ONTARIO – “Throughout history, the people who held government to account have always been regarded as heroes – not subversives,” said Justice J. Christopher Corkery when ruling he wouldn’t force a child to get the COVID-19 vaccination.
The 15-page Ontario Superior Court decision came after a father tried to force his 12-year-old daughter to get the vaccine before the new school year, which the girl and her mother opposed. Her parents are separated and they have joint custody.
“When our government serially pays out billions of dollars to apologize for unthinkable historic violations of human rights and security – how can we possibly presume that today’s government ‘experts’ are infallible?” said Justice Corkery in his written Aug. 5 decision. “Nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review.”
Nobody is infallible
Justice Corkery said he shares the concerns expressed by Justice J. Pazaratz in a similar case with respect to the court taking judicial notice of government information.
“Why should we be so reluctant to take judicial notice that the government is always right?” asked Justice Corkery. “Did the Motherisk inquiry teach us nothing about blind deference to experts.
“Thousands of child protection cases were tainted – and lives potentially ruined – because year after year courts routinely accepted and acted upon substance abuse testing which turned out to be incompetent,” said Justice Corkery.
The Motherisk Lab at Toronto’s Hospital for Sick Children was shut down in 2015 after a 2014 review by retired Justice Susan Lang determined that the tests were inadequate and unreliable.
And “What about Residential School system?” asked Justice Corkery.
“For decades the [Canadian] government assured us that taking Indigenous children away – and being wilfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies.”
And, “How about sterilizing Eskimo women? The same thing. The [Canadian] government knew best.”
Justice Corkery also mentioned the experimental drug Thalidomide, which was approved by Canada and countries around the world in the late 1950’s.
“It was supposed to treat cancer and some skin conditions,” said Justice Corkery. “Instead it caused thousands of birth defects and dead babies before it was withdrawn from the market. But for a period of time government experts said it was perfectly safe.”
Justice Corkery also pointed to the Japanese and Chinese internment camps during the Second World War.
“The [Canadian] government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.”
‘Hope my wishes respected’: Daughter
In a two-page note dated Jan. 5 the daughter, whom the court called “S.” said she doesn’t want a “COVID-19 vaccine as it has had negative effects on children.”
She told the court she is mature enough to make her own decision and her mother has asked her countless times if she wanted the vaccine or if she has changed her views.
S. said she read many articles “based on” the effects of the vaccine on children.
“If you still deem me as ‘not mature enough’ you should be able to tell my level of maturity by how I write. This is me talking, not my mother.
“This is my final decision,” S. wrote to the court. “I do not want the vaccine. I hope my wishes will be respected.”
In his ruling, Justice Corkery said he found S. to be “quite mature in her ability to articulate and communicate…clear in her reasoning,” that he was satisfied S. is able to reasonably form her own opinions, and she is a “mature minor” as outlined in A.C. v. Manitoba [Director of Child and Family Services], and is capable with respect to treatment as outlined in the Health Care Consent Act.
“She is mature enough to accept or refuse treatment,” said Justice Corkery. “Having regard to S’s age and her maturity, I am able to ascertain her views and preferences. She is strongly opposed to being vaccinated against COVID-19 and wishes her view to be respected.”
Vaccinated are still getting covid: Justice Cockery
S. provided the court with some of her reasons for not wanting the vaccine and that people who have received both shots and the booster are still getting COVID-19.
Justice Corkery agreed.
“Nearly half the people who are getting COVID-19 have the vaccine,” he said in his ruling. “She has heard from friends that their doctors are advising that children not get vaccinated. She has heard about negative effects adults have experienced from the vaccine: hives, rashes, heart problems, menstrual issues.”
Doctor's words sound like public health policy recitation: Justice Corkery
S.’s father had their family doctor provide a note to the court highly recommending that S. get the vaccine, adding that she has no known contraindications for the vaccine.
Justice Corkery, however, said the way the note was worded the doctor’s “statement appears to be a recitation of public health policy. It is not clear that this is even the doctor’s own recommendation.”
‘Facts’ relating to covid are changing
Justice Corkery pointed out the constantly changing “opinions” about COVID-19 policies, saying there was a lack of consensus or consistency.
“How can you take judicial notice of a moving target?” he asked.
In his decision, Justice Corkery pointed out that during the past two years of the pandemic, governments around the world – and within Canada – have constantly changed their health directives about what we should or shouldn’t be doing. What works and what doesn’t.
“And the changes and uncertainty are accelerating with each passing newscast. Not a day goes by that we don’t hear about COVID policies changing and restrictions being lifted. “
Justice Corkery said government experts “sound so sure of themselves” in recommending the current vaccines but they were equally sure when they told everyone to line up for AstraZeneca.
“Now they don’t even mention that word.
“Even Pfizer has changed its mind,” added Justice Corkery. “It recently approved vaccines for kids under five. Then more recently the company changed its mind.”
Justice Corkery said none of this was meant as a criticism and “everyone is doing their best with a new and constantly evolving health crisis,” but asked, “how can judges take judicial notice of ‘facts’ where there’s no consensus or consistency?”
How many vaccines/boosters are enough?
In his filing with the court, S.’s father had asked the court for an order that his children receive the current COVID-19 vaccine and all recommended booster vaccines.
Justice Corkery, however, asked: Which recommended booster vaccines? When? How many? What will they contain? Who will decide?
Judicial oversight or forever government control?: Justice Corkery
Justice Corkery asked if there will be an opportunity for future judicial oversight or “will this simply be a forever commitment controlled by the government?”
He questioned the health implications if children receive the current vaccine, but skip some or all of the boosters? What future COVID variant will the boosters guard against?
“We already seem to be using the Delta vaccine to fight the Omicron variant,” said Justice Corkery in his ruling. “Will future boosters continue our pattern of using old medicine to fight new viruses?”
He added, “These are all valid questions, requiring answers which are currently unavailable.”
Justice not prepared to take judicial notice
In his written decision, Justice Corkery said he wasn’t prepared to take judicial notice of any government information with respect to COVID-19 or the COVID-19 vaccines.
“If you can’t take judicial notice of the present, you can’t take judicial notice of the future.”
He said to make a ruling he would have had to determine how safe, how efficacious the vaccine is for S.
“Does safe mean there are no side effects?” he asked. “Is the vaccine effective in protecting her from contracting COVID-19, from spreading it, from dying from it, from severity of symptoms? As with informed consent, there are many factors that must be carefully considered in weighing risks and benefits.”
Justice Corkery added that he can’t find that the scientific facts are notorious or that “the government is a source of indisputable accuracy.”
Canadian government mistakes
Justice Corkery said the Canadian government hasn’t “fared” better when it comes to social issues.
“For more than a century, courts took judicial notice of the fact that it was ridiculous to think two people of the same sex could get married,” said Justice Corkery. “At any given moment, how many active complaints are before the courts across the country, alleging government breaches of Charter Rights?”
Justice Corkery said the important function of an independent judiciary is “catching and correcting” the grievous government mistakes and miscalculations.
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