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A man and child walk into a COVID-19 vaccination clinic on Nov. 23, 2021 in Montreal.Ryan Remiorz/The Canadian Press

An Ontario judge has declined to recognize as fact that government-endorsed COVID-19 vaccines are beneficial for children, saying that government decisions have often gone disastrously wrong.

In granting a mother’s wishes that two children aged 12 and 10 not be vaccinated – the father wanted them to be – Ontario Superior Court Justice Alex Pazaratz found that the vaccines’ potential side effects justified her caution. He cited a long list of rights abuses to explain why courts should not simply defer to government experts.

“What about the residential school system? For decades the government assured us that taking Indigenous children away – and being willfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies,” Justice Pazaratz, a member of the court’s family division, wrote in a ruling last week.

“How about sterilizing Eskimo [sic] women? The same thing. The government knew best. Japanese and Chinese internment camps during World War II? 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.”

The ruling by Justice Pazaratz – who added in a postscript that he is vaccinated – reflects a debate among Canadian judges over their role in assessing facts surrounding vaccination disputes among parents. In at least four Ontario cases last year, and one in Saskatchewan, judges have taken “judicial notice” of the safety and efficacy of COVID-19 vaccine for children, and settled parental disputes over vaccination by ordering that the children involved be vaccinated.

Taking judicial notice means recognizing certain facts as indisputable, so they can be introduced as evidence by one side or the other without having to verify them. The Supreme Court of Canada has said courts may take judicial notice of facts that are so generally accepted as to be beyond debate among reasonable persons.

Justice Pazaratz, who was appointed to the bench in 2007 by the Conservative government of Stephen Harper, said statements on any medication’s safety or efficacy are opinion, not fact, and do not resolve disputes between parents.

“Should judges sit back as the concept of ‘Judicial Notice’ gets hijacked from a rule of evidence to a substitute for evidence,” he wrote (emphasis in the original).

The parents, known by their initials, J.N. and C.G., have three children. The oldest, 14, lives with the father and is vaccinated. The younger two live with their mother. The two parents, who are in their 30s and were married for seven years before separating, had previously reached an agreement giving each sole-decision-making authority over the ones under their own roof, except for major life decisions, and leaving the issue of vaccination of the younger children still to be decided.

The mother, who represented herself in court, did not want the younger children vaccinated, and the two children expressed a wish not to be vaccinated – a wish that an independent social worker reported to the court was honestly held, without the children having been manipulated.

Both parents are excellent, Justice Pazaratz said. But he took issue with the father’s presentation of his case in which he reported that the mother is affiliated with the anti-vaccine-mandate People’s Party of Canada, attached a collection of the mother’s Facebook posts and alleged that she supports conspiracy theories.

“Have we reached the stage where parental rights are going to be decided based on what political party you belong to?” Justice Pazaratz asked in his ruling. He said he is seeing more and more intolerance, vilification and character assassination in family court, and suggested that families are emulating politicians in the pandemic, including Prime Minister Justin Trudeau, whom he did not mention by name. “How did we lower our guard and let the words ‘unacceptable beliefs’ get paired together? In a democracy?

Decisions on children in parental disputes are made according to a judge’s view of the best interests of those children. Health Canada has called vaccines for children safe and effective, and the best protection against COVID-19. Provincial health authorities recommend their use.

But the mother introduced evidence on risks and side effects outlined by vaccine manufacturer Pfizer, including severe allergic reactions and inflammation of the heart muscle. That satisfied Justice Pazaratz that a “legitimate and highly complex debate” exists. The mother’s compelling case for caution was reinforced by the children’s own wishes, he ruled.

“And really, how fine is the line between ‘vaccine hesitancy’ and ‘not taking any chances with your kid?’ All of the caselaw says judges have to act with the utmost caution and consider all relevant evidence in determining the best interests of the child. How can we then impose a lesser standard on a demonstrably excellent parent?”

Mary Birdsell, executive director of Justice for Children and Youth, a legal clinic, which was not involved in the case, said in an interview that the judge “struggled valiantly with the difficult question of what’s in their best interest, and I’m loathe to second-guess,” especially given that it would have been a “forced vaccination.”

Jesse Herman, the father’s lawyer, declined to comment. The mother could not be reached.

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