In early September, a Saskatchewan judge did a startling thing. The father of a 12-year-old girl had applied for a court order allowing his daughter to be vaccinated against COVID-19 over the objections of her mother. Justice M.T. Megaw of the Saskatchewan Court of Queen’s Bench granted the order, concluding that vaccination was in the best interests of the girl and could proceed without her mother’s consent.
While to some, that outcome may itself seem contentious, the curious part happened along the way. The judge’s conclusion was not based on evidence about the girl’s risks from the virus and from the vaccine. Instead, he rejected the need for evidence on these questions at all, and took “judicial notice” that the virus posed a serious and significant health risk to children like the 12-year-old, and that the Pfizer COVID-19 vaccination was safe and effective for her to receive.
Within our adversarial system of law, the burden of proving a fact generally lies upon the party alleging it. If you claim that it rained on Tuesday, you will need a witness to testify that it did. No witness, no finding of rain. Without evidence, no court can conclude that the alleged fact is true. However, some facts are so obvious and uncontentious that having to prove them would be silly and a waste of judicial resources. The sky is blue. The Earth goes around the sun. Of such facts the court may take judicial notice, a narrow exception to the general rule.
But judicial notice is not meant to apply to the very issues that are in dispute. In the Saskatchewan case, the girl’s risk from the virus and her risk from the vaccine were facts on which the outcome of the case depended. Instead of assessing competing evidence on those questions, the court jumped the shark.
“I am able to conclude without the necessity of any specific proof,” reads the decision, “that the possibility of contracting the Covid-19 virus poses a serious and significant health risk to people generally, including children and adults. … I conclude I am able to take judicial notice that the Pfizer COVID-19 vaccination is safe and effective for use in people, including both adults and children. I form this conclusion by taking judicial notice of the vaccine approval process in Canada and the approval by the health authorities of this particular vaccine.” COVID vaccines are safe for 12-year-olds like the sky is blue.
Judges lack training in everything but the law, which is not their weakness but their strength, for it frees them from specialized predispositions that burden experts. Judges can be neutral in cases about COVID rules, the theory goes, not because they know about viruses and vaccines but because they don’t, and therefore must make their findings exclusively on evidence brought by the parties. For a court to decide disputed facts about novel viruses and vaccines without regard to evidence is by no means unprecedented but nevertheless remarkable.
The Saskatchewan court is not alone in its embrace of the official COVID narrative. Decisions from around the country have reflected similar dispositions. For instance, in December 2020, the Alberta Court of Queen’s Bench dismissed an application for an injunction against COVID-19 restrictions, holding that the lack of evidence of their scientific basis was irrelevant.
In May 2021, the Nova Scotia Supreme Court granted the provincial government an injunction to prohibit protests about COVID-19 rules, characterizing protestors as willfully blind and having “a callous and shameful disregard for the health and safety of their fellow citizens.”
In June, the Federal Court concluded that any deprivation of liberty arising from compulsory quarantine for airline travellers was consistent with “principles of fundamental justice.” Therefore, quarantine was not a violation of the Charter right to liberty, much less an unreasonable limit on that right. The Court compared the COVID pandemic to being at war, and observed that during a war, governments are entitled to demand sacrifices from their people.
Also in June, the Ontario Superior Court granted a restraining order against three churches from holding services, and noted that if necessary, the court could and should take judicial notice of a COVID-19 pandemic. The court did not explain what might make it “necessary.” To date, the scientific basis for COVID lockdowns, quarantines, masking, and vaccine mandates has not yet been subjected to full scrutiny in a Canadian court.
On COVID vaccines, “safe and effective” has been the unanimous message from health officials, medical regulators, universities, and governments. In June, Toronto Mayor John Tory echoed advice from the city’s medical officer of health, Dr. Eileen de Villa, that the Pfizer and Moderna vaccines were interchangeable, effective, and safe for everyone over 18 years.
Three weeks after the Saskatchewan decision, in testimony prepared for a hearing of the Toronto Board of Health, Kelly Brown, an independent investment and data analyst, using data from Toronto and Ontario health authorities, showed what officials did not want to hear—that COVID vaccines do pose risk and are not equally “safe and effective” for everyone. Young men carry a risk for myocarditis, Brown pointed out, including a statistical chance of 1 in 3,800 for 18- to 24-year-old males receiving two doses of the Moderna vaccine. Healthy members of this cohort, according to the same statistics, have an almost non-existent risk of death from COVID. This kind of evidence is not relevant to whether 12-year-olds should receive a vaccine?
Two days after Brown’s testimony, the Ontario government recommended that 18- to 24-year-olds receive the Pfizer vaccine rather than Moderna due to the higher risk of heart complications. In the meantime, for similar reasons, Iceland has stopped giving the Moderna vaccine to anyone.
Courts should be neutral, disinterested, and uninformed. On COVID, as on any other contentious subject, a little learning outside the courtroom is exactly what should not occur.
