The Canadian Courts Have become politicized on COVID-19 litigation.
The Ontario Court of Appeal in J.N. v C.G.- A case that should concern all Canadians!
Brief Summary of JN v CG
This is a family court case that was decided early February 2023 by the Ontario Court of Appeal. It raises concern about the lack of impartiality in the Courts on the issue of COVID19 vaccines.
Family Court case:
JN v CG is a case involving parental dispute over COVID19 vaccinations. The mother has decision-making authority regarding two children aged 10 and 12 on all matters, including medical treatment. She wants to wait until the clinical trials are completed and there are clear answers regarding long-term safety and effectiveness of the vaccines. She decided it was in the best interests of her two children to wait and not get COVID19 vaccines right now. The father wanted the two children to get the COVID19 shots and all boosters. He sought a Family Court order that the mother do so, but he also claimed he did not trust her to do so even if the Court ordered it and so he asked the Court to grant him sole decision-making authority for the COVID19 shots only. The Family Court judge, Justice Pazaratz, heard both sides, the father relied on information from Health Canada and the mother relied on information from Centre for Disease Control but also from on line resources referring to Dr. Robert Malone and Dr. Tess Lawrie’s opinions. The judge also wanted to hear the children’s wishes and so he ordered what is referred to as the Voice of the Child report. That report noted the children’s views and concluded that the children did not wish to be get the COVID19 shots. On the basis of all this evidence J. Pazaratz performed a full “best interests of the child” analysis which requires an assessment of multiple factors in family law. He decided that the mother was the parent to continue making all decisions and denied the father the right to take only the decision to not give the COVID19 shots removed from her. The judge wrote that he could not accept as truthful the claim made by Health Canada that the COVID19 vaccines are safe and effective for children when there was other information which questioned that. Accepting a fact without the need to prove it with evidence is rare in Court. But judges have the power to do that if they use “judicial notice”. There is another concept judges use in decision making called “judicial deference” which is when the government is given the benefit of the doubt, so to speak. Both these two concepts combined together and used excessively can undermine the Courts role in being an impartial arbitrator of disputes between citizens interpreting government policies and in cases between the citizen and the government.
Ontario Court of Appeal case:
The Appeal panel consisted of 3 judges all appointed by the Liberal Trudeau government. It included the Chief Justice who was personally appointed by Justin Trudeau. All three judges unanimously decided that the father should have decision making for the COVID19 vaccines assigned to him because he is prepared to do what the government wants him to do regarding medical treatment for children. The mother is the best parent to make all decisions concerning the children, except this one because she disagrees with Health Canada. Health Canada “approved” the COVID19 vaccines so that means they are safe and effective. The “expert opinion” of Health Canada was not disputed or not disputed properly by the mother – who did not have a lawyer or legal training – either in Family Court or at the Court of Appeal. The Court came to this conclusion on the basis that the Family court judge made mistakes to admit the mother’s evidence which was unreliable because it was published online and Dr. Malone was barred from Twitter for violating the “misinformation” policy. The appeal court relies on the concept of “judicial notice” and “judicial deference” to government. To learn how and why this is concern for the erosion of the rule of law in Canada courts on COVID19 litigation please read this case comment:
On February 3, 2023, the Ontario Court of Appeal overturned one of the few conscientious Canadian family court decisions in which a judge refused to take “judicial notice” that the COVID jab is “safe and effective” for children in a case involving parental dispute over vaccination. The decision of three appeal judges; George, Thorburn and Chief Justice Tulloch, all appointed by Trudeau, whose hardline stance against Canadians not taking the experimental jab promised they would suffer “consequences”, represents a travesty for access to justice and medical decision-making by single parents for their children. It also calls into question the Courts’ independence on COVID 19 litigation and ignores binding Supreme Court of Canada jurisprudence.
Sounding a lot like Prime Minister Justin Trudeau, Ontario’s highest court confirmed that if a single parent does not “abide by government guidelines” regarding COVID19 then “the failure to do so will have consequences”. The consequence for a single mother in this case was the loss of the right to make the best medical treatment decisions for her children.
The decision sets a dangerous precedent as it 1) is paternalistic and punitive to single mothers/parents, 2) places an onerous burden on parents who choose medical treatment that differs from government recommendations and sets the evidentiary bar to justify their decision too high, and 3) signals a loss of judicial independence from the executive through judicial notice and judicial deference to government COVID policies.
J.N. is the mother of three children. She has legal decision-making authority in all respects concerning her two younger children. She decided to hold off on giving the children the COVID19 shot pending better answers to legitimate questions regarding safety and efficacy . The father disagreed with her decision and wanted her to give shots and all boosters. He brought a motion in Family court last year to order the children get the shots. He claimed that he could not trust the mother to follow a court order and sought the right to make that decision, only, taken away from her and given to him. After hearing both sides and their respective evidence, Justice Pazaratz held that the mother was still the best suited to continue making all decisions, including the COVID19 shots and, most importantly, the children’s wishes aligned with her decision. Given the Court of Appeal’s own conclusion at the end of the ruling, which recognizes that, due to their age, the children’s own wishes must be respected, there really was no need to overturn the Motion judge:
 At the hearing of this appeal, counsel advised that the appellant’s [father’s] objective is not to force vaccination upon the children, but simply to grant him decision-making authority regarding COVID-19 vaccines for the two younger children of the marriage. I have no doubt that the appellant is alive to the complications that would arise from giving him sole decision-making authority with respect to the children’s vaccination, given their ages, and the fact that the respondent [mother] has decision-making authority in all other respects. There is no reason to doubt the appellant’s motivation and stated desire to approach this very sensitive issue in a measured way and with a view to the children’s best interests. (emphasis added)
That is not what the father told the Court in 2021. Either he was dishonest to the Court of Appeal or the Court of Appeal was dishonest in its review of the Court proceedings below. But leaving that aside, in the above paragraph the Court arrives at the same conclusion as the Motions judge: the children are old enough to decide. So why did the Court of Appeal overturn Justice Pazaratz? Afterall, it is well recognized that unless there is compelling evidence to support a finding that a parent’s decision is not in the best interests of the children the Court should not interfere.
The inescapable answer is that the Court of Appeal seized the opportunity to send a message, not just to the mother, but to Canadians who seek to challenge government policy on COVID19, and to judges who preside over them. As the highest court in the province with significant persuasion over all other Canadian Courts, except the Supreme Court, its pronouncements will sway and distort COVID19 litigation with the erroneous use of judicial notice and judicial deference.
Paternalistic & Punitive
The mother’s position was that there is debate over the shot’s safety and efficacy for children. Justice Pazaratz’s decision recognized that. But the Court of Appeal finds that his decision runs contrary to the Government narrative and hence, not only intervened, but substituted its own decision, instead of permitting the matter to be relitigated with better evidence. The ruling both punishes the mother for not complying with, and the judge for not conforming to the trend to take judicial notice and give judicial deference to COVID19 government policy:
 As mentioned, most family court decisions related to the pandemic, at least to this point, have deferred to the government recommendation that people, including children, get vaccinated against COVID-19.
 Courts have also found that parents must, as a condition to exercising parenting time, abide by government guidelines designed to slow the spread of COVID-19, and that the failure to do so will have consequences: A.T. v. V.S., 2020 ONSC 4198.
 While the motion judge acknowledges many of these decisions, he clearly viewed them as neither binding nor persuasive. While he was not obliged to adopt the reasoning in a court of coordinate jurisdiction, it was important for the motion judge to cogently explain why he was departing from decisions that had already addressed health-related parenting decisions in this same context.
The appeal decision runs afoul of the doctrine of the best interests of the child which must be paramount in all judicial determinations related to children. Justice Pazaratz conducted a thorough best interests of the child analysis, which the Court of Appeal ignored. Yet the point of this appeal was not to make a judicial determination that was in the best interests of the children, because that had already been made, but to have a definitive ruling from the highest Court in Ontario endorsing the side that asserts COVID vaccines are “safe and effective” as “correct” and punishing the side that claims they are “unsafe and ineffective” as “wrong” without evidence or inquiry.
These specific children’s interest was not better served by removing the ability of the mother to make the decision on the COVID19 shot when she was the best parent to make all other decisions for them. The only interest served was that of the state through the exercise of judicial power to punish a parent for not making the decision the Government wanted her to make and to give that power to the parent who will as a “consequence” to her. The ruling undermines the integrity of the Court of Appeal. It promotes an “us versus them” discourse that has fragmented Canadian society.
Onerous & Inequitable
The Court is oblivious to the obvious inequality between the parties and appears to have done nothing to mitigate it. J.N did not have a lawyer either at the Superior Court on the motion, or on the appeal in a case involving complex legal issues regarding admissibility and exceptions to the rules of evidence. The father, on the other hand, was represented by a team of lawyers from three separate law firms. The reality in Canada is that single mothers face systemic obstacles to financial resources to afford legal counsel. The Court ignored and perpetuated this inequality.
The Court ruled that the mother did not present admissible or expert evidence to refute government Guidelines relied on by the father. The Court automatically accepted Health Canada policy recommendations as admissible and credible and erroneously took judicial notice as to the truth of their substantive content. Yet, the mother’s online articles, including a publication from the US Centre for Disease Control, another by Dr. Robert Malone and one quoting Dr. Tess Lawrie were ruled inadmissible and unreliable. Notwithstanding his outstanding stature as a scientist, Dr. Malone was deemed unreliable because he was barred from Twitter for “misinformation”. The whole world is aware, either directly through Elon Musk, or indirectly through the very public US Congressional Hearings Twitter’s admission that “misinformation” was a label used to supress truthful, accurate, and unbiased science and medical information on COVID19. The Court gave the mother’s evidence no weight. Be as it may, access to justice required – at a minimum – that the mother be afforded the opportunity to follow the instructions on tendering evidence and get another proverbial kick at the can to defend her right to decision-making. By substituting its own decision, the appeal court denied her access to justice.
The judges go one step further in exacerbating the inequity to find that Health Canada “recommendations”, (which the Court rubber stamped without independent non-government corroborating evidence), can only be disputed by expert evidence at par with the government’s expert authorities and the single mother has the onus to do so.
… where one party seeks to have a child treated by a Health Canada-approved medication, the onus is on the objecting party to show why the child should not receive that medication. The motion judge erred by reversing that onus.
 The respondent, as the parent seeking not to have the children vaccinated, had the onus to establish that, despite Health Canada’s opinion as to the vaccine’s safety and effectiveness, they should not be. That onus was not satisfied.
First, taking judicial notice of Health Canada’s information as “expert opinion” is contrary to the Supreme Court of Canada. This was pointed out by J. Pazaratz, the Motions judge:
 Judicial notice cannot be taken of expert opinion evidence. Chief Justice McLachlin for the unanimous Court in R. v. Find underscored that: “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).
Second, by placing the onus on a self represented single mother to refute the government, with its limitless resources, the Court not only placed a heavy burden on her, but also made Health Canada recommendation de facto mandatory on the children through the parent who insists on it. Without conducting an analysis of the best interests of the child factors, the Court rewards the father with decision making power – not because he demonstrated how he arrived at the decision for these children – but simply for doing what the government wants. Ignoring the warning in Justice Pazarataz’s decision of the injustice that results from historical judicial rubber stamping of executive action:
 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.
and the danger of accepting the “approval” of a medicine as “proof” of its safety:
- 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.
The Appellant Court dismisses Justice Pazaratz’s references above, as the basis for not blindly accepting as true that COVID19 vaccines are safe and effective, as “inept analogies”.
Judicial Notice plus Judicial Deference to Executive = Lack of Judicial Independence
The importance of judicial independence cannot be overstated.  Excessive application of the doctrine of judicial notice to the substantive information in government policies, and judicial deference to the executive, are two sides of the same coin that undermine both the perception of, as well as the fact of independence and impartiality of the Courts. In the words of Lord Hewart, “Justice must not only be done, but must also be seen to be done”.  The appeal court admonished the motions judge for declining to take judicial notice of COVID19 vaccine information by government authorities:
 …the motion judge relied on the case of R.S.P. v. H.L.C., 2021 ONSC 8362. The court in that case, in a passage relied on by the motion judge, noted, at para. 58, that “[j]udicial notice cannot be taken of expert opinion evidence”, citing R. v. Find, 2001 SCC 32 (CanLII), 2001 S.C.C. 32,  1 S.C.R. 863, at para. 49.
 In my view, this statement, while generally accurate, is inapposite in this case, where the “expert opinion” in question is the approval of medical treatment by Health Canada, the national body tasked with determining that treatment’s safety and effectiveness. (emphasis added)
Health Canada Guidelines are not beyond reproach. They have not been subjected to public scrutiny through Parliamentary debate, public hearings, notice or comment requirements, etc. It is inappropriate to take judicial notice of information in Guidelines as truthful without proof of evidence. It brings the administration of justice and the relationship between the Courts and government into disrepute. It undermines both the integrity of public administration and the rule of law, yet this is exactly what the Court of Appeal did:
 Stated otherwise, judicial notice should be taken of regulatory approval, and regulatory approval is a strong indicator of safety and effectiveness.
The Court of Appeal’s judicial notice makes leaping conclusions and parrots the government’s “safe and effective” mantra without proof of either. By taking judicial notice, the decision undermines public confidence in the Courts and the administration of justice in the context of COVID 19 litigation. It offends Canada’s constitutional separation of powers  between the judiciary and the executive. It leaves the public with the perception that the Courts are in bed with the government.
Also concerning is the suggestion that the Courts are not the place to contest government policy and accepting without question or proof, not only government policy on COVID 19, but the evidentiary premise for those policies in a sweeping statement:
 I would also note that there is no question that: 1) there is a COVID-19 pandemic; 2) this disease kills people, including children; and 3) the vaccines available to Canadians, including children ages 5 and older, have received regulatory approval. The problem, apart from the question of judicial notice, is that it is simply unrealistic to expect parties to relitigate the science of vaccination, and legitimacy of public health recommendations, every time there is a disagreement over vaccination. (emphasis added)
However, there is question:
1) regarding the evidentiary basis for a pandemic declaration and governmental response. The US Joint Congressional Committee hearings into the pandemic and the UK Public Inquiry on COVID19 established under the Inquires Act, are two examples. There is a plethora of COVID19 litigation, nationally and internationally, questioning the evidentiary rationale for having declared a pandemic and pandemic policies. Taking judicial notice of the fact of “a declaration of a pandemic by the government” is as far as the Courts can go without evidence. Government decisions and policies that are the subject of ongoing inquires and legal proceedings throughout the world should not be accepted as truthful without proof and inquiry.
2) based on data, which has revealed that those with no comorbidities were at low risk of severe illness or death from COVID alone. In no country in the world has COVID resulted in significant morbidity or mortality to children and youth.  Therefore, the claim that “COVID kills children” is immoral and unscientific on its face; and
3) COVID19 vaccines did not receive regulatory “approval” but were only “authorized”. That authorization occurred without long term testing for either safety or efficacy, so no claim can be made with confidence about the safety of the vaccines based on regulatory authorization alone. Authorization gave Canadians the impression that they are safe for use. However, since the commencement of the vaccine roll out to date, scientists, physicians and health professionals now have an opportunity to identify and study the risks and benefits of these vaccines, including previously healthy children dying of COVID19 vaccine induced myocarditis.
The Court of Appeal is clearly out of touch with legitimate and important questions regarding the pandemic and COVID19 vaccines. Determinations regarding such important questions cannot occur without evidence and inquiry and should not be made by using the doctrine of “judicial notice”. Judges should also be self-aware of the influence of media on them as decisionmakers, and to the extent that their own personal views on COVID19 are affecting their decision making including their ready resort to “judicial notice” for factual findings to support those views. This was recently pointed out by Justice Bennett in another Ontario family court case:
We as courts, may take judicial notice of something that is uncontroversial and not subject to dispute by reasonable people.
This court posits that a court, in determining whether or not to take judicial notice, cannot, nor should it be oblivious to, the court’s experiences generally in life and the information that the court receives in day-to-day life from sources such as the media. (emphasis added)
It takes an honest judge to recognize that his or her own general life experiences and the information she or he receives from the media plays a role in decision making. Hats off to Justice Bennett!
The application of Judicial notice and judicial deference, featured so prominently in COVID 19 litigation in Canada, obfuscates the objectivity, impartiality and independence of the Court. Judicial notice and judicial deference have no place in COVID19 litigation because it fails to subject government action to scrutiny and calls into question whether Canadian Courts have become politicized.
Canadians are right to question whether judges also fallen prey to the generated health and moral panic that has brought into play many very strong cognitive biases to repeat the extreme claims of “safe and effective” without evidence. A review of COVID19 litigation in Canada reveals decisions which run counter to Constitutional law and jurisprudence regarding informed consent and bodily autonomy. Regrettably, the highest Canadian Court has also tainted the perception of impartiality due to its very public stance on vaccines and mandates, even before hearing a case, undermining public confidence in, and the perception of judicial independence and the rule of law.
 When the Court accepts facts as true without evidence. R. v. Find for a discussion of what can constitute “judicial notice”.
 Justice Johnathan George was appointed in December 2021 by Liberal Minister of Justice and Attorney General Lametti
 Madame Justice Julie Thornbun was appointed in June 2019 also by Minister Lametti
 Micheal Tulloch was appointed by Justin Trudeau on December 19, 2022 as Chief Justice 6 weeks before this decision. As the first black judge to be appointed Chief Justice to the Ontario Court of Appeal he is poised as a contender for the Supreme Court of Canada – lest he fall out of the Prime Minister’s disfavour.
 PM Trudeau made these comments during the CBC Radio’s The House interview aired on June 25, 2022.
 Supra note 2, para  Courts have also found that parents must, as a condition to exercising parenting time, abide by government guidelines designed to slow the spread of COVID-19, and that the failure to do so will have consequences: A.T. v. V.S., 2020 ONSC 4198.
 Supra note 1, para 48 aged 10 and 12 at the time
 J.N. v. C.G., 2022 ONSC 2225https://canlii.ca/t/jnmlj
 J.N. v. C.G., 2022 ONSC 1198 https://canlii.ca/t/jmk30
 Supra notes 9 & 10 for the father’s position on previous judgements. Para  h. …He brought a motion dated January 25, 2022 requesting that L.E.G. and M.D.G. receive the COVID vaccine and all recommended booster vaccines. He also asks that he be permitted to arrange the vaccinations and attend with the children, because he doesn’t trust that the mother will comply even if she is ordered to do so.
 Best interests of the child factors are enumerated under s. 24 of the Children’s Law Reform Act R.S.O. 1990 c. C-12
 “It’s time for scientific community to admit we were wrong about COVID and it cost lives” January 30, 2023, Newsweek https://www.newsweek.com/its-time-scientific-community-admit-we-were-wrong-about-coivd-it-cost-lives-opinion-1776630
The mother submitted several articles including one from the U.S. Centers for Disease Control and Prevention, titled “Clinical Considerations: Myocarditis and Pericarditis after Receipt of mRNA COVID-19 Vaccines Among Adolescents and Young Adults,” and another article by Dr. Robert Malone, the inventor of the mRNA vaccine, titled “Are People Getting Full Facts on COVID Vaccine Risks?”
Malone has written nearly 100 scientific publications with over 13,000 citations of his work with an “outstanding” impact factor rating, measured by h-index and i10-index. The higher the indexes’ scores are, the better.
Lawrie, director of Evidence-Based Medicine Consultancy Ltd. and co-founder of the World Council for Health, has over 100 publications that received more than 6,000 citations, according to ResearchGate.
 supra note 2, para 22.
 US Joint Congressional hearings of the Oversight and Investigations and Health Committees into the administrations handling of the pandemic including origin of the virus and vaccine safety and effectiveness and the role of public health officials from the NIH, FDA and CDC in supressing information on social media. Dr. Robert Malone’s Twitter account has also been reinstated.
 J.N. v. C.G., 2022 ONSC 1198
 supra note 2, para. 23
 For a recent discussion on the necessity of the Rule of Law read Justice Martineau’s paper “Does Judicial Courage Exist and if so, is it necessary in a democracy?” in Western Journal of Legal Studies Vol 8, issue 2.
 Lord Chief Justice of England in the case of Rex v. Sussex Justices,  1 KB 256.
Health Canada’s drug regulation is not impartial or independent of drug companies that have influence over decision making through funding. The Court of Appeal makes a presumption that Health Canada Guidelines can be admissible “for truth of their contents”. Para 26. For a discussion of pharmaceutical company influence over health regulators in Canada, USA and UK see Professor Lexchin’s article: https://theconversation.com/health-canada-and-big-pharma-too-close-for-comfort-120965
 There is no expertise in vaccinology or virology and immunology on the NACI either. It is not accurate that Guidelines are based on “expertise opinion” on vaccines.
 As early as October 2020, Peter Hotez, dean of the National School of Tropical Medicine at Baylor College of Medicine in Houston, said, “Ideally, you want an antiviral vaccine to do two things . . . first, reduce the likelihood you will get severely ill and go to the hospital, and two, prevent infection and therefore interrupt disease transmission.”7 Yet the current phase III trials are not actually set up to prove either (table 1). None of the trials currently under way are designed to detect a reduction in any serious outcome such as hospital admissions, use of intensive care, or deaths. Nor are the vaccines being studied to determine whether they can interrupt transmission of the virus. https://www.bmj.com/content/371/bmj.m4037
 Recrafting the Rule of Law: The limits of Legal Order (Oxford: Hart Publishing, 1999)
 Children and young people remain at low risk of COVID-19 mortality. Bhopal, et al. 2021, The Lancet Child & Adolescent Health, pp. e12-13
 https://childrenshealthdefense.ca/wp-content/uploads/Guide_to_COVID19_vaccines_for_parents_v5.pdf. See also Australian Therapeutic Goods Administration cover-up of C19 vaccine induced death by Dr. McCollough
 J.W.T. v. S.E.T., 2023 ONSC 977
 The Court of appeal fails to perform the analysis for judicial notice as set out in R. v. Find SCC 2001 SCC 32
 McInerney v. MacDonald,  2 S.C.R. 138, Carter v. Canada (Attorney General), 2015 SCC 5,; Chaoulli v. Quebec (A.G.)  1 S.C.R. 791. Hopp v. Lepp, 1980 CanLII 14 (SCC), R. v. Morgentaler, 1988 CanLII 90 (SCC),  1 SCR 30, .R. v. O’Connor, 1995 CanLII 51 (SCC),Reibl v. Hughes, 1980 CanLII 23 (SCC) Rodriguez v. British Columbia (A.G.),  3 S.C.R. 519, Fleming v. Reid, 1991 CanLII 2728
 In September 2021 the Chief Justice of Canada Richard Wagner announced all 9 judges are “fully vaccinated” and directed that access to the top court’s Ottawa hearing room by “court staff, including law clerks, registry clerks and court attendants” will be “conditional upon being fully vaccinated”. Chief Justice Marc Noël, who leads the Federal Court of Appeal, however stated he does not consider it ethically appropriate, however, for him or his court to disclose publicly “whether it has any personal views or institutional policies on this issue, one way or the other” given that the matter of vaccine mandates is likely to come before his court for adjudication and the court’s paramount obligation is to maintain its impartiality.