Stopping anti-vaccination debate in the courts | Gary Joseph

Law360 Canada (March 8, 2021, 8:50 AM EST) --

Gary Joseph

Lawyer David Frenkel recently published his views on this topic in The Lawyer’s Daily. Mr. Frenkel argued that the justice system should not have given a platform in recent court proceedings for a mother to argue against the vaccination of her children with her estranged husband. I vigorously disagree with this view. First let me declare my bias. I was appeal counsel in the case Mr. Frenkel refers to: A.P. v L.K. 2021 ONSC 150. Let me also identify that my personal views on vaccination play absolutely no part in the views I am about to express. Finally, while the case has been published, I will be vigilant in not disclosing any matters of solicitor client privilege or any confidential matters.

Mr. Frenkel argues that there should be some process to keep cases of this nature out of the court system. While I recognize the need for courts to control the process before them and to exclude vexatious claims, the extent of same must be focused and not interfere with the rights of a citizen in a democratic society to voice opinions that may be unpopular and to pursue positions in disputes that are based upon sincere belief and are well motivated. Obviously disputes that cross the line into matters of discrimination, harassment or hate speech are not covered by this doctrine. We respect diversity of race, creed and religious belief. We must also respect those whose views and choices differ with our own with the caveat earlier noted.

Now moving on to the issue of legal representation of those unpopular beliefs and opinions, I will never subscribe to Mr. Frenkel’s views. Lawyers must be courageous in their representation all the while conducting themselves strictly in accordance with the Rules of Professional Conduct but never losing sight of the interests and instructions of their client. During the 1996 debate over the Defence of Marriage Act in the United States, the issue of gay rights was front and centre. Attorney Paul Clement, a highly respected appellate counsel and a Harvard Law School graduate, pushed back on those who criticized him for representing certain Republican politicians. Clement responded as follows:

“Representation should not be abandoned because the client’s position is extremely unpopular in certain quarters. Defending unpopular positions is what lawyers do.”

Mr. Frenkel argues that “frivolous cases” and the individuals who start them are rarely punished in the court system. Again, I disagree and take issue with the suggestion that unpopular cases or unpopular views are necessarily “frivolous.” Is there room in our society for such a narrow view? Who shall decide whether an unpopular view is “frivolous” and unworthy of court time and resources? I believe that lawyers are an essential pillar of our democratic society and that their representation of unpopular views stimulates debate. At times it leads to legislative or jurisprudential change. Think about those lawyers who were brave enough to champion gay rights 20 or 30 years ago or those who argued the abortion issue. No, we lawyers must never pull into our shells and shy away from difficult cases or cases that challenge popular views.

We grow as a society through healthy debate. Often our politicians turn away from issues to avoid voter backlash. Important issues find their way into our courts and without courageous lawyers taking on these matters, we as a society will suffer and are diminished by our collective timidness.

Gary S. Joseph is the managing partner at MacDonald & Partners LLP.

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