The flag is before the courts

Few administrative labor court decisions have caused a lot of ink to flow like that issued by Administrative Judge Philippe Bouvier on March 23, 2021. By ordering that health workers assigned to “hot” and “frosty” areas in comprehensive health care centers wear respiratory masks ( The famous N95), it contradicted the analyzes of the National Institute of Public Health of Quebec (INSPQ), according to which the latest scientific data did not prove the superiority of this type of mask compared to the medical (intervention or surgical) mask of the workers involved.

This judgment gives the impression that the analysis of one person – even the judge – takes precedence over the choices that are made in light of the scientific knowledge available at a particular time.

We are, in fact, witnessing a legality conflict between science and law. On the other hand, INSPQ claims “that the opinions and recommendations it makes or the issues represent the state of science and the rules of art and that they are [sic] It cannot be delivered [sic] In question furthermore by recourse under LSST [Loi sur la santé et la sécurité du travail] », The judge sums up his decision. The INSPQ Public Prosecutor, perhaps to convince the judge, quoted a recent ruling by a Quebec court affirming “it is imperative not to follow INSPQ’s recommendations because by not following them. Failure to respect them, the employer is endangering the health of his employees”.

For his part, the judge replied that “Contrary to the allegations of his attorney general, [l’INSPQ] It has no special status to ensure that its opinions and recommendations are preponderant and that the court, in its evaluation of the evidence, must, from the outset, grant it either a binding character or even a weight in its probative value. ”Faced with a warning from the Quebec court, it is stated that in the aforementioned decision, The court did not encounter a practice of assessing contradictory evidence, as in the present case. ”

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In the present case, the relative effectiveness of the masks is at stake, and there is no scientific consensus on this topic. The judge acknowledges from the outset that “it is not for the court to settle a scientific disagreement or prove scientific facts,” but he states that “according to the disagreement before it, all the factual and scientific evidence that is presented to it, the court must evaluate its evidentiary value, or even its convincing index, To come to a conclusion. “

Having thus justified his dominant role in the circumstances and grounded the legitimacy of his decision, the Administrative Labor Court judge invoked the precautionary principle to enforce the respirator mask in “hot” and “cold” areas of CHSLDs.

He notes that this principle, which has already been upheld by the Supreme Court of Canada, is “implicitly enshrined in the introductory paragraph to Section 51 of the Occupational Safety and Health Act,” and that the National Institute of Statistics and Testing (INSPQ) is already saying that it takes this principle into account in its decisions. This vague and controversial principle allows the people who claim it to decide according to their greater or lesser sensitivity to risks. In short, Judge Bouvier’s decision reflects his sensitivity to risks, which cannot be measured “scientifically” and in a completely “objective” manner and ultimately require the exercise of self-judgment.

In the end, it was the judge’s view that prevailed, not that of INSPQ and its expert committees. But before we wonder what the legitimacy of rulings is based on in cases affecting society, let us recall another case in which scholars found themselves at the mercy of the court.

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Eliminate earthquake

In 2009, a very severe earthquake (6.3 on the Richter scale) killed more than 300 people in the small medieval town of L’Aquila in central Italy. Three years later, after a trial that was widely attended by citizens of that city, six geologists and seismologists who were members of the High Risks Committee were sentenced to six years in prison.

Among them were the country’s internationally recognized best scholars. The judge reprimanded them for not being careful enough in not recommending the elected officials to vacate the city. Colleagues around the world may have made it clear that it is impossible to predict exactly the date and severity of a future earthquake, and nothing has helped.

As for the judge, committee members had provided the elected officials with “inaccurate, incomplete and contradictory information” about the risk of a strong earthquake striking this region, which is often affected by small earthquakes. Many of them occurred in the months leading up to the disaster, which could herald a powerful earthquake.

The researchers reacted unanimously: this incomprehensible ruling would encourage scholars to stop joining such committees to communicate their knowledge of natural phenomena to politicians, or even to stop commenting on the press. Fortunately, this questionable decision was appealed, and two years later the six scholars were acquitted by three other judges.

Are you still guilty of the “precautionary principle”?

Despite this happy outcome, the judicialization of public decisions cannot exclude other harmful effects. If the Italian seismologists applied the “precautionary principle” and asked the elected officials to evacuate the city, but the ground remained motionless for three days, a week, or a month … the local economy!

But let’s go back to the epidemic. In recent months, in the face of vaccine shortages, INSPQ experts have suggested delaying the administration of the second dose. Their analysis showed that the first dose was more effective than the clinical studies – conducted by pharmaceutical companies, let’s not forget – indicated. Then the efficiency is determined at about 80%, which constitutes a very good protection. The World Health Organization also estimates that in the context of a pandemic, vaccines must be at least 50% effective in order to be useful. Delaying the administration of the second dose ensured that more people were vaccinated more quickly, without harming those who received the first shot. So the government accepted the recommendation.

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If the vaccine manufacturer or other people take legal action to enforce compliance with the initial vaccination protocol, the judge can also invoke the famous precautionary principle to say that it is dangerous to delay the second dose. He might not have wondered why the clinical trial had not planned to distribute the two doses to some guinea pigs in order to pursue the effect of the former over a longer period.

Society is increasingly demanding that judges decide instead of elected officials on matters that are increasingly distant from the law. However, do judges enjoy ruling more than scholars in a context of uncertainty? Since all judges are not equally sensitive and therefore do not share the same point of view, could their decisions not pose many, if not more, problems than those taken by experts, and which are upheld by the elected officials?

Even if science cannot judge the legitimacy of judges, it is doubtful whether replacing uncertainty in science with a court ruling necessarily constitutes progress.

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