Ontario has started 2021 with a resounding blow against “junk science” after the outcome of a family’s vaccination dispute has left Canadian children better protected from parental misinformation.
The case involved two school-aged children whose parents had separated in 2013. Their father wanted them vaccinated; their mother did not. (None of the family members can be identified by name due to a publication ban surrounding the case.) The conflict went into arbitration with Toronto litigator Herschel Fogelman, which ended in 2018 with a controversial verdict: that it was in the children’s best interests to avoid vaccination.
Earlier this month Justice Jasmine Akbarali ruled to overturn that decision. Her reasoning neatly invoked the scientific method:
[Vaccination] addresses an unnecessary risk the children currently face: illness, permanent health consequences, or death from vaccine-preventable diseases. It does so in an appropriate way — through the administration of vaccines that are properly tested, and have been found to be safe and effective, with only minor side effects, in accordance with medical advice.
That’s information Fogelman didn’t have when he made his determination. And while it’s understandable for a person who’s not working in medicine to lack knowledge about particular health issues, a lawyer ought to have the critical thinking skills to differentiate between valid experts and peddlers of pseudoscience. In this case, those skills were demonstrably lacking.
As a result, when the mother’s lawyer brought in anti-vaccine fearmonger Shiv Chopra and discredited pediatrician-turned-homeopath Toni Bark, Fogelman accepted their alleged expertise without question. In fact, Chopra built his entire media career around the naturalistic fallacy, and Bark was disqualified as an immunology expert in a Michigan courtroom months before Fogelman rendered his judgment.
Even setting aside the source, some of the claims themselves should have been red flags for a critical thinker. Bark, for instance, insisted that the polio vaccine is worse than the disease itself. Thousands of Canadians killed or severely impaired by polio prior to the introduction of the Salk vaccine would presumably beg to differ. Has Fogelman never heard of an iron lung?
The mother used Fogelman’s credulity to her advantage, spending upwards of $65,000 to retain aggressive lawyers and fly in the anti-vax constellation’s brightest stars. She approached the arbitration as a crusade, with all the fervor of the true believer. The father took a very different approach, skipping legal counsel altogether and trusting that the truth would win out:
I represented myself in the court case since I didn’t have the finances for a lawyer at the time, and I truly believed my case would go through. After all, vaccine hesitancy is known to be a global health threat.
On his own, he was unable to retain an expert witness in time to counter Bark and Chopra’s claims — in part because the mother’s team filed the expert witness reports less than two weeks before the hearing, leaving him precious little time to make arrangements.
The mother also enlisted their children to play a part in the cause, passing on vaccine horror stories to instill fear in them, even showing the older child movies about the dangers of vaccines. Fogelman cited the children’s anxiety as a reason behind his decision, apparently without curiosity about its source; Akbarali ordered the mother to stop feeding her children anti-vax propaganda.
Saddled with an order to pay his ex-wife’s legal fees in excess of $34K, the father turned to crowdfunding to finance his appeal. When he returned to court, it was with a lawyer in tow, as well as a suite of expert witnesses that included a local public health officer and a physician from Toronto’s Hospital for Sick Children.
But he might not have gotten his day in court at all if not for the intervention of Toronto’s Medical Officer of Health, Eileen de Villa. Concerned about the medical implications of settling health-care disputes in legal settings, she asked that the court take judicial notice of vaccine safety.
The doctrine of “judicial notice” is a legal time-saver in which the court declares a matter true without needing to hear evidence on it. For example, a Crown attorney petitioned the court to take judicial notice of the Holocaust as a historical event in a 1980s trial against a noted Holocaust denier.
At the time when de Villa made her request, the safety of vaccines had never been the subject of judicial notice in a legal case. Since then, however, Ontario Court Justice John Finlayson has taken judicial notice of the issue in another parental dispute, noting that “there is no debate in the medical community” over vaccine safety.
These two instances are now available as case law, improving the odds that parents finding themselves in the same position as this father won’t have to waste time and energy re-litigating vaccine safety. That may become particularly important in the coming months if Health Canada approves COVID-19 vaccines for use in young children.
(Image via Shutterstock. Thanks to Lorne for the link)