Court Refuses to Take Judicial Notice of COVID-19 Vaccine “Facts”
In a set of ground-breaking comments, the Ontario court recently stated that it was no longer comfortable to accept as “fact” those various government opinions and information stating that current COVID-19 vaccines are “proven” to be safe and effective for children.
This has potentially widespread ramifications, far beyond the specific ruling in which the comments were made.
To understand the impact, it’s important to first explore the concept of “judicial notice”, which is something that courts can avail themselves of in the right situation. Judicial notice:
- Is the only exception to the general rule that cases must be decided on the evidence presented by the parties in open court, and given under oath;
- It involves the court accepting a fact or state of affairs without the usual proof.
- It applies to facts that are either: 1) so notorious or “accepted” that they are above dispute by reasonable persons; or 2) they are capable of immediate and accurate demonstration, by resorting to readily-accessible sources of indisputable evidence. These sources can include both large bodies of scientific literature and jurisprudence.
The decision in which the comments appear, M.M. v. W.A.K., involved a father who wanted the court to take “judicial notice” of the fact that government-approved COVID-19 vaccines were both safe, and effective. This was in the context of the father asking the court to order that his 12-year-old daughter be forced in her own best interests to get the vaccine, over her specific and repeated objections.
The court chronicled the way judicial notice had been applied to: 1) pandemic information generally; 2) the risk it poses to children; and 3) the safety and efficacy of vaccines. Specifically, it noted that other courts had taken judicial notice that:
- It could be presumed that children being vaccinated against COVID-19 was in their best interests, unless there was a compelling reason for them not to be.
- Contracting COVID-19 poses many serious and significant health risks to both children and adults. Harm to a child from contracting vaccine-preventable illness may include death.
- The vaccine is both safe, and effective.
These conclusions – and the judicial notice that arose from them – were taken from facts regarding COVID-19 and the COVID-19 vaccine that had been based on: 1) representations by government public health authorities, and 2) judicial notice taken in other cases. The sources included an array of government and public health agencies, which in Ontario included the Ontario Ministry of Health, Toronto Public Health and the Toronto District School Board.
However on the flip-side, in some recent cases the courts were expressly not prepared to take judicial notice that COVID-19 vaccines were safe and effective.
With this discrepancy in mind, the court in M.M. v. W.A.K. focused on the key pressing question in the case before it: Whether the scientific facts normally required for expert opinion to be admitted, around the safety and efficacy of COVID-19 vaccines for children, may be judicially noticed without proof.
The court concluded they could not. It pointed to a recent decision in R.S.P. v. H.L.C. where the judge observed that judicial notice was intended to avoid unnecessary litigation over facts that were clearly uncontroversial or beyond reasonable dispute. The judge offered what was called at “timely warning”:
Judicial notice of the facts contained in government publications are “capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.” Such facts could include, for example, that there are two time zones in the Province of Ontario or that there were two deaths and 39 Intensive Care Unit admissions among Ontario children from January 15, 2020, to June 30, 2021 connected with SARS-CoV-2.
Judicial notice cannot be taken of expert opinion evidence. … [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, … 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.”
The court in M.M. v. W.A.K. agreed with these conclusions, and decided it was “not prepared to take judicial notice of any government information with respect to COVID-19 or the COVID-19 vaccines.” In connection with the specific case before it, the court added:
Even if I were to take judicial notice of the “safety” and “efficacy” of the vaccine, I still have no basis for assessing what that means for this child. I must still determine how safe, how efficacious the vaccine is for this child. Does safe mean there are no side effects? Is the vaccine effective in protecting her from contracting COVID-19, from spreading it, from dying from it, from severity of symptoms? As with informed consent, there are many factors that must be carefully considered in weighing risks and benefits.
The facts about COVID-19 and the vaccines that our courts have taken judicial notice of are facts that that lie at the dispositive end of the spectrum where it is most pressing to meet the criteria of notoriety or immediate demonstrability … I cannot find that these scientific facts are notorious or that the government is a source of indisputable accuracy.
The court ended with the following conclusions about the best interests of the child under consideration:
Without taking judicial notice and without admitting the doctor’s note there is no evidence before me as to assess the risks, benefits, safety or efficacy of the COVID-19 vaccines. Absent judicial notice, there is certainly no presumption that it is in a child’s best interest that she be vaccinated.
This is an important ruling for all family litigants who are still in dispute over the benefits and risks of COVID-19 vaccines for their child.
For the full text of the decision, see:
M.M. v. W.A.K., 2022 ONSC 4580 (CanLII), <https://canlii.ca/t/jr8xb>
R.S.P. v. H.L.C. 2021 ONSC 8362
