With a respectful dig at a colleague who ruled otherwise in a recent headlining-making case, a Newmarket family court judge has sided with a father who wants his child vaccinated against COVID-19.
“Vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes,” wrote Superior Court Justice David A. Jarvis in a decision released earlier this month.
“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.”
At the heart of this case is AD, a 12-year-old with high-functioning autism who lives with her father in Thornhill and contracted COVID November 2021.
In January, with Omicron surging, her dad wanted her vaccinated. Her mom was opposed.
Like so many of these cases during the pandemic, it landed in court.
Just days before their hearing, Justice Alex Pazaratz issued a controversial ruling denying a father’s motion to have his two younger children vaccinated over the objections of their mother, and the kids themselves, who believe the shots have potentially serious side effects.
Unlike numerous other judges, he refused to take “judicial notice” — accepting as an obvious and indisputable fact — that government-approved vaccinations for children against COVID are safe and in their best interest.
Pazaratz found the mom shouldn’t be dismissed as some “crazy anti-vaxxer” for having concerns about what she called the vaccine’s unresolved safety concerns for children. He even accepted some of her research as “thought provoking” — including articles by Dr. Robert Malone, whose claims against the vaccines have been discredited and denounced by medical professionals as dangerous.
But Pazaratz wrote Malone, whether right or wrong, “can hardly be dismissed as a crackpot or fringe author.”
The Hamilton judge also argued against accepting that “the government is always right” — pointing to past mistakes including the residential school system, Japanese and Chinese internment and the sterilization of Inuit women.
“We all have to guard against the unconscious bias of thinking ‘Why won’t these people just do what the government tells them to do?’” he wrote. “We have to decide on the basis of the best interests of each particular child in each particular fact situation.”
In the situation before him, Pazaratz sided with the children — ages 12 and 10 — who had strong opinions against getting the jab that was verified by an experienced social worker.
But those circumstances were unique to that family, Jarvis said. That wasn’t the evidence for AD, who functions at the level of a child in Grade 1 and has no opinion on getting a vaccine.
And unlike his colleague, Jarvis said he was prepared to take judicial notice of certain facts he believes aren’t in dispute “among reasonable persons” including: “The COVID virus kills; The virus is transmissible; The virus can, and has, mutated; Variants of the virus are more transmissible than others; and Vaccines work; and are generally safe and have a low risk of harmful effects, especially in children.”
The Newmarket judge quoted another recent case where Justice Robert Charney suggested that as general presumption, it’s in the best interests of a child to be vaccinated.
“This Court agrees,” Jarvis concluded. “In J.N. Pazartz J. asked rhetorically whether judicial notice should be taken of the fact that all children should get vaccinated. The answer in my view is that parents should rely on government guidance and should have their children vaccinated unless there is a compelling reason not to do so.”