Child Vaccination Case

Child Vaccination Case

Child Vaccination Case

Re: the Legality of which Parent may decide if their child(ren) should be vaccinated or not

 

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Facts of the Case

  • Dates: (heard) Feb 18, 2022
  • Location: Ontario, Canada
  • Court: Ontario Superior Court of Justice
  • Case #: J.N. v. C.G., 2022 ONSC 1198 (CanLII)
  • Plaintiff: Father
  • Plaintiff’s Lawyer: Jesse Herman
  • Defendant: Mother (Self-Represented)
  • Trial Type: Family Court
  • Judge: A Pazaratz
  • Status: Decided (Feb 22, 2022)
  • Verdict: for the Defendant


*updated March 11, 2022

 

Background

A father applied for an order that his two children, LEG age 12 and MDG age 10, receive covid vaccinations, while their mother opposed this. [1] Here, the parents, both in their mid-30s, separated more than seven years ago.

The oldest, a 14-year-old boy, lives primarily with his father and chose to vaccinated against COVID-19 last fall – a decision both parents supported, the ruling says. [2]

The two younger children, a 12-year-old girl and a 10-year-old boy, live primarily with their mother. Both were interviewed twice by a social worker and explained why they didn’t want to be vaccinated, with the youngest also expressing fears that his father would force him to get the shots, the document says. [2]

The mother stressed she is not against vaccines overall, adding all three have received their regular immunizations, the ruling says. She also stated she would be open to having the younger two – who have already had the virus and recovered – get COVID-19 shots at a later date “if safety concerns can be better addressed,” it says. [2]

 

Significance

This case makes significant the importance of evidence, and careful judgment

 

Plaintiff’s Argument

The mother’s material included an article by Dr. Robert Malone, the inventor of the mRNA vaccine; a Pfizer fact sheet; a peer-reviewed article entitled “Immunization with SARS Coronavirus Vaccines Lead to Pulmonary Immunopathology on Challenge with the SARS virus”; and an article from the Centers for Disease Control and Prevention (CDC) entitled “Clinical Considerations: Myocarditis and Pericarditis after Receipt of mRNA Covid-19 Vaccines among Adolescents and Young Adults”. [1]

 

Defendant’s Argument

Finally, the Court considered information obtained from the internet including a “Position Statement” from the Canadian Paediatric Society;  a document from the Government of Canada entitled “Vaccines for Children: Deciding to Vaccinate”; and an article from the Canada Communicable Disease Report entitled “COVID-19 Cases and Hospitalizations Surge Among Children”, all proffered by the father.  [1]

The father, meanwhile, submitted fact sheets issued by the government and the Canadian Paediatric Society, as well as “numerous downloads” from the mother’s social media accounts on allegations she was promoting conspiracy theories, the ruling says. [2]

 

Relevant Prior Judgements/ Cases

Other similar cases have ruled in favor of the children being  vaccinated

 

Decision

The judgement

The decision was in favor of the mother who presented more evidence. [1]

Superior Court Justice Alex Pazaratz rejected a father’s motion to have his two younger children – ages 12 and 10 – vaccinated despite their mother’s and their own objections, and cautioned against dismissing certain viewpoints without evidence. [2]

The Judge stated that the children’s mother has the responsibility to make decisions for the children in her care; and that she has consistently made informed and child-focused decisions. He says she is not a bad parent, simply by virtue of asking questions of the government. The father’s application to vaccinate the children is dismissed [1]

The Ontario judge says he is not prepared to accept as fact that vaccinating children against COVID-19 is what’s best for them simply because it’s encouraged by the government, noting a number of factors – including the children’s own preferences – must be taken into account. [2]

Weighing the Evidence

The mother’s evidence focused entirely on medical and scientific evidence while the father focused on labelling and discrediting his children’s mother in a dismissive attempt to argue that her views were not worthy of consideration. Why? Because she had a political affiliation with the People’s Party of Canada led by Maxine Bernier; had perpetuated covid-related conspiracy theories and vaccine hesitancy on social media; and failed to wear a mask at a large rally. [1]

Puzzled by this evidence, Justice Pazaratz queries how any of these allegations and many similar ones are relevant and how far is one to take “guilt by association”? [1]

He remarks that “it is of little consequence that an individual litigant chooses to advance such dubious and offensive arguments. Even though the father may not admit this, this is still a free country and people can say what they want…including him. But there’s a bigger problem here. An uglier problem.” [1]

the children’s views took centre-stage in the analysis. A Views of the Child Report indicated that neither child wished to be vaccinated, and Justice Pazaratz agreed that their views were not determinative, but also could not be completely ignored, relying on Article 12 of the United Nations Convention on the Rights of the Child and the list of factors to be considered as set out in Decaen v. Decaen 2013 ONCA 218. The Court reviewed the children’s histories of regular immunizations, and their consistent reasons for rejecting a covid vaccination, which did not appear to be frivolous, superficial, or poorly thought out. [1]

Finally, the Court considered information obtained from the internet including a “Position Statement” from the Canadian Paediatric Society;  a document from the Government of Canada entitled “Vaccines for Children: Deciding to Vaccinate”; and an article from the Canada Communicable Disease Report entitled “COVID-19 Cases and Hospitalizations Surge Among Children”, all proffered by the father. [1]

Justice Pazaratz noted that information obtained from the internet can be admissible if it is accompanied by indicia of reliability, including whether it comes from an official website from a well-known organization, whether the information is capable of being verified and whether the source is disclosed so that the objectivity of the person or organization can be assessed. [1]

However, he also remarked that in almost all cases in Canada where COVID vaccinations have been ordered the court has made a finding that on the face of it, the internet materials presented by the objecting parent have been grossly deficient and at times, dubious. “The lack of an equally credible counter-point to government recommendations may have well been determinative in those earlier cases”. [1]

 

Notably, the Court recited the warning from Pfizer, a company that makes the vaccine, as follows: [1]

“There is a remote chance that the Pfizer vaccine could cause severe allergic reaction… Signs of an allergic reaction include difficulty breathing, swelling of the face and throat, a fast heartbeat, a bad rash, dizziness and weakness. Inflammation of the heart have occurred in some people who have received the Pfizer vaccine….” [1]

Justice Pazaratz also quotes from Dr. Robert Malone who warns that [1]

“therapeutic approaches that are still in the research phase are being imposed on an ill-informed public” and that  “public health leadership has stepped over the line and is now violating the bedrock principles which form the foundation upon which the ethics of clinical research are built.” [1]

‘Anyone reading even some of the articles presented by the mother would likely conclude that these are complicated and evolving issues, and there can be no simplistic presumption that one side is right and that the other side is comprised of a bunch of crackpots. That’s why the court should require evidence rather than conclusory statements.” [2]

The father, meanwhile, provided no evidence that the mother’s views had been debunked, the judge wrote. [2]

 

On Government Mistakes

Justice Alex Pazaratz found that the vaccines’ potential side effects justified her caution. He cited a long list of rights abuses to explain why courts should not simply defer to government experts. [3]

Justice Pazaratz points out other areas of life and the law where the government was wrong, including the Motherrisk expert evidence that turned out to be disastrous for families; the residential school system; the sterilization of Eskimo women; and the thalidomide crisis of the 1950’s. [1]

“What about the residential school system? For decades the government assured us that taking Indigenous children away – and being willfully blind to their abuse – was the right thing to do. We’re still finding children’s bodies,”[3]

“How about sterilizing Eskimo [sic] women? The same thing. The government knew best. Japanese and Chinese internment camps during World War II? The government told us it was an emergency and had to be done. Emergencies can be used by governments to justify a lot of things that later turn out to be wrong.” [3]

 

on “Judicial Notice”

Taking judicial notice means recognizing certain facts as indisputable, so they can be introduced as evidence by one side or the other without having to verify them. The Supreme Court of Canada has said courts may take judicial notice of facts that are so generally accepted as to be beyond debate among reasonable persons. [5]

Should judges sit back as the concept of ‘Judicial Notice’ gets hijacked from a rule of evidence to a substitute for evidence,” he wrote (emphasis in the original). [5]

“After considering all of the evidence– or often the lack of evidence—can the court just fill in the blanks and take judicial notice of the fact that all children should get vaccinated?… Because if “all judges just “know” that children should be vaccinated, then we should clearly say that that’s what we’re doing”. [1]

 

on tolerance

Justice Pazaratz then identifies the intolerance, vilification, and dismissive character assassination in family court. He presumes that he is seeing more of it because it is “rampant outside the courtroom” and appears to be socially acceptable to denounce, punish and banish anyone who doesn’t agree with you. An example? A recent case where a mother sought to terminate a father’s equal parenting time with their child because he was “promoting anti-government beliefs”. Judge Pazaratz declares: “…in Communist China that request would likely have been granted”. But not in Canada, [1]

 

On Previous Cases

The ruling represents a departure from earlier Canadian cases involving disputes over COVID-19 vaccinations, where courts have taken what’s called “judicial notice” – essentially accepting statements as fact – that immunization is beneficial for children, said Alyssa Bach, an associate lawyer at Shulman & Partners LLp. [2]

We now have cases where judges have taken that judicial notice that the vaccine is in the best interest, and now one where it was decided that that wasn’t the case. And so it’s a reminder that each family’s circumstances, and the circumstances of the children, are going to be taken into consideration on a case-by-case basis,” she said Tuesday. [2]

“It’s notable that Justice Pazaratz, in his decision, did go through the other cases where this judicial notice had been taken and distinguished it and how this case was different than the other cases.” [2]

  • In most of the previous cases, the children were younger, so their views on COVID-19 shots were “either unascertainable or less relevant because of the child’s lack of maturity,” the judge wrote in his ruling. [2]
  • And in the cases where the children’s preferences were overridden, the court found the parent seeking vaccination had presented more reasonable information to the children and made more compelling arguments in court, Pazaratz said. [2]
  • As well, the court in many of those cases found the materials presented by the parent opposed to vaccination were “grossly deficient, unreliable and – at times – dubious. This lack of an equally credible counterpoint to government recommendations may well have been determinative in those earlier cases,” he said. [2]
  • Not so in the case at hand, the judge noted. [2]

 

Aftermath

The parties agreed in Minutes of Settlement that each party would have sole-decision making authority for the child(ren) in their care and control, however, their agreement also stated that: “The issue of LEG and MDG receiving a covid vaccine shall remain a live issue and shall be determined at a later date. The child CBG can determine whether or not he wants to be vaccinated now”. [1]

Jesse Herman, who represents the father, declined to say whether his client would seek to challenge the ruling. [2]

‘At this time, all I can comment is that we strongly disagree with the decision that was made,” he said in an email. [2]

 


Further Research

Court Documents:
In the news:
  • …More information is needed…

 

Media


……

source: ….


Child Vaccination : Dr. Julie Ponesse

source: CanadianCovidCareAlliance


….

source: ….

 

References

  1. Ground-Breaking Covid Decision in Family Law
  2. What? There ‘s A Common Sense Judge In The House , And The Mainstream Media Carried It?
  3. Ontario judge rules mother doesn’t have to vaccinate children against COVID-19

 

Keyword

Canada, Child, Children, China, Communist, ethics, Family, Father, Heart, Inflammation, Justice, Malone, mis-information, Mother, Motherrisk, myocarditis, Ontario, Parents, Pazaratz, Pfizer, sterilization of Eskimo women, thalidomide, United Nations Convention on the Rights of the Child, Vaccination


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PoliceMandateCase:HighCourt

PoliceMandateCase:HighCourt

Police Mandate Case: High Court

Re: the Legality of mandating vaccines to the “Frontline Employees” (NZDF & police) of New Zealand

 

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Facts of the Case

  • Dates: Jan 6, 2022 (filed)
  • Location: New Zealand
  • Court: High Court
  • Case #: CIV-2022-485-000001/ [2022] NZHC 291
  • Plaintiff: Yardley, Wallace & a Defence Force Worker
  • Plaintiff’s Lawyer: M I Hague & A P Miller
  • Expert Testimony: Dr Petrovsky
  • Defendant: Minister for Workplace Relations & Safety, Commissioner of Police, Chief Of Defence Force, & the Attorney General
  • Trial Type: High Court
  • Justice: Francis Cooke
  • Status: Decided (Feb 25, 2022)
  • Verdict: for the Plaintiff


*updated March 10, 2022

 

Background

The challenge, put forward by a three Defence force and police employees, questioned the legality of making an order under the Covid-19 Public Health Response Act to require vaccination for frontline employees. [1]

and who face termination if they are not vaccinated by 1 March 2022. [2]

The challenge was supported by a group of 37 employees affected by the mandate, who submitted written affidavits to the court. [1]

Minister of Workplace Relations and Safety Michael Wood, Deputy Police Commissioner Tania Kura and NZDF Chief People Officer Brigadier Matthew Weston filed affidavits defending the mandate. [1]

As it stands, 164 of the overall police workforce of nearly 15,700 were affected by the mandate after choosing not to be vaccinated. For NZDF, the mandate affected 115 of its 15,500 staff. [1]

The Police and Defence Force mandate was introduced by the Minister for Workplace Relations and Safety by the COVID19 Public Health Response (Specified Work Vaccinations) Order 2021 in December 2021. It required all Defence Force personnel and all Police constables, recruits and authorised officers to receive two doses of the vaccine by 1 March 2022. It was additional to existing vaccination policies Police and Defence had already introduced internally.  [3]

 

The 25-year police veteran Detective Senior Sergeant Ryan Yardley says the family’s decision to not get the Covid vaccine exposed them all to unfair treatment, unable to work, to go to restaurants and cafes, or to associate with friends. [4]

“And then I watched the mandates rolling for the teachers, and then the hospital staff, and I could see the harm and hurt that it was doing across society. Just from talking to friends and other people and hearing everyone’s stories. And that does not align with my values. And then the fact that people started getting separated and discriminated in society in relation to where they can and can’t go.” [4]

He and his family were not just opposed to the vaccine mandate – they were also personally against being vaccinated. “Everyone has to weigh that up for themselves personally and try and figure out the benefit versus risk scenario,” he said. [4]

“Because obviously, there are some known side effects that are coming out, myocarditis and other ones and I think it’s affecting more of the younger guys. I’m just slightly above that that age bracket, but it’s enough to make me concerned.”[4]

 

Significance

The landmark case means that the police and NZDF cannot be fired for refusing to take the experimental covid vaccine. This case may be used to overthrow all of PM Ardern’s mandates in New Zealand. [1]

 

Plaintiff’s Argument

The applicants challenge the Order on four main grounds: [2]

(a) that the Order was not properly made for the purposes of the Act and it is inconsistent with those purposes; and

(b) that the Order is inconsistent with other legislative provisions in the Defence Act 1990, the Policing Act 2008 and other legislation, and accordingly unlawfully purports to suspend the operation of other legislation; and

(c) that the Order fails to meet the Crown’s obligations under the Treaty of Waitangi for being inconsistent with Treaty principles, including because of disproportionate impact on Māori; and

(d) that the Order is unlawful as it involves an unjustified limit on rights protected by the NewZealand Bill of Rights Act, particularly the right to refuse to undergo medical treatment (s 11), the right to manifest religion (s 15), the right to be free from discrimination (s 19) and other rights recognised by s 28 of the Bill of Rights (including the right to work, and of minority groups to enjoy their culture and practice of religion).

The group relied on two aspects of the Bill of Rights – the right to decline a medical procedure and the right to religious freedom. [1]

On the religious freedom argument, a number of those who made submissions referred to their fundamental objection to taking the Pfizer vaccine, given that it was tested on the cells that were derived from a human foetus. [1]

expert testimony

expert evidence from Dr Nikolai Petrovsky. DrPetrovsky is presently the Director of the Diabetes and Endocrinology Department of Flinders Medical Centre, Academic Professor at Flinders University, and Director of Vaxine Pty Ltd, a biotechnology company specialising in vaccine development and formulation. In this latter role he has developed a vaccine for COVID19 which is presently in use in Iran. Finally the applicants rely on expert evidence from Raharuhi Koia, a Minister within the Presbyterian Church of Aotearoa NewZealand. [2]

 

Defendant’s Argument

…More information is needed…

 

Relevant Prior Judgements/ Cases

Three judicial review proceedings have been heard in the High Court challenging such orders. [2]

1. In September 2021 in GF v Minister of COVID19 Response and Others Churchman J dismissed a challenge to an order bought by a former employee of the New Zealand Customs Service who had had her employment terminated. Two arguments were addressed that the order was ultra vires the Act, and that it was irrational. [2]

2. In October in Four Aviation Security Service Employees v Minister of COVID19 Response I then heard and dismissed a challenge to the order relating to Customs Service employees of broader scope, which included an argument that the order breached the New Zealand Bill of Rights Act 1990 by being an unjustified limit on the right to refuse to undergo any medical treatment as affirmed by s 11.3 I concluded that the order was a justified limit on that right. In doing so I noted: [2]

There is a last point of significance. This case concerns the measure that was introduced when New Zealand had eradicated the virus after the first outbreak, and was seeking to prevent a further outbreak (or delay a further outbreak until a greater proportion of the population is vaccinated, means of treating and managing the virus are better known, and the health system is better organised to address such an outbreak). Since that time it is a matter of judicial notice that an outbreak has occurred in Auckland, and that COVID19 is spreading. It does not appear that this outbreak can be eliminated, reflecting the greater transmissibility of the Delta variant. Whether the challenged measure would remain demonstrably justified on the basis that it contributes to addressing the spread of the virus in circumstances when the virus is endemic in at least parts of New Zealand is an open question. This question is not before me. I note that under s 14(5) of the Act the Minister and DirectorGeneral are obliged to keep their COVID19 orders under review. [2]

3. Finally in November in Four Midwives v Minister for COVID19 Response Palmer J heard and dismissed a claim advanced by certain midwives affected by a vaccine mandate, together with the first part of a challenge to the mandate brought by certain teachers and doctors. Palmer J rejected the argument that the orders were not within the empowering provision of the Act notwithstanding it did not explicitly refer to vaccination. Palmer J endorsed the observation made in Four Aviation Security Services Employees that it was surprising that the legislation had not specifically addressed vaccination and the issues it raised. The second claim in the proceedings brought by teachers and doctors that the relevant order is not a justified limit on the right under s 5 of the Bill of Rights is to be heard shortly. That question was not addressed by Palmer J. [2]

 

Decision

The Order made in the present case is nevertheless unlawful and is set aside. [2]

Justice Francis Cooke ruled that ordering frontline police officers and Defence staff to be vaccinated or face losing their job was not a “reasonably justified” breach of the Bill of Rights. [1]

Justice Cooke agreed with the claim, saying that “an obligation to receive the vaccine which a person objects to because it has been tested on cells derived from a human foetus, potentially an aborted foetus, does involve a limitation on the manifestation of a religious belief.” [1]

However, Justice Cooke disagreed with the claimants’ broader claims that requiring vaccination is inconsistent with holding religious beliefs more generally. [1]

“I do not accept that a belief in an individual’s bodily integrity and personal autonomy is a religious belief or practice. Rather it seems to me, in the circumstances of this case, to be a belief in the secular concept referred to in section 11 of the New Zealand Bill of Rights Act.” [1]

Justice Cooke also agreed with the claim that the mandate impinged on the right to decline a medical procedure. [1]

The judge said that while it’s clear the government isn’t forcing Police and NZDF employees to get vaccinated against their will and they still have the right to refuse vaccination, the mandate presents an element of pressure. [1]

“The associated pressure to surrender employment involves a limit on the right to retain that employment, which the above principles suggest can be thought of as an important right or interest recognised not only in domestic law, but in the international instruments,” Justice Cooke stated. [1]

But in considering the two claims, Justice Cooke also considered whether or not the mandate fell within the definitions laid out in the Covid-19 Public Health Response Act. [1]

The court accepted that vaccination has a significant beneficial effect in limiting serious illness, hospitalisation, and death, including with the Omicron variant. However, it was less effective in reducing infection and transmission of Omicron than had been the case with other variants of Covid-19. [1]

“In essence, the order mandating vaccinations for police and NZDF staff was imposed to ensure the continuity of the public services, and to promote public confidence in those services, rather than to stop the spread of Covid-19. Indeed health advice provided to the government was that further mandates were not required to restrict the spread of Covid-19. I am not satisfied that continuity of these services is materially advanced by the order,” the Judge said. [1]

“Covid-19 clearly involves a threat to the continuity of police and NZDF services. That is because the Omicron variant in particular is so transmissible. But that threat exists for both vaccinated and unvaccinated staff. I am not satisfied that the order makes a material difference, including because of the expert evidence before the court on the effects of vaccination on Covid-19 including the Delta and Omicron variants.” [1]

An additional claim that the mandate would disproportionately affect Māori was dismissed by Justice Cooke. [1]

 

Aftermath

Nzherald.co.nz reports: The lawyer for the police and Defence staff at the centre of the claim is now calling for the suspended workers to return to their jobs immediately, saying many have given decades of service to their community and are still committed to their jobs. [1]

 

Response from the Plaintiffs

After overturning Police and Defence vaccine mandates in court,  lawyer Matthew Hague, for 200-plus uniformed personnel has written to the Prime Minister today giving her till Friday to remove ‘discriminatory’ vaccine certificates too. [4]

“The Covid vaccination certificates requirement does not prevent or limit the risk of the outbreak or spread of Covid-19,” he wrote. “United We Stand ask that you immediately revoke the order or amend it to remove the Covid vaccination certificates requirement.”

“If the Covid vaccination certificates requirement is not removed by 4 March 2022, United We Stand has instructed us to apply for judicial review of the order.” [4]

He has also written to Police Commissioner Andrew Coster and Chief of Defence Air Marshal Kevin Short, saying it was not enough to just pause the termination processes. Those who have taken leave without pay should now be allowed to return to work, and those who resigned under threat of dismissal should be allowed to get their old jobs back. [4]

“Now that the High Court has determined that the order is unlawful and should be set aside, there is no basis for the ultimatum given to these workers. They must immediately be given the option of being reinstated with backpay.” [4]

Hague and Yardley confirmed there were ongoing discussions about the next steps – which may include the steeper legal challenge of suing the Government for damages. But first, they want an apology for the “enormous amount of harm” done to the officers and their families. [4]

The court heard evidence of 164 police, and 115 defence staff, who were still refusing to be vaccinated at the start of this month. It’s thought the full number of affected personnel (uniformed and civilian) is higher than that, because some simply resigned rather than face dismissal. [4]

Ryan Yardley told Newsroom that for him, a core principle of Christianity was accepting everyone – not discriminating against particular groups like those who refused to be vaccinated.  Yardley said the mandates went against everything he believed in – his personal faith, and 25 years as a police officer adhering to the Bill of Rights. [4]

“To have something so fundamental stripped away from you, as that right to refuse any kind of medical treatment, just didn’t sit well. [4]

Response from the Defendant

It’s not immediately clear how many Police and Defence personnel, uniformed or civilian, may seek their jobs back. The police said they had retracted 42 termination letters – but acknowledged there were at least 100 more who had taken leave without pay, and more still who had resigned. [4]

Workplace Relations and Safety Minister Michael Wood said the High Court judgment was clear that it was not questioning the efficacy of vaccines nor the role of mandates per se, but just whether they were justified specifically for Police and Defence business continuity. [4]

“As the decision has only just been released, we will take time to consider it and seek advice on next steps,” he said. “The requests for vaccination mandates originally came from Police and Defence, so before making any decision we will go back to them to assess the implications for their operations. [4]

“No Defence and Police terminations will proceed at this time. Affected staff in Police and Defence are being advised.” [4]

 

 

Media


NZ High Court Stops Police Mandate

source: Truths Uncensored


NZ High Court Stops Police Mandate for Religion

source: Faith Reporters


NZ Military & Police Mandate Stopped

source: AussieFighter.


NZ High Court Rules against Mandate

source: Lawyer Sue Gray

 

References

  1. New Zealand High Court ENDS Jacinda Ardern’s Vaccine Mandate: “It’s a Gross Violation of Human Rights”
  2. Court Ruling
  3. High Court Official Media Release
  4. Govt faces legal ultimatum: End mandates and vaccine passes, now

 

Keyword

Arden, Bill of Rights, bodily integrity, Cooke, Covid-19 Public Health Response Act, foetus, freedom, High Court, Jacinda, Justice, Mandate, New Zealand, New Zealand Bill of Rights Act, NZDF, personal autonomy, PM, Religious, Supreme Court, Vaccine


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