Children’s Rights & the COVID-19 Vaccine

A case summary on OMS v EJS, 2021 SKQB 243.

Should a 12-year-old child be ordered to receive the COVID-19 vaccine if that child does not want to be vaccinated? Justice Megaw undertook an extensive analysis of relevant case law and legislation to address exactly that question in OMS v EJS, 2021 SKQB 243. Though a myriad of issues were discussed, the child’s best interests, views and preferences were heavily weighted in the rendered decision.

In considering the child’s views and preferences, the Court explained “the individual physical, intellectual, and psychological maturity of the minor, the minor’s lifestyle [and] the nature of the parent-child relationship” (Manitoba Law Reform Commission, Minor’s Consent to Health Care, p 32). Justice Megaw was not satisfied that the child’s views were solely her own and exercised the Court’s parens patriae jurisdiction explaining that she could not “leave the decision in this regard in the hands of a 12 year old”.

Despite a morass of evidence and expert reports, the Court took judicial notice of certain facts related to COVID-19 and vaccinations – relying upon the explanation in BCJB v E-RRR, 2020 ONCJ 438 (“BCJB”) that “Judicial notice is the acceptance by a court or judicial tribunal, in a civil or criminal proceeding, without the requirement of proof, of the truth of a particular fact or state of affairs. Facts which are (a) so notorious as not to be the subject of dispute among reasonable persons; or (b) capable of immediate and accurate demonstration by resorting to readily accessible sources of indisputable accuracy, may be noticed by the court without proof of them by a party”(p 145).

Summarily, Justice Megaw found that the risks associated with COVID-19 outweighed the potential risks of being vaccinated. the Father was given the authority to arrange for the child to be vaccinated for COVID-19 forthwith and was awarded $2,000.00 in costs.

This case does an excellent job of summarizing the leading cases on COVID-19 and vaccinations. For those interested, check out the full case here: https://canlii.ca/t/jj5h7

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