The CJC’s Acting Executive Director, Jacqueline Corado, in a June 23, 2022 letter, rejected the complaint. She called it “unsupported,” “largely based on a hypothetical scenario,” “manifestly without substance,” and claimed it did not concern judicial conduct. The complaint, her letter concluded, was not worthy of further consideration by the Council. She added, “[P]ublic confidence is at higher risk when public and dogmatic (sic) motivated attacks against the judiciary are launched without merit or for improper purposes.”
Fable 3: Courts Find Facts with Evidence
Judges lack training in everything but the law, which is not their weakness but their strength. Their ignorance frees them from specialized predispositions that burden experts. Judges can approach cases about seeds, debentures, mining, medicine or water quality with an open mind precisely because they have no expertise on such subjects. They make their findings exclusively on evidence brought by the parties.
Except when they don’t. In cases across the country, judges have given deference to governments and public health authorities rather than scrutinize the rationales for Covid-19 measures and mandates. Some have gone so far as to take “judicial notice” – finding facts without evidence – that the situation was as public health officials and government agencies represented it to be. In Saskatchewan, the father of a 12-year-old girl applied for a court order allowing his daughter to be vaccinated against Covid-19 over the objections of the girl and her mother. In September 2021, the Saskatchewan Court of Queen’s Bench granted the order. The judge found that vaccination was in the girl’s best interests and could proceed without her or her mother’s consent. His conclusion was not based on evidence about the girl’s risks from the virus and from the vaccine. Instead, he took “judicial notice” that the Covid-19 virus posed a serious and significant health risk to children like the 12-year-old, and that the Pfizer mRNA vaccine was safe and effective for children to receive.
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 notorious and uncontentious that having to prove them would be silly and a waste of judicial resources. No reasonable person would dispute that the sky is blue. That a statute with Royal Assent has been validly passed can be established by “readily accessible sources of indisputable accuracy.” Of such facts the court may take judicial notice. But this is a narrow exception to the general rule.
Judicial notice is not, however, meant to apply to the very issues that are in dispute. In the Saskatchewan case, the girl’s risk from the virus and from the vaccine were facts on which the outcome of the case depended. Instead of assessing competing evidence on those questions, the judge jumped the shark, concluding that “without the necessity of any specific proof 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.
On appeal, the Saskatchewan Court of Appeal held that it was improper to take judicial notice that the Pfizer vaccine was safe and effective. Yet it also concluded that the fact of the vaccine’s approval meant that no further inquiry about its safety and efficacy was necessary. Nothing in the mother’s evidence about the vaccine, the Court held, was of value. In the end, however, the appeal court reversed the order because of evidence the girl might harm herself if she was forced to be vaccinated against her wishes.
The Saskatchewan court was not alone in its embrace of the official Covid-19 narrative nor its reluctance to consider evidence that challenged its veracity. In December 2020, the Alberta Court of Queen’s Bench dismissed an application for an injunction against Covid-19 restrictions. It held the lack of evidence of their scientific basis to be irrelevant. In May 2021, the Nova Scotia Supreme Court granted the provincial government an injunction to prohibit protests about Covid-19 rules. It characterized protestors as willfully blind and having “a callous and shameful disregard for the health and safety of their fellow citizens.”
In June 2021, 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 right to liberty under the Canadian Charter of Rights and Freedoms, much less an unreasonable limit on that right. The Court compared the Covid-19 pandemic to being at war – and observed that during a war, governments are entitled to demand sacrifices from their people. The same month, the Ontario Superior Court granted a restraining order against three churches, barring them from holding services and noting 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.”
Fable 4: Justice is Blind
Blind justice means that the same rules and standards apply to everyone without arbitrary distinctions. When the law treats people as individuals rather than as members of groups, it does not matter whether they are black or white, man or woman, straight or gay, rich or poor. The law should not care who you are.
In June 2021, an Ontario high school student tried to sign up for a summer program. He was rejected because he was white. The “SummerUp” program, sponsored by the Ontario government, was open only to black students. His father filed a complaint with the Ontario Human Rights Tribunal alleging racial discrimination. In November 2022 – 17 months later – the Tribunal dismissed the complaint. White people, wrote the Tribunal, cannot claim discrimination.
The Ontario Human Rights Code says that every person has a right to equal treatment without discrimination. The Code, however, has a loophole. “Special programs” are exempt. Special programs give special treatment. They deliberately discriminate “to assist disadvantaged persons or groups to achieve or attempt to achieve equal opportunity.” A government, company or organization like a school board can apply to designate a discriminatory program as a special program.
