“In J.N. v. C.G. [2022 ONSC 1198], Pazaratz J. noted that the objecting mother in that case, like the mother in this case, pointed to Pfizer-published guidance that the safety and effectiveness of the Covid-19 vaccine had not been established (it is the mother’s “strongest concern” in this case”). But notwithstanding that Court’s consideration of the risks associated with applying judicial notice to cases where expert opinion is unclear or in dispute (and may never be free from doubt) and speculating on the evidence, or lack of evidence, about the wisdom of mandatory child vaccination, the decision in that case really pivots on the rationality of each parent’s position and the facts unique to that family. Distinguishing J.N. from the case before this Court are the principal facts, as found, that the children had “very specific, strongly held and independently formulated views about Covid vaccinations” those views being “verified independently by an experienced social worker who would be alive to the possibility of parental influence or interference” of which there was no evidence in that case. There is no evidence in this case of AD’s views about vaccination and none about parental manipulation. There is no evidence either that the child has any health issue that contraindicates vaccination. The father relies on Health Canada guidance whereas the mother relies on her research. While the mother also raised the issue of AD’s consent to treatment under s. 11 of the Health Care Consent Act, 1996, S.O. c. 2, Sched. A.it is not relevant given that the child functions at a Grade 1 level of learning and understanding.
The mother challenges this father’s reliance on Health Canada and other government guidance on vaccination and the degree to which this Court should apply, if at all, judicial notice. In R.S.P. v. H.L.C., 2021 ONSC 8362, a case to which the Court in J.N. referred, Breithaupt Smith J. noted the definitive decision of judicial notice by the Supreme Court of Canada in R. v. Find, 2001 SCC 32 (CanLII). In R. v. J.M., 2021 ONCA 150 the Ontario Court of Appeal elaborated on Find in describing that facts of which a Court could take judicial notice included:
“(a) those that are so notorious or “accepted”, either generally or within a particular community, as not to be the subject of dispute among reasonable persons; and (b) those that are capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy… The sources may include both large bodies of scientific literature and jurisprudence”: ibid, para 31(v).
So what are the notorious or “accepted” facts which this Court is prepared to accept and which cannot be the subject of dispute among reasonable persons? And represent our collective lived experience. They are:
(a) The Covid virus kills;
(b) The virus is transmissible;
(c) The virus can, and has, mutated;
(d) Variants of the virus are more transmissible than others;
(e) Asymptomatic carriers of the virus can infect other people;
(f) Symptoms of the virus may vary according to age, health and co-morbidity factors;
(g) The virus does not discriminate;
(h) There is no known immunity to contracting the virus;
(i) There is no verifiable evidence of natural immunity to contracting the virus, or any mutation, a second or more times;
(j) Vaccines work;
(k) Vaccines are generally safe and have a low risk of harmful effects, especially in children: Warren v. Charlton, 2022 1088, at para 9(b);
(l) Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes; ibid, at para 9(c).
This is not “fake science”. It is not “fake medicine”. Whether there is a drug company conspiracy callously or negligently promoting unsafe medicine (the “lie”) in collusion with federal and provincial authorities this Court leaves to another day and to those who think Elvis is alive. He isn’t. He left the building decades ago.”
D. Jr. v. T, 2022 ONSC 1441 (CanLII) at 20-23