constitutional questions, the wording of section 8 doesn’t restrict court references in this way. Indeed, section 8 starts out by stating “the Lieutenant Governor in Council may refer any question to the Court of Appeal for hearing and consideration.” (emphasis added). Subsection 8(4) makes it a requirement that the Attorney General of Canada be notified and entitled to participate “if the question relates to the constitutional validity or constitutional applicability of an Act…,” (emphasis added) which implicitly contemplates that some questions referred to the appellate court by the Lieutenant Governor in Council may not be about a constitutional question.
Covid-19 vaccination inundated society, which in sequence inundated the courts. An issue like this is a once in a generation type event, with significant impact across the province as it relates to individuals, families and businesses. It would have behoved those in control (at least provincially) to call a reference to have one primary hearing before the Ontario Court of Appeal on the issue of Covid-19 vaccination efficacy: a forum where the Court of Appeal could hear from public health officials, a select few proponents and opponents to the Covid 19 vaccines, where all the theories, data, and hypothesis could be rigorously tested under cross-examination.
Indeed, subsections 8(5) and (6) of the CJA specifically empower the Ontario Court of Appeal to “direct that any person interested, or any one or more persons as representatives of a class of persons interested, be notified of the hearing and be entitled to make submissions to the court,” and “if an interest affected is not represented by counsel, the court may request counsel to argue on behalf of the interest and the reasonable expenses of counsel shall be paid by the Minister of Finance.”
It is beyond debate that opinions, in general, are of little value unless those opinions are put through the rigours of cross-examination: and that is the case for both sides of the debate. Once all the medical opinions are fully vetted, the appellate court would be in a position to confirm through a reference decision whether the evidence bore out the interpretation tendered by public health officials, and direct all judges to accept, or reject, the public health ordinances without requiring individual litigants to rehash the issue. In this way, much is accomplished:
- duplicity is avoided;
- consistency in outcomes is promoted; and
- the results are grounded on tested testimony and not just leaps-of-faith (promoting confidence in the system).
The Attorney General ought to be very supportive of this initiative since it would promote the goals set out in section 71 of the CJA, which reads:
71 The administration of the courts shall be carried on so as to,
(a) maintain the independence of the judiciary as a separate branch of government;
….
(c) encourage public access to the courts and public confidence in the administration of justice;
(d) further the provision of high-quality services to the public; and
(e) promote the efficient use of public resources. 2006, c. 21, Sched. A, s. 14.
Given the recent Ontario Court of Appeal decision, public health officials in effect now operate with impunity since the appellate court has essentially taken the position that the orders, rulings, directives, and conclusions emanating from public health officials are beyond judicial oversight. Against this backdrop it may be no surprise why some judges are still not convinced to follow the recent appellate court decision.
It all comes down to testing the theories to gain public (and perhaps judicial) confidence. A fulsome enquiry is required because currently medical professionals and academics on both sides of the table can assert and flout positions with impunity – no one is testing what they are saying. Nothing would be better than to shut down the naysayers if their facts, analysis, or theories are wrong or faulty, but equally, nothing would be better that to learn that the government officials were making ill informed decisions that were not justified using sound scientific reasoning and methodologies.
Regrettably, it is very unlikely that a section 8 reference to the Court of Appeal will be called (absent public outcry), and it is equally unlikely that the recent Ontario Court of Appeal ruling will be appealed to the Supreme Court of Canada given that the defeated litigant (the mother) is self-represented, although it remains possible that someone will take on her appeal. If it were to reach the Supreme Court of Canada, it would indeed be interesting to see whether the highest court in the country is like-minded and supportive of the view that government public health officials are free from judicial oversight or scrutiny.
Court of Appeal Case:
J.N. v. C.G., 2023 ONCA 77
https://www.canlii.org/en/on/onca/doc/2023/2023onca77/2023onca77.html
Decision not Following Court of Appeal:
J.W.T. v. S.E.T., 2023 ONSC 977
https://www.canlii.org/en/on/onsc/doc/2023/2023onsc977/2023onsc977.html