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The Implications of J.N. v. C.G. for SRL’s, Anti-Vaxxers, and the Judicial Role

NSRLP
Author: Shannon Meikle and Charlotte Sullivan, NSRLP

“When did it become illegal to ask questions? Especially in the courtroom?” This is the opening line to Justice A. Pazaratz’s decision in J.N. v. C.G., (2022). [1] This provocative line sets the tone for a decision delivered almost entirely through frank obiter. When reduced to its ratio, J.N. v. C.G. is a case about whether the court can require a parent to vaccinate their children, and whether a judge should rule on the appropriateness of these beliefs and decisions. What makes the decision notable is how Justice Pazaratz uses wide-sweeping comments to engage numerous societal issues, including free speech, democracy, political division, and the credibility of those with controversial opinions.

We strongly support COVID vaccinations, so commenting on this decision has been very challenging and raised a lot of discussion amongst the NSRLP team. On the one hand, the ratio is important for SRLs in giving guidance on how not to present evidence (ironically, the strategies so heavily criticized by Justice Pazaratz were those adopted by the represented and not the self-represented party) and rejecting scrutiny of their political beliefs as a means of evaluating their seriousness as litigants. On the other, the judge’s comments seem to reinforce an approach to vaccinations that is unsupported by scientific evidence. This sets up an interesting tension: political beliefs should not be used to dismiss a party’s case, but judges may comment on political issues.

Facts and law

In this case, a father filed a motion for his two young children to be vaccinated against COVID-19. The mother (and the children, ages 12 and 10) were against being vaccinated. Both parties filed affidavits and largely unsworn “exhibits” consisting of internet research on the safety of vaccines. The father’s evidence also consisted of evidence from the mother’s social media pages, which indicated her political allegiance to the People’s Party of Canada (PPC), which has vocally opposed vaccinations in the context of COVID-19, along with other protective measures. He additionally included pictures of the mother unmasked at a large rally and copies of posts from her social media pages, which he associated with COVID-19 conspiracies and vaccine hesitancy. According to Justice Pazaratz, these posts were included by the father to discredit the mother as a person, and to suggest that her views are unworthy of consideration. This is referred to by Justice Pazaratz as an, “odious,” “dubious,” and “offensive” tactic of the sort used by politicians to discredit their opponents, and which contributes to the extension of social and political divisions to family court.

Justice Pazaratz was satisfied that the mother had reasonable grounds for concerns over the vaccine and that the children’s wishes not to get the vaccine met the standard set out in Decaen v. Decaen (2013).[2] Ultimately, the court ruled in the mother’s favor, finding that political opinions cannot be used to vilify and discredit someone in the place of reliable evidence.

Political affiliation as evidence

Justice Pazaratz finds that neither political allegiances nor politicized beliefs can be used as a basis for prima facie dismissal of a party’s position. An opponent’s political affiliation or social beliefs are not prima facie evidence of “character” and cannot be used to substantiate a legal position.

In light of NSRLP’s concerns about previous judgments by Associate Chief Justice Rooke declaring that a litigant’s entire personal history including their political beliefs should be considered in making a designation of “vexatiousness” (for example Unrau v National Dental Examining Board, 2019 ABQB 283 (we have written about this on Slaw previously), we welcome the clarification that this type of material should not be relied on as evidence of character or anything else. In this respect, Justice Pazartz’s rejection of trawling through social media in “researching” SRL backgrounds is welcome.

However, we are concerned that in the process Justice Pazaratz is legitimizing anti-vaccine arguments that are presented as evidence without scientific justification. According to Justice Pazaratz, in a democratic society, “no one is a bad citizen for asking questions.” This prima facie non-partisan assertion has specific repercussions in the context of COVID-19 vaccine-related disputes. Justice Pazaratz seemingly legitimizes anti-vax or vaccine hesitant beliefs by declaring that the importance of vaccination is appropriate for judicial consideration.

Guidance for SRLs

This case also has implications for self-represented litigants (SRLs) and how they present evidence in family courts. Crucially, this case demonstrates the benefits of good preparation by self-represented litigants, and demonstrates that SRLs can present evidence just as well and as compellingly as their represented counterparts. At paragraph 79 Justice Pazaratz notes that the mother—who was self-represented—made “exhaustive efforts to inform herself” about the issue at hand; and moreover, that, “she invites discussion and exploration of both sides of the story, while the father seeks to suppress it.” He also rebukes the father—who was represented—for his dismissive, moralistic approach to her submissions. At paragraph 43, he commends the mother for “[presenting] all her evidence and [making] all her oral submissions in a calm, mature, articulate, analytical, extensively researched, and entirely child-focused manner”; and notes that her presentation as a self-represented litigant was both, “skillful and professional.” For SRLs, this case highlights the importance of presenting a good breadth of evidence in a dispassionate manner, as well as the value placed on litigants’ demeanor and professionalism in the courtroom. Frequently throughout his remarks, Justice Pazaratz rebukes the represented party for making personal attacks on the mother and commends the mother for avoiding taking the same tactic. By focusing on the legal principles at play, maintaining a professional demeanor, and presenting well-researched submissions, other SRLs in family court may be able to achieve similar success.

Writing for a broader audience?

Any discussion of this case would, of course, be remiss without commenting on the colourful tone of Justice Pazaratz’s reasons. The first 9 paragraphs feel more like the first lines of a courtroom drama than the first lines of a decision by the Ontario Superior Court of Justice. At paragraph 3, for instance, Justice Pazaratz deploys this rhetorical flourish to ask us, “How did we lower our guard and let the words ‘unacceptable beliefs’ get paired together? In a democracy? On the Scales of Justice?” Too often, legal decisions are written in an obscure and highly technical fashion that is needlessly confusing to anyone without the legal background to unpack their implications. With the increasing prevalence of self-representation in Canadian courts, we welcome a more accessible tone that speaks to a broader audience.

We remain concerned, however, that some may seize on this decision as judicial legitimation of anti-vaccine disinformation.

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[1] J.N. v. C.G., 2022 ONSC 1198

[2] Decaen v. Decaen, 2013 ONCA 218

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