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The Saskatchewan Court of Appeal has reserved its decision on the appeal of Michael Gordon Jackson, who was convicted of parental child abduction for taking his daughter into hiding to prevent her from getting the COVID vaccine.
A jury found Jackson guilty after a trial in 2024. His appeal argues that the trial judge erred by not allowing the jury to consider the defence of necessity. The Crown, however, argues the judge made the correct decision.
Jackson picked up his seven-year-old daughter from school on Nov. 10, 2021, for scheduled parenting time. He was supposed to return her to his ex-wife five days later, but did not. He was ultimately arrested in B.C. on Feb. 24, 2022.
He testified at trial that he believed his ex-wife — who had final decision-making authority on health matters for their daughter — was going to get their daughter vaccinated for COVID-19, but he believed the vaccine was dangerous.
At trial, he argued the jury should be able to consider the defence of necessity because he said he took his daughter “to avert an imminent harm.” The judge ruled that that argument did not have an “air of reality.”
The written filings from both Jackson and the Crown outline the three requirements for the defence of necessity to be successful.
First, there needs to be imminent harm. Jackson argued that his perception was that the harm of vaccination was imminent. The Crown argued the case was not “of sudden crisis, but of prolonged and predictable dispute.”
In addition, Jackson’s ex-wife, at the urging of police, signed an affidavit on Feb. 2, 2022, stating that she would not vaccinate their daughter, ending any claim of urgency, the Crown said. Jackson still did not return her.
Second, there must be no legal alternative. The Crown argued Jackson could have applied through family court to alter the parenting order regarding health-care decisions. Jackson said he didn’t trust the “corrupt” court system.
“To allow defence of necessity under these facts would invite anarchy into family law,” the Crown argued. “Taking matters into one’s own hands is the very thing the law is designed to prevent.”
WATCH | Regina court hears closing arguments in abduction trial:
Regina court hears closing arguments for Michael Gordon Jackson abduction trial
Michael Gordon Jackson allegedly failed to return his seven-year-old daughter to the care of her mother, who had primary custody, after a long-weekend visit in November 2021.
Third, there must be proportionality between the harm inflicted and the harm avoided. Jackson argued that the jury could “reasonably infer” the potential physical harm of vaccination was comparable to the non-physical harm of pulling the child from her home, her school, her routine and her mother.
The Crown argued the comparison is not remotely close.
“It is apples to anvils. The abduction inflicted harm that was immediate, certain and severe. The harm [Jackson] claimed to avert was the possibility of even one adverse effect from a vaccination administered in accordance with provincial medical guidance.”
Jackson argued it should have been left up to the jury to consider all of those arguments, not the judge.
In addition to appealing his conviction, Jackson is appealing his sentence.
He was sentenced to one year in jail and two years of probation. Because he had remand credit of 531 days, he did not need to serve any more time in custody after his sentencing.
Jackson argued the judge failed to consider his “pure motivations in taking his daughter” and didn’t properly account for a prior civil court conviction of contempt for defying family court orders.
The Crown argued the judge did accept Jackson’s “principal aim was to protect” his daughter, but that ultimately, “there is no virtue in how one chooses to harm others.”
The Crown also pointed out the prior contempt penalty addressed breaches of two family court orders, while the criminal offence addressed a contravention of a separate order.
The appeal court heard oral arguments on the case on Monday, and will deliver its decision at a future date.