[Legal] Court Case: Separated Parents on Kids getting C19 Injections

[54] But what if the objecting parent presents evidence which potentially raises some serious questions or doubts about the necessity, benefits or potential harm of COVID vaccines for children?
a. Clearly we shouldn’t be too quick to embrace the naysayers.
b. But should we banish them? Without hearing from them?
c. Should we stifle and forbid a reasonable opportunity to present and test evidence, and make submissions?
d. There are obvious public policy reasons to avoid recklessly undermining confidence in public health measures.
e. But that has to be weighed against our unbridled obligation to leave no stone unturned, when it comes to protecting children.

[55] For example, the mother presented a detailed fact sheet from Pfizer. This isn’t one of the fringe websites dismissed in the other cases. It’s Pfizer! The people who make the vaccine.

[56] Under the heading “What Are The Risks of the Pfizer-BioNTech COVID-19 Vaccine”, the company says:

There is a remote chance that the Pfizer-BioNTech COVID-19 Vaccine could cause a severe allergic reaction. A severe allergic reaction would usually occur within a few minutes to one hour after getting a dose of the Pfizer-BioNTech COVID-19 Vaccine. For this reason, your vaccination provider may ask you to stay at the place where you received your vaccine for monitoring after vaccination. Signs of a severe allergic reaction can include:

• Difficulty breathing
• Swelling of your face and throat
• A fast heartbeat
• A bad rash all over your body
• Dizziness and weakness
• Myocarditis (inflammation of the heart muscle) and pericarditis (inflammation of the lining outside the heart) have occurred in some people who have received the Pfizer-BioNTech COVID-19 Vaccine. In most of these people, symptoms began within a few days following receipt of the second dose of the Pfizer-BioNTech COVID-19 Vaccine. The chance of having this occur is very low. You should seek medical attention right away if you have any of the following symptoms after receiving the Pfizer-BioNTech COVID-19 Vaccine:
• Chest pain
• Shortness of breath
• Feelings of having a fast-beating, fluttering, or pounding heart.

Side effects that have been reported with the Pfizer-BioNTech COVID-19 Vaccine include:

• severe allergic reactions
• non-severe allergic reactions such as rash, itching, hives, or swelling of the face
• myocarditis (inflammation of the heart muscle)
• pericarditis (inflammation of the lining outside the heart)
• injection site pain
• tiredness
• headache
• muscle pain
• chills
• joint pain
• fever
• injection site swelling
• injection site redness
• nausea
• feeling unwell
• swollen lymph nodes (lymphadenopathy)
• diarrhea
• vomiting
• arm pain
• These may not be all the possible side effects of the Pfizer-BioNTech COVID-19 Vaccine. Serious and unexpected side effects may occur. Pfizer-BioNTech COVID-19 Vaccine is still being studied in clinical trials.

[57] It’s very hard to fault a parent for being worried about such an ominous list of potentially very serious side effects.

[58] Several of the earlier decisions requiring children to be vaccinated have noted that the evidence presented by the objecting parent was not reliable because the authors’ credentials were either not-established or non-existent.

[59] But in this case, none of the materials presented by the mother are from fringe organizations or dubious authors. To the contrary, the mother quotes extensively from leaders in the medical and scientific community.

[60] For example, the article submitted by the mother “Are People Getting Full Facts on COVID Vaccine Risks?” quotes Dr. Robert W. Malone, the inventor of the mRNA vaccine. Whether he is right or wrong about the current use of COVID vaccines is a matter for discussion and determination. But with his credentials, he can hardly be dismissed as a crackpot or fringe author. The mother referred to the following excerpt from the article:

The original inventor of the mRNA vaccine (and DNA vaccine) core platform technology currently used to create the vaccines is Dr Robert W Malone. Dr Malone has been expressing serious concerns about how therapeutic approaches that are still in the research phase are being imposed on an ill-informed public. He says that public health leadership has, “stepped over the line and is now violating the bedrock principles which form the foundation upon which the ethics of clinical research are built“.

Dr Malone asks why health leaders seem to be so afraid of sharing the adverse event data. He says, “Why is it necessary to suppress discussion and full disclosure of information concerning mRNA reactogenicity and safety risks?”

He goes onto say that we should be analysing the safety data and risks vigorously. Again he asks, “Is there information or patterns that can be found, such as the recent finding of the cardiomyopathy signals, or the latent virus reactivation signals? We should be enlisting the best biostatistics and machine learning experts to examine these data, and the results should — no must — be made available to the public promptly”.

For any drug it has always been important to have systems in place for monitoring adverse events. However, for an experimental, genetic modifying approach that has not been fully tested, and where the public are effectively the guinea pigs, this information should be immediately and readily available. As previously reported…the fact that it is so difficult to access and make sense of …reporting systems – along with low reporting simply raises further concern about what is actually happening.
. . . .
Dr Malone says, ” .. what is being done by suppressing open disclosure and debate concerning the profile of adverse events associated with these vaccines violates fundamental bioethical principles for clinical research”.

With regard to the use and abuse of misinformation, the inventor of these vaccines says that the public have to be given accurate information to allow informed consent. He says, “The suppression of information, discussion, and outright censorship concerning these current COVID vaccines which are based on gene therapy technologies cast a bad light on the entire vaccine enterprise. It is my opinion that the adult public can handle information and open discussion. Furthermore, we must fully disclose any and all risks associated with these experimental research products”.

In short, it is simply not possible to arrive at a position of informed consent unless you have access to the full facts around your options and the associated risks and benefits.

[61] The same article outlines other serious concerns about COVID vaccines expressed by Dr. Bret Weinstein, Dr. Peter McCullough, Dr. Tess Lawrie, Professor Stanley S. Levinson (medicine, endocrinology, diabetes and metabolism) and Professor Sucharit Bhakdi (awarded the Order of Merit for medical microbiology). These are well-known leaders in their fields.

[62] Several other articles presented by the mother outline similar expressions of concern about the COVID vaccines from equally qualified and reputable sources worldwide.

[63] For clarity:
a. I am not for one moment suggesting that we should presume the mother’s experts are right.
b. But once we determine they’re not crackpots and charlatans, how can we presume that they are wrong? Or that they couldn’t possibly be right about any of their warnings?
c. When children’s lives are at stake, how can we ignore credible warnings?

[64] The following paragraphs from Saint-Phard v. Saint-Phard 2021 ONSC 6910 (SCJ) illustrate the approach which has been taken in a number of cases in which COVID vaccinations were approved by the court.

(List of cases where case related to safety & efficacy of vaccines and government approval)

[65] And that’s really what many of these cases come down to: After considering all the evidence – or often, the lack of evidence – can the court just fill in the blanks and take judicial notice of the fact that all children should get vaccinated?
a. Because if the answer is “yes”, then we’re wasting a lot of time and judicial resources.
b. If judges just “know” that all children should be vaccinated, then we should clearly say that that’s what we’re doing.
c. But equally, if that’s not what we’re supposed to be doing….then we shouldn’t do it.

[66] In R.S.P. v. H.L.C. 2021 ONSC 8362 (SCJ) Justice Breithaupt Smith recently set out a timely warning about the danger of applying judicial notice to cases where expert opinion is unclear or in dispute. It’s a warning I whole heartedly adopt:

56 Unfortunately, the recent case of Saint-Phard v. Saint-Phard14 does not assist in navigating medical treatment for minors because of its fatal flaw regarding judicial notice. In that case, the Court wrote: “Facts may be found by taking judicial notice. [citations omitted] Each of these cases include findings
related to the safety and efficacy of publicly funded vaccines on the basis of judicial notice.”

This shows a misunderstanding of the purpose of taking judicial notice, which, according to the Supreme Court’s definitive decision in R. v. Find 2001 SCC 32 (CanLII) (at paragraph 48) is intended to avoid unnecessary litigation over facts that are:
…clearly uncontroversial or beyond reasonable dispute. Facts judicially noticed are not proved by evidence under oath. Nor are they tested by cross-examination. Therefore, the threshold for judicial notice is strict: a court may properly take judicial notice of facts that are either: (1) so notorious or generally accepted as not to be the subject of debate among reasonable persons; or (2) capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[66] 59 The acceptance of government-issued statements as evidence renders the facts published by the government agency (presumed to be a source of indisputable accuracy) admissible.
Public Health Ontario’s statement that two children died of SARS-CoV-2 between January 15, 2020 and June 30, 2021 is therefore admissible as fact. Public Health Ontario’s publicly accessible document is admissible as proof of the truth of its contents. In contrast, a statement concerning the safety and efficacy of any medication in the prevention or treatment of any condition is, in and of itself, an opinion.

Judicial notice cannot be taken of the opinion of any expert or government official that a medical treatment is “safe and effective.”

As judicial notice cannot be taken of expert opinion evidence, it is illogical to reason, as was done at paragraph 12 of Saint-Phard , that an expert’s “objections raised against the vaccine were directly countered by the judicial notice taken that the vaccine is safe and effective and provides beneficial protection against the virus to those in this age group.” To compound the problem, this statement draws a conclusion that is overbroad (i.e. that the vaccine provides beneficial protection to all children and ought therefore to be received by the child in question) without having considered the comparative analysis of the factors in A.C. v. Manitoba 2009 SCC 30 (CanLII). As a result, reliance upon this reasoning would be misguided.

60 In submissions, I was also referred to the case of A.C. v. L.L. 2021 ONSC 6530 (SCJ) in which both parents agreed that each of their three teenage children would be permitted to make his or her own decision with respect to the COVID-19 vaccination. Two of the three children chose to have it administered and one did not. While the Court made many very concerning and overly broad comments, all are obiter dicta. None were relevant to the result ultimately reached, namely that both parents acknowledged each child’s maturity in choosing whether or not to participate in the medical procedure and agreed to allow each child to make his or her own choice. With the parents having agreed upon that point, the Court was no longer obligated to make any finding as to whether receipt of the COVID-19 vaccine was in the best interests of any of the children. As the parents had agreed to respect the decisions made by their children, one of whom declined the COVID-19 vaccine, is that child now in breach of the Court’s determination, at paragraph 32, that vaccination is in that child’s best interests? Of what utility is the declaration in the Order portion of the decision that “[all three] children … shall be entitled to receive the COVID-19 vaccine”? In family litigation, unsolicited judicial opinions on parenting questions already solved by the parents serve no one. I am reminded of Justice Abella’s warning that: “[the analysis of a child’s maturity in making medical decisions] does not mean … that the standard is a license for the indiscriminate application of judicial discretion” A.C. v. Manitoba (paragraphs 90-91). Thus, while I commend the parents in A.C. v. L.L. for resolving the issue of each child’s ability to make his or her own decision, the case itself does not assist this Court.

[67] Why should we be so reluctant to take judicial notice that the government is always right?
a. 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.
b. 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.
c. How about sterilizing Eskimo women? The same thing. The government knew best.
d. 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.
e. 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.
f. 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.
g. 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.
h. And throughout history, the people who held government to account have always been regarded as heroes – not subversives.
i. 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?
j. Nobody is infallible.
k. And nobody who controls other people’s lives – children’s lives – should be beyond scrutiny, or impervious to review.

[68] As well, how can you take judicial notice of a moving target?

a. 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.

b. 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.

c. Government experts sound so sure of themselves in recommending the current vaccines.
d. But they were equally sure when they told us to line up for AstraZeneca. Now they don’t even mention that word.
e. Even Pfizer has changed its mind. It recently approved vaccines for kids under five. Then more recently the company changed its mind.
f. None of this is meant a criticism. Everyone is doing their best with a new and constantly evolving health crisis.
g. But how can judges take judicial notice of “facts” where there’s no consensus or consistency?

[69] And then we have the issue of delegation.
a. As with almost all these vaccine motions, the father asks for an order that his children receive the current COVID vaccine “and all recommended booster vaccines.”
b. Which recommended booster vaccines?
c. When?
d. How many?
e. What will they contain?
f. Who will decide?
g. Will there be any opportunity for future judicial oversight, or will this simply be a forever commitment controlled by the government.
h. What are the health implications if children receive the current vaccine, but skip some or all of the boosters?
i. What future COVID variant will the boosters guard against? We already seem to be using the Delta vaccine to fight the Omicron variant. Will future boosters continue our pattern of using old medicine to fight new viruses?
j. These are all valid questions, requiring answers which are currently unavailable.
k. It is improper for the court to pre-determine future medical treatments at unknown times, in unknown circumstances, with decision making authority delegated to unknown persons.
l. If you can’t take judicial notice of the present, you can’t take judicial notice of the future.

[70] As well, there is a systemic issue common to most of these COVID vaccine cases.
a. The father presented his expert evidence.
b. The mother then presented her expert evidence.
c. The father responded that the mother’s theories have already been “debunked” – so we shouldn’t waste time talking about them.
d. Alleging that your opponent’s position has already been debunked is a common tactic these days.
e. And quite effective.
f. Because unlike stare decisis – the doctrine of precedent which requires judges to follow specifically cited earlier court decisions – there is no such formality to the concept of debunking.

g. All you have to do is make the blanket assertion that an opposing view has already been debunked – without providing any details – and hope that nobody asks for proof.

h. In this case, I reject the father’s claim that all of the mother’s concerns about COVID vaccines have already been properly considered and disproven, in a process adhering to natural justice, conducted by an appropriate judicial body.
i. Quite to the contrary, I have not been able to find any indication – in the father’s evidence or in the body of COVID vaccine case law – that allegedly debunked theories have ever been properly considered or tested. In any court. Anywhere.

[79] With respect to the positions advanced by each parent.
a. I respect the father’s decision to be guided by government and health protocols.
b. I think the father did himself a disservice by focussing so much of his case on dismissive personal attacks on the mother. Those attacks are not only misguided and mean-spirited. They raise doubts about his insight with respect to the vaccine issue – and they also raise doubts about his appreciation of the nature and quality of the important relationship between the mother (as primary resident parent) and the children.
c. I equally respect the mother’s decision to make exhaustive efforts to inform herself about the vaccination issue.
d. I find that the mother took a reasonable approach in acknowledging the strengths of the pro-vaccine materials, while at the same time attempting to reconcile them with contrary viewpoints and warnings issued by equally competent and credible medical professionals.
e. I find that the mother’s position is more reasonable and helpful in that she invites discussion and exploration of both sides of the story, while the father seeks to suppress it.
f. I find that the father has inaccurately and somewhat unfairly characterized both the mother’s position and her evidence.

g. The father has attempted to dismiss the mother as some sort of crazy anti-vaxxer. Nothing could be further from the truth. The mother’s materials and submissions actually addressed the important and complex issues in more detail and with more comprehension than conveyed by the father.

She has made it very clear that she has not completely rejected COVID vaccinations for L.E.G. and M.D.G.. She is simply concerned that in her view there is overwhelming evidence of unresolved safety concerns with respect to the current vaccines being administered. She has come to the conclusion that at this time the risks associated with the vaccines outweigh the benefits.

h. As well, the mother’s statement that she believes “in personal choice, knowledge, understanding and informed consent” is to be viewed in a reassuring context. She has gone to extraordinary lengths to inform herself, to maintain an open mind, and to discuss the issue with her children in a balanced, enlightened, and dispassionate manner.

i. The father has attempted to dismiss the mother’s supporting materials as unreliable and less persuasive than his own materials. Once again, I find his attack to be misguided and inaccurate.

j. Pro-vaccine parents have consistently (and effectively) attempted to frame the issue as a contest between reputable government experts versus a lunatic fringe consisting of conspiracy theorists, and socially reprehensible extremists. This was absolutely the wrong case to attempt that strategy. The professional materials filed by the mother were actually more informative and more thought-provoking than the somewhat repetitive and narrow government materials filed by the father.

[80] This is not the kind of case where the court can say that either side is necessarily correct. Nor that the same determinations should apply for every child, no matter the circumstances.
[81] With the mother’s materials satisfying me that a legitimate and highly complex debate exists on the efficacy and utilization of COVID vaccines, I am not prepared to apply judicial notice as a method of resolving the issue. Anyone reading even some of the articles presented by the mother would likely conclude that these are complicated and evolving issues, and there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots. That’s why the court should require evidence rather than conclusory statements.

[82] The father insists the mother’s views have been debunked, but he provides no example of any such determination actually having been made. It would be helpful if, once and for all, the competing positions and science could be properly explored and tested in a public trial.

[83] On balance, I am satisfied that that mother’s request for a cautious approach is compelling, and reinforced by the children’s views and preferences which are legitimate and must be respected. The mother has consistently made excellent decisions throughout the children’s lives. Her current concerns about the vaccines are entirely understandable, given the credible warnings and commentary provided by reputable sources who are specifically acquainted with this issue.

[84] The mother has consistently made excellent, informed, and child-focussed decisions. In every respect she is an exemplary parent, fully attuned to her children’s physical and emotional needs. She has demonstrated a clear understanding of the science. She has raised legitimate questions and concerns. I have confidence that she will continue to seek out answers to safeguard the physical and emotional health of her children.

[85] She is not a bad parent – and no one is a bad citizen – simply by virtue of asking questions of the government.

[86] At a certain point, where you have absolute confidence in a parent’s insight and decision-making, you have to step back and acknowledge that they love their child; they have always done the right thing for their child…and they will continue to do the right thing for their child.
[87] The father’s motion is dismissed.
[88] The mother shall have sole decision-making authority with respect to the issue of administering COVID vaccines for the children L.E.G. and M.D.G..

POSTSCRIPT:
[91] It’s irrelevant to my decision and it’s none of anyone’s business.
[92] But I am fully vaccinated. My choice.
[93] I mention this because I am acutely aware of how polarized the world has become.
[94] We should all return to discussing the issues rather than making presumptions about one another.

Pazaratz J.
Released: February 22, 2022
2022 ONSC 1198 (CanLII)