Litigating Science Around COVID-19

Given the profound impact the pandemic has had on society, it’s obviously no surprise that questions around the governmental actions and other responses will continue to appear in our legal system for years.

While courts have taken judicial notice that the virus exists, which is perhaps not that controversial, they have also adopted and followed in many ways governmental messaging around the pandemic. This appears to be justified on an expediency and principled basis, at least early on in the pandemic when the information and evidence was still emerging.

Two years later, there is a greater appetite to challenge widely held notions, and to also have greater openness to the possibility that all of these issues are incredibly complex.

One of the most widely-discussed cases recently is Justice Pazaratz’s decision in J.N. v. C.G., 2022 ONSC 1198. While most family law decisions in Ontario to date have been about parenting time and challenges around isolation measures during lockdowns, this case squarely touches on parenting decisions on a contested issue of health care – vaccination for COVID-19. One of the parents and the young children (10 and 12) did not want to be vaccinated, while the other parent wanted the children vaccinated.

The decision starts as follows, before dismissing the motion,

[1] When did it become illegal to ask questions? Especially in the courtroom?
[2] And when did it become unfashionable for judges to receive answers? Especially when children’s lives are at stake?
[3] How did we lower our guard and let the words “unacceptable beliefs” get paired together? In a democracy? On the Scales of Justice?
[4] Should judges sit back as the concept of “Judicial Notice” gets hijacked from a rule of evidence to a substitute for evidence
[5] And is “misinformation” even a real word? Or has it become a crass, self-serving tool to pre-empt scrutiny and discredit your opponent? To de-legitimize questions and strategically avoid giving answers. Blanket denials are almost never acceptable in our adversarial system. Each party always has the onus to prove their case and yet “misinformation” has crept into the court lexicon. A childish – but sinister – way of saying “You’re so wrong, I don’t even have to explain why you’re wrong.”
[6] What does any of this have to do with family court? Sadly, these days it has everything to do with family court.
[7] Because when society demonizes and punishes anyone who disagrees – or even dares to ask really important questions – the resulting polarization, disrespect, and simmering anger can have devastating consequences for the mothers, fathers and children I deal with on a daily basis.
[8] It’s becoming harder for family court judges to turn enemies into friends — when governments are so recklessly turning friends into enemies.
[9] The motion before me is a typical – and frightening – example of how far we are drifting from cherished values. 

The case involved numerous scientific and unscientific claims, as well as arguments that the latter had been “debunked” by the former. In including the children’s own preferences, despite their young age, Justice Pazaratz also noted at para 79,
Pro-vaccine parents have consistently (and effectively) attempted to frame the issue as a contest between reputable government experts versus a lunatic fringe consisting of conspiracy theorists, and socially reprehensible extremists. This was absolutely the wrong case to attempt that strategy.
What’s clear is that courts are not equipped or prepared to deal with these types of issues, and perhaps they shouldn’t be.
In another recent decision in Ontario, Ontario v. Trinity Bible Chapel, 2022 ONSC 1344, Justice Pomerance reviewed the limitations imposed on religious gatherings. While obviously concluding that these measures infringed s. 2(a) of the Charter, the court also found that they were justifiable under s. 1.
The decision also opens with some very significant limitations and challenges with adjudicating such issues:

1. Scientific Debate: Various affidavits were filed on this hearing, including evidence from medical experts. These experts disagree on several points, including the extent to which Covid-19 posed an unprecedented threat to public health, the extent to which the virus can be transmitted outdoors, and the extent to which religious gatherings pose a greater risk of transmission than retail settings. My role is not that of an armchair epidemiologist. I am neither equipped nor inclined to resolve scientific debates and controversy surrounding Covid-19. The question before me is not whether certain experts are right or wrong. The question is whether it was open to Ontario to act as it did, and whether there was scientific support for the precautionary measures that were taken.

2. Hindsight is not the Standard: Hindsight is not the lens through which to assess government action in this case. Close to two years into the pandemic, we know more than we did in the past, but historical measures must be understood against the backdrop of historical knowledge. The question is not what we know now; it is what was reasonably known and understood at the time of each impugned action.

3. Scope of the Challenge: This case presents as motions to set aside three judicial orders, directing compliance with regulations imposing gathering limits. Different regulations were in force at different times. Some are challenged by the moving parties; some are not. Of those that are challenged, each must be evaluated independently against the backdrop in place at the relevant time.

4. Non-compliance with the Law: It is no secret that the moving parties have flouted the restrictions. That is a serious matter, but it does not bear on the constitutional analysis in this case. First, the disobedience has been addressed in other proceedings, where findings of contempt have been made and penalties imposed. Second, the claimants are seeking a general declaration of constitutional invalidity. Whatever the level of their compliance, they have the right not to be subject to an unconstitutional law: see R. v. Big M Drug Mart Ltd.1985 CanLII 69 (SCC), [1985] 1 S.C.R. 295 (“Big M”). Finally, constitutional analysis must logically presume compliance, as it is through compliance that the effects of the law are experienced.

5. Judicial Humility and Deference to the State:  The Charter confers upon the judiciary the power to invalidate law that is inconsistent with the Constitution. This is an important and legitimate function of the judiciary as a check on the exercise of executive authority and a means of ensuring the protection of minority interests. This authority does not, however, transfer the legislator’s pen into judges’ hands. The judicial lens is one governed by deference, not blind or absolute deference, but a thoughtful deference that recognizes the complexity of the problem presented to public officials, and the challenges associated with crafting a solution.

6. Judicial Humility and Deference to the Religious Claimants: Judicial humility also aids in understanding and appreciating the claimants’ tenets of religious belief and practice, and the extent to which a particular restriction impeded religious activity. Ontario does not dispute the sincerity of religious beliefs asserted in this case, though it does challenge the idea that all parishioners need to be together in one place at one time for services. There is no single or uniform standard for religious belief or practice. Such matters are inherently variable and profoundly personal. In determining whether capacity restrictions infringe freedom of religion, the court must pay deference to the claimants’ account of the resulting detrimental effects.

7. The Scope of this Decision: I have had the benefit of reading the scholarly decisions of other jurists who have presided over similar cases. I have taken valuable guidance from the decision of Joyal C.J. in Gateway Bible Baptist Church et al. v. Manitoba et al.2021 MBQB 219 (“Gateway”); the decision of Hinkson C.J. in Beaudoin v. British Columbia2021 BCSC 248 (“Beaudoin”); and the decision of Burrage J. in Taylor v. Newfoundland and Labrador2020 NLSC 125 (“Taylor”). At the same time, my ruling is, by necessity, defined by the evidence led in this case and the arguments presented by the parties before me. This decision is not to be taken as a general edict on, or comprehensive inquiry into, Ontario’s response to the pandemic. My task is to answer specific legal questions based on specific evidence led by specific parties.

The claimants argued that the government’s response was unnecessary, arbitrary, and overbroad. Of particular focus were governmental models employed by the government, which were claimed lacked sufficient or adequate scientific foundation.
The use of such models were also discussed this past weekend at the Runnymede Society’s (in-person) conference, where Prof. Ryan Alford emphasized that it is the government’s onus to adduce evidence to meet the “demonstrably justified” standard. Models, in his submission, were not themselves evidence, and should be scrutinized.
The National Judicial Institute’s “Science Manual for Canadian Justices” looks at the increasingly science-rich culture of the courtroom, specifically given the need for judges to assess expert evidence effectively and establish a proper threshold for admissibility. Scientific programming is provided to the judiciary to ensure that the justice system is not vulnerable to unreliable expert scientific evidence.
While judges already apply the rules concerning
the admissibility of opinion evidence, including evidence involving statistics and inferential strength, there will be incredible challenges in applying this to decision-making that occurred during the pandemic.
In part, it’s because the science has been ever-evolving, and decisions at one point in the pandemic were based on the best information that was available at that time, which Justice Pomerance described as the hindsight limitation. But it’s also because the individual rights based approach employed in many of these challenges directly conflict with the necessarily collectivist goals sought by the government in pandemic responses. These are heavily policy-infused decisions, which despite being imperfect, are undoubtedly focused and motivated by the broader public good.
Courts would understandably have some difficulty interfering with governmental decisions during a pandemic, where those decisions were directly informed by scientific advice. Forcing judges to impose competing scientific views, or penalizing decisions for not foreseeing complicated consequences or developments, seems to be asking for even more than what the courts are capable of doing.
During the pandemic, it seems that everyone has become an armchair epidemiologist, and has strong opinions one way or another about things. Those opinions may also find their way into cases, and courts will inevitably have to grapple further with the substantive and scientific nature of those claims.

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