The Court of Appeal for Ontario’s decision in J.N. v. C.G. brings the province’s appellate judiciary into disrepute
Author: Denis G. Rancourt,* PhD https://denisrancourt.ca/
In the recent family law case J.N. v. C.G., the divorced parents sought a court decision regarding
which parent should have deciding authority for COVID-19 vaccination of their two youngest
children, aged 10 and 12.
Justice A. Pazaratz gave the self-represented mother (J.N.) sole decision-making authority with
respect to the vaccinations, and awarded her costs in the motion;
on the basis that her concerns were the result of conscientious enquiry, were not unfounded or arbitrary, that the
children had not been manipulated and held a consistent desire not to be vaccinated, and that
psychological harm could be caused if they were forced to be vaccinated by their father (C.G.).
Basically, Justice Pazaratz found that the mother was the more rational, closest and concerned
adult to make the decision of vaccination for the two youngest children (which every adult is
free to make for themselves), which also respects the children’s constant and independently
expressed wishes; on the considered basis that this is the best outcome for the welfare of the
children.
Justice Pazaratz found the father to be mean-spirited, unreasonable, offensive and misguided in
his representations before the court, preferring to attack the mother’s credibility rather than
address the issue. For example:
[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.
[…]
In his reasoned 27-page analysis, Justice Pazaratz expressly refused to take judicial notice (i.e.,
simply accept without tested proof) that the vaccines are safe and effective — on the mere
basis that the government approved the vaccines, recommends the vaccines, and states that
the vaccines are safe and effective. As such, there was no evidence before him that the vaccines
are safe and effective.
Justice Pazaratz received the affidavit submissions of both parents solely as evidence of what
the parents were considering in making their parenting decisions, not as evidence, one way or
the other, regarding whether the vaccines are safe and effective:
[15] In this case the evidence provided more questions than
answers.
a. The father filed two affidavits.
b. The mother filed one.
c. They both relied extensively on unsworn “exhibits”, which were
basically internet downloads.
d. In addition, the father relied on numerous downloads from the
mother’s social media accounts.
e. They both consented to my receiving these materials, to
demonstrate the sources of information which each of them is
relying on in formulating their respective parenting position.
Justice Pazaratz expressly did not consider that his mandate included resolving the scientific
and policy question of COVID-19 vaccine safety and efficacy:
[71] In a complex, important, and emotional case like this, it is
important to remember the court’s mandate:
a. I am not being asked to make a scientific determination. I am
being asked to make a parenting determination.
b. I am not being asked to decide whether vaccines are good or bad.
c. I am not being asked to decide if either parent is good or bad.
d. My task is to determine which parent is to have decision-making
authority over L.E.G. and M.D.G. with respect to the very specific and
narrow issue of COVID vaccinations. Each parent has clearly
identified how they would exercise such decision-making authority.
The Court of Appeal for Ontario nullified the ruling of Justice Pazaratz, and substituted its own
ruling giving sole decision-making authority with respect to the COVID-19 vaccinations to the
father.
The appellate court’s 23-page decision is dismissive, even overtly sarcastic at one point
(paragraph 30), and, most importantly, denies the mother’s natural justice rights, in a matter of
forced bodily injections no less, by misrepresenting the family court decision and disregarding
the established law of evidence regarding judicial notice, while imposing its own order that the
father have sole decision-making authority “with respect to the children’s vaccination against
COVID-19”.
Leaving aside the central issue (circumvented by the appellate court) of whether the scientific
question of the vaccine safety and efficacy needed to be answered for the family court judge to
make his decision about parenting (the family court judge says not), let me explain the
egregious appellate-court error about judicial notice this way:
i. no court or reasonable person can have any doubt that the question of whether the
COVID-19 vaccines are safe and effective, and the degrees to which they are safe
and effective for children, is a matter that requires expert evidence, whereas
ii. a different formation of the same appellate court in 2021 determined the obvious —
that matters that are the proper subject of expert evidence are, by definition, not
compatible with judicial notice.
The said different formation’s position is entirely aligned with the authoritative 2001 Supreme
Court of Canada directive on the question:
48 In this case, the appellant relies heavily on proof by judicial
notice. Judicial notice dispenses with the need for proof of 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: R. v. Potts (1982), 1982 CanLII 1751 (ON CA), 66
C.C.C. (2d) 219 (Ont. C.A.); J. Sopinka, S. N. Lederman and A. W.
Bryant, The Law of Evidence in Canada (2nd ed. 1999), at p. 1055.
49 The scientific and statistical nature of much of the information
relied upon by the appellant further complicates this case. 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. As Doherty J.A. stated in R. v.
Alli (1996), 1996 CanLII 4010 (ON CA), 110 C.C.C. (3d) 283 (Ont. C.A.), at
p. 285: “[a]ppellate analysis of untested social science data should not
be regarded as the accepted means by which the scope of challenges for
cause based on generic prejudice will be settled”.
Impervious to the establish law of evidence regarding judicial notice, the Court of Appeal in this
case decided:
[45] Stated otherwise, judicial notice should be taken of regulatory
approval, and regulatory approval is a strong indicator of safety and
effectiveness. That being the case, 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.
[46] 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.
In the context, this means: “If the government states on its websites that a medical intervention
is safe and effective, then trial-court judges in Ontario should take this government statement
to be a proven fact, and administer the case accordingly.”
Basically, on my study of the decision, if I may paraphrase, the appellate court’s reasoning for
circumventing the established law of judicial notice (and principles of natural justice) in this
case about forcibly injecting children is: “well, it’s the government, and there’s a declared
pandemic”.
The appellate court’s decision is contrary to law, and is both absolute and absurd.
Many unanswered follow up questions immediately arise, such as:
• How could a mother know or reasonably expect that a court will take untested evidence
of government positions expressed on the internet as proven facts, and that she has an
onus to disprove those facts?
• How could a mother know that the complex parenting conflict will, in the court, be
reduced to a purely scientific question and that the government’s slogan-style answer to
that question is taken to be a proven fact?
• Beyond the qualitative (and meaningless) “safe” and “effective” qualifiers, what degrees
and types of risks versus predicted benefits are sufficient to override the parent and
child decisions against injection?
• What amount and type of “overall benefit” or “best interest” is sufficient to override the
child’s Charter rights and the caretaking parent’s authentic concerns?
• What about the myriad of follow up boosters?
• What about the palpable possibility that government agencies are partly or largely
captured by influential entities having motives other than pure concern for public
health?
• What about the money and politics, which are in play?
• How does the court preserve its constitutional role if it thus makes a blanket decision to
defer to whatever position the government decides to have?
In addition, the appellate court makes several incorrect statements; for example, as follows.
(at paragraphs 19 and 31, respectively): “The information relied upon by the respondent
[mother] was nothing but something someone wrote and published on the Internet, without
any independent indicia of reliability or expertise” […] “The motion judge erred in failing to
conduct any meaningful review of the appellant’s authorities, or the laws of evidence, in favour
of the respondent’s [mother’s] questionable and unreliable internet printouts with no
independent indicia of reliability or expertise.”
Actually, the mother’s affidavit contains a fact sheet from Pfizer, giving a long and detailed
description of side effects, and the appellate court does not dispute the authenticity of the fact
sheet.
Actually, the mother’s affidavit contains an article dated 26 August 2021 from the scientific
journal Science, entitled “Having SARS-CoV-2 once confers much greater immunity than a
vaccine—but vaccination remains vital – Israelis who had an infection were more protected
against the Delta coronavirus variant than those who had an already highly effective COVID-19
vaccine”. By independent estimates, Science is consistently ranked as the world’s third leading
scientific journal. The 26 August 2021 article’s sources are public and fully verifiable.
Actually, the mother’s affidavit contains a 2012 article published in PLoS ONE, entitled
“Immunization with SARS Coronavirus Vaccines Leads to Pulmonary Immunopathology on
Challenge with the SARS virus”.
PLoS ONE is a highly ranked peer-reviewed scientific journal.
This article in PLoS ONE has been cited in the scientific literature more than 650 times, which is
a very high number, including by many recent leading scientific-journal articles about COVID-19
vaccines. All of this is readily verifiable using Google Scholar (which is a “CanLII” for globally
published scientific articles).
(at paragraph 15): “The motion judge’s description of Dr. Malone, Dr. Lawrie and the other
authors cited by the respondent – as leaders in their fields – seems to be based on nothing
more than their ability to either create a website or be quoted in one. There is no apparent or
verifiable expertise.”
Actually, Dr. Robert W. Malone’s record as a scientist is a matter of public knowledge, which is
immediately verifiable in both the scientific literature and the U.S. Patent records. His Google
Scholar profile is not difficult to find. His 5 most cited scientific articles and US patents, all
immediately verifiable, make it clear that he is eminently qualified, far beyond virtually every government public health officer, to make expert criticisms of the mRNA-based COVID-19
vaccines:
Everything the family court judge wrote about Dr. Malone is correct and verifiable although
imprecise in one instance:
[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
[…]
Should the judge be fatally faulted for loosely assimilating co-inventing and demonstrating the
underlying technology that is the crux of the new mRNA vaccines to “inventing the vaccine”?
Do the industry modifications in manufacturing the actual vaccine constitute “inventing the
vaccine”? Who, if anyone, “invented the lipid-particle mRNA COVID-19 vaccine”?
(at paragraph 30): “Further, the materials from the Canadian Paediatric Society – attached to
the appellant’s affidavit, and which state that the vaccine is safe and effective for children (and
that its benefits outweigh its rare side effects) – clearly meet the criteria set out in the case law
cited by the motion judge. That is to say, pursuant to ITV and Sutton, this is a well-known
organization (whose objectivity and sources can be readily and easily assessed), and the
information contained in its documents is capable of verification. Moreover, as the Canadian
Paediatric Society is not a government agency, the motion judge should have been comforted
knowing that its opinion is not formulated by a government official, or reliant only on
government procured information.”
Actually, if the appellate court had spent any time applying its recommendation that “whose
objectivity and sources can be readily and easily assessed”, it would have found a few relevant
items on the website of the Canadian Paediatric Society:
Under “Sponsorship”, the organization has:
The Canadian Paediatric Society’s activities and programs are funded
through a wide variety of sources, including membership dues, revenue
from continuing medical education events and annual conferences,
publications, unrestricted grants from individuals, foundations and
corporations, as well as government grants. Over the years, the CPS has
developed mutually beneficial relationships with private sector
companies. The resources offered by the private sector enhance our
ability to fulfill our mission. For instance, sponsorships can help us
expand our distribution network, allowing our resources on child and
youth health to reach a wider audience than would otherwise be
possible. The CPS welcomes corporations as supporters of our programs
and activities and seeks corporate sponsors that operate in the best
interests of children and youth.
Under “Competing Interests”, the organization has several declared conflicts of interest among
its board members, executives, and members.
Why would the appellate court want judges to presume reliability and accuracy of statements
from such internet sources, rather than have the judges apply the strict threshold for judicial
notice prescribed by the Supreme Court?
Several provincial appellate courts have denied their jurisdictions to fairly determine scientific
questions related to government COVID-19 measures, by taking government experts to be correct on the apparent basis that the government must be right,15 but this appellate court has
gone further. This appellate court holds the view (expressly not shared by the family-court
judge) that the scientific question is determinative in this case and that the government
position expressed in generic terms on the internet should be accepted as proven fact without
any government expert being required or cross-examined.
This appellate court in-effect wants to “simplify” all similar cases in this way: the government
position should be taken as absolute, and the parent’s only option is to prove that their
particular child would be at too high a risk compared to an unquantified benefit — “the parent
seeking not to have the children vaccinated, had the onus to establish that, despite Health
Canada’s opinion [taken as proven fact] as to the vaccine’s safety and effectiveness, they should
not be” (at para. 46).
How did this happen?
Is the father’s legal team of three lawyers to be followed because the mother is self-represented?
Is it so unpalatable that a family-court judge in-effect took judicial notice that there was a live
scientific debate about the risks and benefits of the COVID-19 vaccines?
In fact, there can be little doubt that there is a live and unresolved scientific debate about the
vaccines.
Death is not listed in the Pfizer list of side effects that was before Justice Pazaratz, however, it is
well established that the COVID-19 vaccines can cause death, as seen from:
• an increasing number of detailed autopsy studies (Choi et al., 2021; Schneider et al.,
2021; Sessa et al., 2021; Gill et al., 2022; Mörz, 2022; Schwab et al., 2022; Suzuki et al.,
2022; Tan et al., 2022; Yoshimura et al., 2022; Onishi et al., 2023),
• adverse effect monitoring (e.g., Hickey and Rancourt, 2022),
• a recent survey study (Skidmore, 2023),
• studies of vaccine-induced pathologies (e.g., Goldman et al., 2021; Kuvandik et al., 2021;
Turni and Lefringhausen, 2022; Edmonds et al., 2023; Wong et al., 2023), and
• more than 1,250 peer-reviewed publications about COVID-19 vaccine adverse effects
(React 19, 2022).
• There is also the known vaccine injury compensation programmes of states worldwide,
which include death resulting from the COVID-19 vaccines (Mungwira et al. 2020; Wood
et al., 2020; Crum et al., 2021; Kamin-Friedman and Davidovitch, 2021). Japan, Canada
and the UK have granted compensation for COVID-19 vaccine induced deaths (The
Japan Times, 26 July 2022; Corbett, 6 September 2022; Wise, 2022).
To this we should add the incisive criticisms against the pharmaceutical-industry-funded
vaccine clinical trials themselves (the supposed scientific basis for “safe and effective”), such as
are published in the leading British Medical Journal, in which the raw data was hidden from
independent researchers, and the trial designs were fatally flawed:
Doshi P. (2020) /// Will covid-19 vaccines save lives? Current trials aren’t
designed to tell us /// BMJ 2020; 371 :m4037 doi:10.1136/bmj.m4037.
https://www.bmj.com/content/371/bmj.m4037
Thacker P D. (2021) /// Covid-19: Researcher blows the whistle on data
integrity issues in Pfizer’s vaccine trial /// BMJ 2021; 375 :n2635
doi:10.1136/bmj.n2635. https://www.bmj.com/content/375/bmj.n2635
Doshi P, Godlee F, Abbasi K. (2022) /// Covid-19 vaccines and
treatments: we must have raw data, now /// BMJ 2022; 376 :o102
doi:10.1136/bmj.o102. https://www.bmj.com/content/376/bmj.o102
Why is it so difficult for an appellate court to admit the possibility that, when billion-dollar
secret contracts are in play, and when the government structurally applies a self-reporting
framework with manufacturers, government public health positions are not entirely and
objectively based on actual and verifiable science, and that, therefore, the government should
not be taken at its (website) word in establishing facts arising from complex and technical
manipulations controlled by an industry that does not have a stellar reputation for safety?
In the present case, the family-court judge acted wisely, applying the principles of family law,
whereas the appellate court was flippant, to the extent that a court can be flippant, and brings
the province’s appellate judiciary into disrepute.
Finally, it is comforting to note that the appellate court’s decision in J.N. v. C.G. has already
engendered bold and significant pushback from a judge of the family court in Ontario, in a similar case of parents having opposite positions regarding COVID-19 vaccination of their
children, in which government pronouncements about “safe and effective” are at issue.
Although couched in terms of distinguished circumstances, the said pushback is as close to a
“rebellion” as one can observe in a common law court system.
In an extensive analysis of the said appellate court’s decision, Justice R.T. Bennett explains
point-by-point why the appellate ruling should not apply to the case before their court,
and concludes their analysis with:
666. The Charter of Rights ensures that accused persons have the
right to a fair trial. This court finds that innocent children should and do
have that same right.
There is hope, even during a declared and highly mediatized and politicized pandemic.
Full article here: https://ocla.ca/wp-content/uploads/2023/03/2023-03-29-OCLA-Report-ONCA-decision-harms-public-perception-of-judiciary.pdf
