Few of the decisions of the Administrative Labor Tribunal have caused so much ink to flow as that rendered by administrative judge Philippe Bouvier on March 23, 2021. By ordering that health workers assigned to “hot” and “lukewarm” areas of CHSLDs wear respiratory masks (the famous N95), it went against the analyzes of the National Institute of Public Health of Quebec (INSPQ), according to which the most recent scientific data did not prove the superiority of this type of mask compared to the medical mask (intervention or surgical) for the workers concerned.
This judgment gives the impression that the analysis of a single person – even a judge – takes precedence over choices made in the light of the scientific knowledge available at a given time.
We are in fact witnessing a conflict of legitimacy between science and law. On the one hand, the INSPQ “claims that the opinions and recommendations it gives or issues represent the state of science and the rules of the art and that they [sic] cannot be delivered [sic] in question and moreover by a recourse under the LSST [Loi sur la santé et la sécurité du travail] », Summarizes the magistrate in his decision. The prosecutor of the INSPQ even, perhaps to impress the judge, quoted a recent judgment of the Court of Quebec affirming “that it is necessary to be shameless not to follow the recommendations of the INSPQ since by not them. not respecting it, the employer endangers the health of its employees ”.
For his part, the judge replied that “contrary to the claims of his prosecutor, [l’INSPQ] does not have a special status which ensures that its opinions and recommendations have a preponderant character and that the Tribunal, in its assessment of the evidence, must grant it, from the outset, either a binding character or even preponderant in its value probative ”. And faced with the warning from the Court of Quebec, he recalls that in the cited decision, “the Court was not faced with an exercise of assessing contradictory evidence, as in the present case”.
In the present case, it is the relative effectiveness of the masks that is at stake. And there is no scientific consensus on this subject. The judge admits from the outset that “it is not for the Tribunal to settle a scientific controversy or to establish scientific truths”, but he recalls that, “depending on the dispute before it, the whole of the evidence, both factual and scientific, which is presented to it, the Tribunal must assess its probative value, or even its convincing index, in order to reach a conclusion ”.
Having thus justified his predominant role in the circumstances and founded the legitimacy of his decision, the judge of the Administrative Labor Court invokes the principle of precaution to impose the respiratory mask in the “hot” and “lukewarm” areas of CHSLDs.
He notes that this principle, already endorsed by the Supreme Court of Canada, is “implicitly enshrined in the introductory paragraph of article 51 of the LSST”, and that the INSPQ already says it takes it into account in its decisions. This rather vague and controversial principle allows people who invoke it to decide according to their greater or lesser sensitivity to risk. In short, Judge Bouvier’s decision reflects his own sensitivity to risk, which cannot be measured “scientifically” and in an absolutely “objective” manner and requires the exercise of an ultimately subjective judgment.
In the end, it was the judge’s point of view that prevailed, and not that of the INSPQ and its expert committees. But before wondering what the legitimacy of judgments in cases affecting society is based on, let us recall another situation where scientists found themselves at the mercy of a court.
In 2009, a high intensity 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, following a trial widely attended by the citizens of that city, six geologists and seismologists who were members of a major hazards commission were sentenced to six years in prison.
Among these were the best scientists in the country, recognized internationally. The judge reproached them for not having been careful enough in not recommending elected officials to evacuate the city. Their colleagues around the world may have explained that it is impossible to predict exactly the date and intensity of a future earthquake, nothing helped.
For the judge, the members of the commission would have provided elected officials with “inaccurate, incomplete and contradictory information” on the risks of a strong earthquake striking this region frequently affected by small earthquakes. Several had occurred in the months preceding the disaster, which could herald a strong earthquake.
The reaction of the researchers was unanimous: this incomprehensible judgment would encourage scientists to stop joining such commissions to communicate their knowledge of natural phenomena to politicians, or even to stop commenting on the press. Fortunately, that questionable decision was appealed, and two years later the six scientists were acquitted by three other judges.
Still guilty of the “precautionary principle”?
Despite this happy outcome, the judicialization of public decisions cannot exclude other harmful effects. If the Italian seismologists had applied the “precautionary principle” and asked the elected officials to evacuate the city, but the earth had remained motionless for three days, a week or a month … they might as well have been sued for causing damage to the local economy!
But back to the pandemic. In recent months, faced with the shortage of vaccines, INSPQ experts have proposed delaying the administration of the second dose. Their analysis showed that the first dose was more effective than clinical studies – performed by drug companies, let’s not forget – indicated. The efficiency is then established around 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 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. The government therefore accepted the recommendation.
If a vaccine manufacturer or other people had therefore taken legal action to force compliance with the initial vaccination protocol, a judge could also have invoked the famous precautionary principle to say that it is risky to delay the second. dose. He probably would not have wondered why the clinical trial had not planned to space the two doses for some of the guinea pigs in order to follow the effect of the first over a longer period.
Society increasingly asks judges to decide instead of elected officials on questions that are increasingly far removed from the law. However, do magistrates have more judgment than scientists in a context of uncertainty? And since all judges do not have the same sensitivity and therefore do not have the same point of view, cannot their decisions pose as many if not more problems than those of the experts, endorsed by elected officials?
Even if science cannot rule on the legitimacy of judges, it is questionable whether replacing the uncertainty of science with the judgment of a court necessarily constitutes progress.