Judges are Split on Whether to Take Judicial Notice of Covid-19 Vaccine Efficacy

In this decision published online two days ago, Peterborough Superior Court Judge Charles Corkery refused to take judicial notice of Covid-19 vaccine efficacy. Judges are clearly breaking into two camps: those that are accepting of government policy on Covid-19 vaccines without question, and those that don’t. 

The central issue typically centers on the use of the evidentiary doctrine called “judicial notice.”  Judicial notice is an evidentiary principle that allows parties to dispense with proof over things that are well known.  If a lawyer is questioning a driver about why they couldn’t see the pedestrian during full daylight for an accident that occurred at noon, a judge would not stop the lawyer and demand proof be given that it was daylight out: the judge would simply take judicial notice of the fact that at noon, barring anything unusual, it would be light outside.  Judicial notice draws on common experience, common sense and/or common knowledge.

Many judges (and arbitrators) accept as fact that Covid-19 vaccines are safe, effective, and are necessary without the need for scientific proof, predominantly based on official government positions on the point.  If the government says so, presumably it becomes part of “common experience, common sense and/or common knowledge.”

But Justice Corkery questioned the appropriateness of using judicial notice in this way.  Justice Corkery is not alone in raising this question, however, as was revealed in the recent case of Inglis v Inglis, 2022 SKCA 82, where the Saskatchewan Court of Appeal reviewed many cases across Canada, the acceptance camp is undoubtedly the most predominant.  Justice Corkery described this acceptance camp’s use of judicial notice this way (at paragraph 34):

“In the cases cited in Inglis and other recent cases, judicial notice is taken of facts regarding COVID-19 and the COVID-19 vaccine based on representations by government public health authorities and the judicial notice taken in other cases.”

The ending observation that judges are taking judicial notice because prior judges took judicial notice of the efficacy of the Covid-19 vaccination in effect creates the symbiotic “common experience” or the “common knowledge” landscape.

Covid-19 vaccination issues arise in all spheres of law, but unequivocally most predominantly in the employment and family law sectors of our judicial system.  The case before Justice Corkery took place in the context of a family law dispute between two parents and a 12-year-old daughter who was stead-fast against receiving the Covid-19 vaccine.  The father brought to motion to obtain a court order requiring the daughter to receive the vaccine.  The mother supported the initiative, and indeed booked several appointments for the daughter, but unlike the father, the mother wanted to respect the wishes of her daughter, and not force her against her will, such that when the daughter balked at attending the bookings, the mother accepted the daughter’s decision: the father did not.

As Justice Corkery duly noted, the father was looking to make the court be the “bad guy” so that the parents could tell the daughter it wasn’t them, but it was the court that ordered her to get vaccinated.

No scientific evidence was tendered, and only one doctor’s opinion was provided effectively asserting that vaccines are recommended for people in the daughter’s age-group.  As such, Justice Corkery had to examine whether it was appropriate to take judicial notice of the efficacy of the Covid-19 vaccine in coming to his decision: ultimately Justice Corkery sided with the minority camp and provided a detailed explanation for why he considered it wrong and inappropriate for courts or tribunals to take judicial notice of Covid-19 vaccine efficacy.  In brief, Justice Corkery relied on the following:

1. as stated by the Ontario Court of Appeal in v. J.M., 2021 ONCA 150, “since judicial notice dispenses with the need for proof of facts, the threshold for judicial notice is strict;”
2. As stated by the Ontario Court of Appeal in v. Find, 2001 SCC 32, judicial notice cannot be taken of expert opinion evidence, where they said “expert evidence is by definition neither notorious nor capable of immediate and accurate demonstration. This is why it must be proved through an expert whose qualifications are accepted by the court and who is available for cross-examination” (at paragraph 49);
3. In Justice Corkery’s opinion, the minority of judges who refused to take judicial notice of Covid-19 vaccination efficacy seemed to more properly adhere to the principle that judicial notice should not be used for complex medical issues where judges have no sphere of expertise. These would include his fellow justices Breithaupt Smith J. in S.P. v. H.L.C., 2021 ONSC 8362 and Alex Pazaratz J. in J.N. v. C.G., 2022 ONSC 1198;
4. Adopting the reasoning of Pazaratz J in J.N. v. C.G (at paragraph 67), Justice Corkery agreed that there are many examples for why judges should be reluctant to take judicial notice of government sanctioned positions, such as:
   1. 1. 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.
      2. What about the Residential School system? For decades the 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.
      3. How about sterilizing Eskimo women? The same thing. The government knew best.
      4. Japanese and Chinese internment camps during World War Two? The 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.
      5. Few people remember Thalidomide. It was an experimental drug approved by Canada and countries throughout the world in the late 1950’s. It was supposed to treat cancer and some skin conditions. 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.
      6. On social issues the government has fared no better. 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. At any given moment, how many active complaints are before the courts across the Country, alleging government breaches of Charter Rights? These are vitally important debates which need to be fully canvassed.
      7. The list of grievous government mistakes and miscalculations is both endless and notorious. Catching and correcting those mistakes is one of the most important functions of an independent judiciary.
      8. And throughout history, the people who held government to account have always been regarded as heroes – not subversives.
      9. 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?
      10. Nobody is infallible.
      11. And nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review.

It will be interesting to see how things develop.  There is definitively an attractiveness to taking judicial notice of positions put forth by government and government agencies.  The presumption is that they are looking out for the best interests of society, a lot of time, money, and resources are spent on their work, assessment and opinions.  By accepting this “work,” it saves a lot of resources when judicial notice is taken of the conclusion reached through this work product.  Litigants do not have to retain experts, the courts do not have to spend additional time in each individual case to have experts testify and cross examined.  There is also consistency in result: court cases are not won or lost based on the resources available to a party to get more or better qualified experts.

Juxtaposed against this, however, is that government and government agencies do not always get things right.  Who are the gate-keepers if not the courts, or the official opposition, or the media, etc?  Many a case of government wrongdoing has been exposed through court intervention, or a whistle-blower, or an in-depth expose on television or in print media.  Thank goodness for this oversight.

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.  

Ultimately Justice Corkery ruled that based on the evidence before him, he could not come to the conclusion that ordering the twelve-year-old daughter to be vaccinated was in the best interest of the child.  At best, there was evidence that the vaccine was recommended, but that fell very short of saying it would be in the best interest of the child.  Indeed, a forced vaccination could arguably cause more harm than good, given the prospect that it could be very traumatic to the child who had no current desire to be vaccinated based on reasons that could not be considered outlandish by Justice Corkery.

M.M. v. W.A.K., 2022 ONSC 4580

https://www.canlii.org/en/on/onsc/doc/2022/2022onsc4580/2022onsc4580.html

 

UPDATE – February 21, 2023:

See today’s post entitled “A Court Reference Should be Called to Rule on Covid Vaccine Efficacy,” which comments on two recent court decisions that show the debate continues and hasn’t been completely resolved since this post originally aired on August 10, 2022 .  This leads me to posture that it may be long overdue for the Lieutenant Governor in Council to submit a reference question to the Ontario Court of Appeal, as empowered under section 8 of the Courts of Justice Act, for the purpose of having all the touted opinions on the efficacy of the Covid 19 vaccine, both for and against, tested in one place, under the rigours of cross-examination.