Paragons of Ethical Medicine Attacked by the College of Physicians and Surgeons of BC

Paragons of Ethical Medicine Attacked by the College of Physicians and Surgeons of BC


By
Dr. Matthew Evans-Cockle

Left unchecked, the arbitrary power of the College of Physicians and Surgeons of BC threatens the health and well-being of all British Columbians as well as the core values of Canadian democracy.

A handful of headstrong, and ethically courageous, British Columbian doctors have stood up and voiced their concerns about the potential harms associated with our provincial COVID-19 policies. Doctors Hoffe, Malthouse, Nagase, and Sclater have all run afoul of the College of Physicians and Surgeons of BC. In the interest of brevity and clarity, the reflections that follow will be confined to a single case—that of Dr. Charles Hoffe, who was one of the first, if not the first, BC physician to be censured by the College.

According to the Vancouver Sun, the College of Physicians and Surgeons of BC has issued a citation for Dr. Charles Douglas Hoffe, alleging that his “online comments contravened the standards of the Health Professions Act including the Canadian Medical Association’s code of ethics and professionalism.” The Vancouver Sun article further relates that Doctor Hoffe is accused of uttering a number of public health heresies.

The heresies of Doctor Charles Hoffe, we are told, are many and grievous. First, he has suggested that the mRNA COVID-19 genetic vaccines may cause “microscopic blood clots.” Such microscopic blood clots, he has allegedly stated, might contribute to severe neurological issues as well as a wide range of other serious harms. On this matter, the College is unfazed by the unprecedented numbers and varieties of harms reported in the world’s most prominent and widely recognized reporting systems, such as the American VAERS, UK’s Yellow Card, European Medicines Agency’s EudraVigilance, and the World Health Organization’s VigiSafe systems. A second heresy for which Dr. Hoffe is reproached, is his suggestion that “vaccinated persons can cause harm to unvaccinated persons.” The College appears steady in their resolve to censure Hoffe on this matter, unshaken by the growing body of evidence that mRNA COVID-19 genetic vaccines do not prevent infection or transmission of COVID-19 or its variants, or apparently reduce the occurrence of severe COVID-19. But the third, and perhaps greatest of Dr. Hoffe’s heresies is his suggestion that “ivermectin is an advisable treatment for COVID-19!”(1)

Health Canada historically and presently supports the use of approved medicines such as ivermectin for off-label indications at the discretion of prescribing physicians if there are compelling reasons why the doctors believe they may be helpful to their patients. The College’s attack on this statement is particularly ludicrous given its confirmation by no less an authority than Dr. Tess Lawrie, the director of Evidence-based Medicine Consultancy in Bath, UK. With respect to the advisability of ivermectin in treating COVID-19, Dr. Lawrie has conducted a meta-analysis of 15 trials, following the gold-standard Cochrane protocol. While citing both the well-known safety profile and very low cost of ivermectin, Dr. Lawrie’s meta-analysis concludes that with the aid of this essential medicine “large reductions in COVID-19 deaths are possible” and, that “[u]sing ivermectin early in the clinical course may reduce numbers progressing to severe disease.”(2)

As though Hoffe’s fantastically reckless claim that “ivermectin is an advisable treatment for COVID-19”, were not offensive enough… As though it were not absolutely intolerable that Dr. Hoffe’s assertion is now supported by not just one, but multiple meta-analyses(3)… As if this weren’t already dreadful enough, the allegedly off-his-rocker doctor stands accused of suggesting that people wishing to make use of this treatment disregard its prohibition by Public Health! If Public Health refuses to make this potentially life-saving and inexpensive treatment available—a treatment with an unparalleled safety profile, a treatment already administered billions of times all around the world, a treatment with incredibly few adverse events recorded after over 40 years of use—Dr. Hoffe, I say—echoing the righteous, thundering indignation of the College of Physicians and Surgeons of BC—has had the unmitigated gall to suggest that the public might be justified in obtaining it “from animal feed stores” where it is also available.

But all kidding aside, to an increasing number of gravely concerned British Columbians, the disciplinary actions undertaken by The College of Physicians and Surgeons of BC against Dr. Hoffe and his fellow physicians for identifying issues of concern regarding the COVID mandates and recommendations pronounced by Public Health authorities, appear arbitrary, vindictive, and against the public interest. To these citizens, the College appears to be aggressively persecuting highly qualified and conscientious medical professionals for acting according to the dictates of their conscience, knowledge, and sworn oath to do no harm. These doctors have felt compelled to comply with their duties to patients and the community by voicing science-based concerns about potential harms associated with the mRNA COVID-19 genetic vaccine, and by drawing attention to the benefits of early treatment. For casting doubt upon the reliability of the Public Health authority’s COVID-19 policies, they have drawn the ire of the BC College, yet for many British Columbians, these courageous physicians embody the spirit of both ethical medicine and social responsibility.

If the actions taken against these doctors by the College of Physicians and Surgeons of BC are contrary to the spirit of ethical medicine and the dictates of a socially responsible conscience, they are also contrary to the spirit of the law in Canada. According to the Canadian concept of law, a citizen cannot be both accused of a crime and also stripped of the ability to answer the accusation. When the College suspends a doctor’s license it thereby prevents that doctor from earning income. Without income, such doctors will be unable to effectively pay the legal fees required to mount an adequate defense in answering the accusations made against them.

The punitive actions undertaken by the College of Physicians and Surgeons of BC are made even more outrageous by their complete lack of reasonable grounds. Again and again, the people of BC have heard from Interior Health, Public Health, and the Minister of Health, that their shared goal is to ensure the safety of British Columbians. To this end, they have prohibited physicians and other healthcare providers from publicly expressing opinions that contradict official Public Health recommendations and orders. To contradict these recommendations, they say, is to put people’s lives at risk by encouraging vaccine hesitancy. And yet, time and again, to compel uninformed or poorly informed compliance, our public health authorities have provided misleading, erroneous, or inadequate information to justify orders and recommendations. Assertions concerning the safety and efficacy of mRNA COVID-19 genetic vaccines have been disproven. Assertions concerning the safety and efficacy of mask wearing and social distancing have been disproven. Similarly, assertions by Public Health authorities concerning the safety and efficacy of lockdown measures have been disproven. While falsely touting the benefits of these mandates, Public Health authorities have been silent or misleading about the risks. The College of Physicians and Surgeons of BC has censured doctors for attempting to prevent harm by providing patients and others with some of the information needed to make informed decisions about COVID-19 treatment.

At this stage, we should all know that the mRNA COVID-19 genetic vaccines do not prevent infection or transmission. Indeed, Pfizer executive Janine Small has admitted, before a European Union parliamentary hearing, that Pfizer did not test the vaccine for preventing transmission of COVID-19 prior to it being made available to the public. U.S. CDC director Rochelle Walensky has publicly admitted the vaccines can’t prevent transmission.(4)

And viral immunologist Dr. Byram Bridle has written, “the current COVID-19 vaccines fail to induce what we call ‘sterilizing immunity’. This means that vaccinated individuals can still get infected with SARS-CoV-2, potentially become ill, and potentially transmit the virus to others.”(5)

At this stage, we should all know that not only do the mRNA COVID-19 genetic vaccines not prevent hospitalization or death but that vaccine adverse event reporting systems around the world are showing higher rates of mortality for these mRNA COVID-19 genetic vaccines than for any other vaccines in history. Looking at the US VAERS, the UK Yellow Card, and the World Health Organization VigiAccess systems, in less than three years more vaccine injuries have been reported in connection with the COVID-19 vaccines than from the combined sum of all other vaccines administered over the past three decades.

Once upon a time, members of the College of Physicians and Surgeons of BC might have believed there were adequate scientific grounds for promoting the mRNA COVID-19 genetic vaccines as safe and effective. Now, however, it has been made abundantly clear, and that for a good long time already, that no such grounds exist. With over 35,000 COVID-19 vaccine deaths and over 2,400,000 adverse events reported in the US VAERS alone, the College of Physicians and Surgeons of BC should be pulling out their bullhorns and shouting from the rooftops: “these genetic vaccines are NOT safe, and they are NOT effective!” Instead, the College has prohibited physicians from expressing concerns about the safety and efficacy of these genetic vaccines on the grounds that to express such concerns puts people at risk by encouraging vaccine hesitancy. It appears patently obvious, however, that when we set about administering any new treatment, it is precisely by prohibiting physicians from sharing their opinions—as qualified, experienced, and ethically conscientious medical professionals—that we put people at risk.

The College’s disciplinary actions clearly prohibit or impair not just those targeted, but all physicians from carrying out their professional and ethical duties to ensure provision of individualized health care which includes providing information, specialized knowledge and careful advice about the risks and benefits of recommended medical products and about alternative treatments. The disciplinary actions by the College of Physicians and Surgeons of BC also violate our physicians’ protected rights including rights to: work and earn income as physicians; due process; remedies for rights violations; freedom of expression; and their right to participate in governance and decision making.

All of these rights, which the BC College is violating through their autocratic disciplinary actions, are protected by the Charter of Rights and Freedoms. Now, discussions of Charter rights and freedoms tend to be inconclusive, because it is difficult, on the basis of the Charter alone, to reach a useful end or stable determination. There is a simple reason for this. From a legal perspective, the Canadian Charter is a weak constitutional document. It is weak in the sense that it does not, on its own, provide clear and definitive guidance on the general matters with which it is concerned. This does not mean, however, that no such guidance is possible. On the contrary, the relatively weak guidance provided by the Charter can be reinforced through reference to another body of law.

It is important, and also very helpful, to recognize that the Canadian Charter can and should be interpreted in accordance with the many international human rights treaties signed by Canada. When it comes to compliance with treaty obligations, one might say the entire world is watching; or to quote from section 8 of the Canadian “Policy on Tabling of Treaties in Parliament”, “Under international law, a treaty creates international legal obligations for Canada.”

By referring to international human rights treaty law it is possible to throw much needed light on some of the more obscure, ambivalent, and vague sections of the Charter. Our physicians’ rights—the rights which are being violated by the College of Physicians and Surgeons of BC—are protected under the Charter and they are further protected under international human rights law treaties to which Canada is a party. The guidance these treaties provide is definitive and clear and the protection they provide is unquestionable—for these treaties are binding upon Canada. These include, but are not limited to, the International Covenant on Civil and Political Rights and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.

In addition to stripping physicians of Charter rights and freedoms, the College of Physicians and Surgeons of BC’s disciplinary proceedings also deprive patients of their essential rights to informed consent to medical treatment, freedom from coercion or force to accept a medical treatment not voluntarily chosen, and freedom from non-consensual medical or scientific experimentation. As ought to be widely known, these last two rights are absolute. They cannot be restricted under any circumstances, including those pertaining to public health emergencies. These laws are, in fact, part of the peremptory right to freedom from torture and other cruel, inhuman or degrading treatment or punishment. In addition, the illegitimate disciplinary actions undertaken by the College of Physicians and Surgeons of BC have had a chilling effect on non-targeted BC physicians whose silent acquiescence to harmful covid mandates has likely harmed hundreds of thousands of patients in this province alone. This is not an abstract issue that only concerns lawmakers and stuffy bureaucrats; it is a deeply personal crisis that affects Canadians living in major metropolitan centres across the country as surely as it reaches into the heart of rural townships throughout the Southern, Interior and Northern reaches of B.C.

“It is no great stretch to imagine that many of those who have lost loved ones subsequent to vaccination, and a great many more who have been injured, are now calling out for justice. Far from wishing to see BC doctors punished for speaking out, a great many of these might wish to see the Colleges rebuked and disciplined—if not dismantled—for prohibiting their doctors from providing them with the responsible medical counsel required to make properly informed risk benefit analyses. By effectively muzzling BC physicians, the College of Physicians and Surgeons of BC has deprived British Columbians of their legal right to informed consent. This, in turn, has led to an inevitable desire for justice among the vaccine injured and bereaved.”

It is no great stretch to imagine that many of those who have lost loved ones subsequent to vaccination, and a great many more who have been injured, are now calling out for justice. Far from wishing to see BC doctors punished for speaking out, a great many of these might wish to see the Colleges rebuked and disciplined—if not dismantled—for prohibiting their doctors from providing them with the responsible medical counsel required to make properly informed risk benefit analyses. By effectively muzzling BC physicians, the College of Physicians and Surgeons of BC has deprived British Columbians of their legal right to informed consent. This, in turn, has led to an inevitable desire for justice among the vaccine injured and bereaved.

The broader legal context and consequences of the BC College’s autocratic policies and punitive actions against Doctors Hoffe, Malthouse, Nagase, and Sclater are of enormous importance. With the College’s persecutory proceedings against these physicians, we are witness to non-consensual and arbitrary imposition of orders, arbitrary punishment, and arbitrary withdrawal of privileges. This is not only contrary to the Spirit of the law in Canada—it is an outright attack on Canadians’ most fundamental participatory and democratic societal values. The College of Physicians and Surgeons of BC has dealt a terrible blow to doctors’ freedom to practice ethical medicine in the province of British Columbia. If the College’s arbitrary punishment of Doctors Hoffe, Malthouse, Nagase, and Sclater is allowed to stand, it will set a precedent that threatens the constitutionally protected societal values of all Canadians, while destroying the right to provide and receive personalized healthcare in BC. If these doctors’ ethical actions on behalf of their patients are not vindicated, it will hamper the ability of all BC doctors to provide honest and informed consultations that are in the best interests of their patients, because these doctors, in turn, will fear that their own ability to practice medicine may be threatened if they do so.

In closing this discussion of ethical medicine and the ill-advisement of autocratic authority in matters of public safety, it may be helpful to remind ourselves of a fundamental principle of human rights recognized the world over: health professionals are under a legal obligation “to document and report torture and ill-treatment in all contexts(6).”

Declaring a pandemic does not mean that authorities and health professionals no longer need to respect the rule of law and the rights and freedoms of individuals. On the contrary, even if a domestic law were to be changed, it cannot be used as an excuse to suspend rights guaranteed under treaties signed by Canada.

Highly qualified and ethically conscientious medical practitioners, doctors willing to risk their own livelihoods in order to advocate for the well-being of their patients, are a precious commodity. When doctors have science-based concerns about potential harms to their patients, they must be not only allowed, but encouraged to speak out. To punitively restrict and silence doctors, to prevent them from acting according to their conscience, to prevent them from fulfilling their fiduciary duty towards their patients is recklessly poor policy. In light of the above, and in compliance with its statutory and ethical duty to the people of this province, I urge the College of Physicians and Surgeons of BC to immediately withdraw all proceedings against Doctors Hoffe, Malthouse, Nagase, and Sclater. I further urge the College to take whatever measures are necessary to enable these doctors’ return to practicing medicine. The value of these doctors’ principled stand against the College of Physicians and Surgeons of BC’s autocratic imposition of ill-advised public-health policy cannot be overstated. Exemplary embodiments of the spirit of ethical medicine and social responsibility, these physicians are to be applauded for the tremendous efforts they have made on behalf of all British Columbians.


~Ω~

Contact: Dr. Cockle dr.evans.cockle@gmail.com


Footnotes:

1 An overview of the current state of research on ivermectin use in the treatment of COVID-19: https://www.canadiancovidcarealliance.org/wp-content/uploads/2021/08/Oldfield-Ivermectin-Treatment-of-COVID-19.pdf

2 Bryant, Andrew MSc1,*; Lawrie, Theresa A. MBBCh, PhD2; Dowswell, Therese PhD2; Fordham, Edmund J. PhD2; Mitchell, Scott MBChB, MRCS3; Hill, Sarah R. PhD1; Tham, Tony C. MD, FRCP4. Ivermectin for Prevention and Treatment of COVID-19 Infection: A Systematic Review, Meta-analysis, and Trial Sequential Analysis to Inform Clinical Guidelines. American Journal of Therapeutics 28(4):p e434-e460, July/August 2021. | DOI: 10.1097/MJT.0000000000001402

3 Kory, P., Meduri, G.U., Iglesias, J., Varon, J., Berkowitz, K., Kornfeld, H., . . . Marik, P.E. (2021). Review of the emerging evidence demonstrating the efficacy of ivermectin in the prophylaxis and treatment of COVID-19. Am J Therapeutic. 28, 299-318. Retrieved from https://journals.lww.com/americantherapeutics/Fulltext/2021/06000/Review_of_the_Emerg ing_Evidence_Demonstrating_the.4.aspx?WT.mc_id=HPxADx20100319xMP

4 https://www.audacy.com/kmox/news/national/cdc-director-says-vaccines-are-not-preventing-transmission

5 https://www.canadiancovidcarealliance.org/wp-content/uploads/2021/06/2021-06-15-Children-and-COVID-19-Vaccines-full-guide_-FINAL.pdf (page 29).

6 …based on the obligation of States under international law, as well as the ethical obligations of health professionals.” (see the Istanbul Protocol – Manual on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, June 2022 Edition at para. 603)

Hearing of BC Doctor Who Spoke Out Against COVID Protocols Postponed by Regulatory College

A sign for a COVID-19 vaccination clinic run by Vancouver Coastal Health in Richmond, B.C., on April 10, 2021. (The Canadian Press/Jonathan Hayward)
By Jeff Sandes
February 12, 2023Updated: February 12, 2023

[Editor’s Note: It’s with great relief that news of Dr. Hoffe’s hearing before the College of Physicians and Surgeons of BC has been postponed and I want to thank all the good folks across the nation who were so conscientiously quick in firing off letters of support for Charles Hoffe to the College of Physicians and Surgeons of BC. BIG THANKS also to Jeff Sandes and the Epoch Times for running his story.

Please note that the images in the body of the article and any urls attached to them are mine and not those of Epoch Times.]

Hearing of BC Doctor Who Spoke Out Against
COVID Protocols Postponed by Regulatory College

By Jeff Sandes

The first doctor in British Columbia to face a disciplinary hearing in front of the province’s College of Physicians and Surgeons related to COVID-19 protocol has had his review postponed.

Lytton, B.C. before the fire

Dr. Charles Hoffe from Lytton, B.C., was scheduled to begin his 10-day hearing before a college discipline committee panel on Feb. 13, but his lawyer, who spent several weeks in hospital recently, had applied multiple times to postpone the hearing so he could prepare. After a case conference on Feb. 7 and 8, the panel notified Hoffe and his lawyer of the adjournment on Feb. 9. A new date for his hearing has not yet been publicly announced.

Hoffe says he’s relieved.

“We initially asked for this adjournment seven and a half weeks ago, but the college was so reluctant to give it that they’ve literally approved it four days before the trial starts,” he told The Epoch Times.

“Clearly, they have done this with great reluctance. But you know, time and truth go hand in hand, and with every passing week, more and more scientific evidence validates everything they have accused me of, showing they are wrong. So they clearly need to drop all of these absurd charges against me and all of the other doctors, and they need to go back to [being] the guardians of medical ethics, which is what they’re supposed to be.”

The citation listed three examples, with more left unnamed. Hoffe is accused of recommending ivermectin as a treatment for COVID and where to get it without a prescription; saying COVID vaccines can cause harm including neurological injuries, female infertility, and even death not recognized by public health; and expressing that vaccinated people can cause harm to those who remain vaccine free.

Support

Many of Hoffe’s supporters wrote to the college in recent weeks to show their opposition to any disciplinary action against Hoffe.

In a citation issued to Hoffe in February 2022, the college alleged he “contravened standards imposed under the Health Professions Act, including but not limited to the Canadian Medical Association’s Code of Ethics and Professionalism by publishing statements on social media and other digital platforms that were misleading, incorrect or inflammatory about vaccinations, treatments, and public measure relating to COVID-19.”

Former police officer Ivan DeSilva used to work with the college when he was a detective with the Vancouver Police Department’s Sex Crimes and Child Abuse units, handling many of their investigations.

DeSilva now hosts his “A Biblical Frame” podcast. He has interviewed Hoffe on his podcast, having previously met him, and as a supporter he wrote a letter to the college speaking to Hoffe’s professionalism and integrity.

See article HERE

He says the college now operates with a different mandate than when he was with the Vancouver Police Department.

“When I wrote this letter, I basically said there was a time when I worked with the college and their investigative body and saw how they did their investigations,” DeSilva said in an interview. “I developed respect for them, and it is out of that sense of high regard for them that I’m surprised that they’re taking this approach with Dr. Hoffe because it doesn’t seem to gel with the college I knew.”

Now he says he wonders whether the college has “become another political tool of the government.”

DeSilva says the recent passing of Bill 36, the Health Professions and Occupations Act, suggests to him the B.C. government is looking to replace medical professionals in the province’s colleges with government bureaucrats, which could compromise their integrity.

The Epoch Times reached out to the College of Physicians and Surgeons of British Columbia but did not receive a reply.

Controversy

Hoffe created controversy in April 2021 when he wrote an open letter to B.C. Provincial Health Officer Bonnie Henry describing the severe adverse events some of his patients were experiencing after receiving the COVID vaccines, and asking whether the province should reconsider the rollout.

See Cariboosentinel article HERE

“In our small community of Lytton, BC, we have one person dead, and three people who look as though they will be permanently disabled, following their first dose of the Moderna vaccine. The age of those affected ranges from 38 to 82 years of age,” he wrote.

Before writing the letter, Hoffe had been censored from communicating with other doctors about side effects and the person he was told to direct all of his questions to at Interior Health ignored his repeated requests to address his concerns, he says. He was banned from working in provincial hospitals and all of his submissions of vaccine adverse events were overturned and deemed to be coincidence.

See Cariboosentinel article HERE

Former Newfoundland and Labrador premier Brian Peckford also wrote to the college in support of Hoffe and highlighted its lack of adherence to the Charter of Rights and Freedoms, a document he helped create.

“I urge you to abandon your present course and permit Dr. Hoffe to continue his excellent medical practice providing care in freedom, valuing the right of the person and in practicing the principle of doing no harm,” Peckford wrote.

“May I remind you of the Charter provision of ‘life, liberty and security of the person.’ This is in Canada’s most important document, our Constitution.”

The Epoch Times contacted the B.C. Ministry of Health asking about oversight of the college and whether provisions in Bill 36 were designed to provide additional protections to the college or its members, but did not receive a response by press time.

~Ω~

Technocracy Triumphant — Manitoba Court Cancels The Charter Rights You Thought You Had

THRONE, ALTAR, LIBERTY

THE CANADIAN RED ENSIGN

Technocracy Triumphant — Manitoba Court Cancels The Charter Rights You Thought You Had

By

Gerry T. Neal

October 29, 2021

Taking the attitude “who am I to judge” is, under many circumstances, appropriate and admirable.   There is one circumstance, however, when it is extremely inappropriate and reprehensible.   That is when you are a justice of Her Majesty’s bench before whom one person or group has brought another person or group, complaining that the latter has injured them in violation of the law and asking you for redress of their wrongs.   If you happen to be in that situation then your job – your only job – is to hear the case, weight the evidence, and issue a ruling, in short – to judge.   To plead humility as an excuse for not doing so is to abandon your duty. 

Earlier this year, in the late spring, Chief Justice Glenn Joyal of the Court of Queen’s Bench of Manitoba heard evidence that lawyers representing the Justice Centre for Constitutional Freedoms presented on behalf of the Gateway Bible Baptist Church in Thompson, along with six other congregations, two ministers and one other individual in two related but distinct constitutional challenges to the provincial bat flu public health orders. (1)   One of these challenged the sweeping powers with insufficient accountability that had been given to the Chief Public Health Officer.   The other challenged portions of the public health orders themselves on the grounds that they violated the fundamental freedoms named in the Charter of Rights and Freedoms in such a way as could not be justified by the “reasonable limitations” clause of the Charter’s Section 1.    The evidence in these challenges was heard in May.   After taking the summer to deliberate or take a vacation or go for the world’s record in thumb twiddling or whatever, last week on the twenty-first of October Chief Justice Joyal finally ruled in these cases.   For the purposes of distinction the ruling with regards to the constitutionality of the powers of the Chief Public Health Officer, will be called “the first ruling” and the ruling, with regards to the constitutionality of portions of the orders will be called “the second ruling”. 

The Chief Justice ruled against the applicants in both cases.    In one sense, however, the second ruling could be called a non-ruling. In paragraph 292 we find the following: 

I say that while recognizing and underscoring that fundamental freedoms do not and ought not to be seen to suddenly disappear in a pandemic and that courts have a specific responsibility to affirm that most obvious of propositions. 

This is very good and right.   The problem is that the next sentence begins with a “but.” Apart from the bad grammar involved – Chief Justice Joyal is old enough to have still had the rule never to begin a sentence with a conjunction like “but” drilled into him in grade school – buts have this nasty habit of leading into material that completely negates everything that precedes the “but”.   Here is what followed:  

But just as I recognize that special responsibility of the courts, given the evidence adduced by Manitoba (which I accept as credible and sound), so too must I recognize that the factual underpinnings for managing a pandemic are rooted in mostly scientific and medical matters. Those are matters that fall outside the expertise of courts. Although courts are frequently asked to adjudicate disputes involving aspects of medicine and science, humility and the reliance on credible experts are in such cases, usually required. In other words, where a sufficient evidentiary foundation has been provided in a case like the present, the determination of whether any limits on rights are constitutionally defensible is a determination that should be guided not only by the rigours of the existing legal tests, but as well, by a requisite judicial humility that comes from acknowledging that courts do not have the specialized expertise to casually second guess the decisions of public health officials, which decisions are otherwise supported in the evidence. 

This constitutes an abdication of the very responsibility he had just acknowledged. If fundamental freedoms still exist in a pandemic, and it is the court’s special responsibility to affirm this, this means that the court cannot defer to the public health authorities, the medical experts, on the question of whether their own measures are reasonable and justified.   If civil authority A is accused of trampling on the public’s fundamental freedoms, and the court defers to the expertise of civil authority A on the question of whether the latter’s actions are reasonable and justified, this translates into “civil authority A can do whatever he sees fit, there are no limits on his powers to which the court will hold him accountable”.    Indeed, saying that courts should be guided not just by the “rigours of the existing legal tests” but a “humility” that forbids them to “casually second guess” the decisions of public health officials is tantamount to saying that medical science is a higher authority than the law.  (2) 

In the sections of the ruling that immediately follow the paragraph from which we have quoted, we see what this “judicial humility” looks like in practice.   In these pages Chief Justice Joyal considers the question of whether the public health orders meet the standards of the Oakes test.    The Oakes test was established by the Supreme Court of Canada in 1986 to determine whether legislation or other government action that infringes upon Charter rights and freedoms is nevertheless permitted under the “reasonable limitations” clause.     To pass, the infringement must first be shown to serve a “pressing and substantial objective”.   Second, the infringement must be show to be proportional, which means that it must a) be shown to be rationally connected to the objective, b) be shown to only minimally impair the right(s) and/or freedom(s) in question and c) be shown to provide a benefit to the public that is greater than the harm done by impairing the right(s) and/or freedom(s). (3)  For each of the stages of this test, the Chief Justice essentially takes the position that because Brent Roussin decided, after weighing all the information available to him, that each public health order he issued was what was necessary at the time, therefore the orders meet the standards of the test.    Such a ruling in effect declares that Brent Roussin, as Chief Public Health Officer, is above the law insofar as he is acting in the capacity of his office.  If the court defers to him as to whether his actions in the capacity of his office meet the standards of constitutionality set in the Oakes test or not, then he is above the Oakes test and the Charter and cannot be held accountable to either. 

The ramifications of this extend far beyond the issues pertaining to the public health orders and the pandemic. What it means is that while we remain in form the country that we were, governed by a parliament under the reign of a constitutional monarch, in which Common Law and Charter nominally protect our rights and freedoms, in actual practice we have become a medical technocracy. 

Anyone inclined to think that this is a good thing, or even a tolerable thing, is invited to consider the words of C. S. Lewis: 

Of all tyrannies, a tyranny sincerely exercised for the good of its victims may be the most oppressive. It would be better to live under robber barons than under omnipotent moral busybodies. The robber baron’s cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end for they do so with the approval of their own conscience. They may be more likely to go to Heaven yet at the same time likelier to make a Hell of earth. This very kindness stings with intolerable insult. To be “cured” against one’s will and cured of states which we may not regard as disease is to be put on a level of those who have not yet reached the age of reason or those who never will; to be classed with infants, imbeciles, and domestic animals.  (God in the Dock, 1948) 

This description fits the rule of medical technocrats to a tee.   

That a de facto medical technocracy is inimical to the freedom that permeates our parliamentary form of government, our constitutional monarchy, and the Common Law is the real issue at the heart of the other challenge.   This was the challenge to the constitutionality of the provincial legislature’s having named Brent Roussin dictator, with Jazz Atwal as his Master of Horse, for the duration of the pandemic, which had to be framed, of course, as a challenge to the sections of the Manitoba Public Health Act (2009) which provided for this situation.   These are sections 13 and 67.   Section 67 empowers the Chief Public Health Officer to take special measures if he “reasonably believes” that “a serious and immediate threat to public health exists because of an epidemic or threatened epidemic of a communicable disease” which “cannot be prevented, reduced or eliminated” without the special measures.   Section 13 allows him to delegate his own power under the Act to a deputy.   

Chief Justice Joyal ruled that this two-fold delegation of power, first from the legislature to the Chief Public Health Officer, second from the latter to his deputy was constitutional.   In the course of explaining his decision he made a number of statements that suggest a troubling sympathy with the technocratic impulse of the age.   He gave his approval to the province’s claim that with the “emergence of new threats such as SARS, West Nile, monkey pox and the avian flu” it was important that the government focus on the “modernization of the PHA”.   The modernization of the Public Health Act, that is to say, bringing it in line with contemporary trends around the world, means making it more technocratic.   In this context the Chief Justice asserted with regards to the centralization of the public health system in the person of the Chief Public Health Officer that: 

the act sets out the powers afforded to public health officials to address communicable diseases and importantly, it also constrains those powers so as to ensure an appropriate balance between individual rights and the protection of public health  (first ruling, 12). 

Does it ensure such an appropriate balance?   As this is the quod erat demonstrandum, this forthright assertion of it would seem to be a classic example of petitio principia, especially when we consider the weakness of everything that was then put forward in support of the assertion. After providing quotations from speeches in the legislative assembly at the time the new Public Health Act was being debated that show that the legislators acknowledged the need for such a balance, the Chief Justice finally specified the constraints this Act supposedly places on the powers it gives to the Chief Public Health Officer (first ruling, 17).   Not a single one of these is a real check that prevents the office of the Chief Public Health Officer from being corrupted into a medical technocratic tyranny by the excessive emergency power vested in it. 

The first of these is that the official must believe there is a public health emergency that requires special measures to be taken. The third is that the orders require the prior approval of the Minister of Health. The fourth is the stipulation in section 3 of the Public Health Act that the restrictions on rights and freedoms of the special measures be as few as possible, the equivalent to the “minimal impairment” requirement of the Oakes test. In practice, the attitude of deferral to the specialized medical expertise of the Chief Public Health Officer on the part of the Minister of Health ensures that none of these constitutes a real constraint.   The sixth, which is that the Chief Public Health Officer must be a physician, is a limit on who the Minister of Health can appoint to the office not a limit on use of the powers of that office by the officeholder.   The seventh and final “constraint” pertains only to the secondary matter of the sub delegation of the Chief Public Health Officer’s powers to his deputy. This leaves the second and fifth, both of which warrant special comment and so have been reserved for last.

The second “constraint” is that under subsection 2 of section 67 “the types of orders that can be made are clearly delineated”.   This is true, but the types so delineated are so extensive that this is not much of a limitation even without taking into consideration how much further deferral to the expertise of the Chief Public Health Officer would stretch them.

The fifth is the stipulation in subsection 4 of section 67 that “an order requiring a person to be immunized cannot be enforced if the person objects.”    Although this looks like a real constraint on the Chief Public Health Officer’s powers, for several months now he has gotten away with making a total mockery of this stipulation by doing everything short of strapping objectors down and forcing the needle into them to compel them to be “immunized”. 

Therefore, quite to the contrary of what Chief Justice Joyal claims (first ruling, 18) these constraints provide no real protection against the danger of the powers the Public Health Act confers upon the Chief Public Health Officer in a public health emergency being used to run roughshod over our rights and freedoms. Whatever the intention of the legislators in 2009, the Public Health Act fails to provide an appropriate balance between individual rights and the protection of public health.   Instead, it places all the weight on the side of the latter. 

It needs to be stated here that the need for an appropriate balance between individual rights and freedoms on the one hand and the public good on the other is a truism.   The art of statecraft – politics in the best sense of the word – could be said to reduce to finding just this balance.   The problem, at least in Canada, is that for decades now we have only ever seemed to have heard this truism trotted out whenever someone is insisting that individual rights and freedoms need to make cessions to the public good.   Balance requires that there also be cessions from the public good to individual rights and freedoms.   Indeed, since the vast majority of decisions that need to be made in any complex society have to do with the good of individuals and small groups, rather than the good of the society as a whole, and it is individual rights and freedoms that ensure that those making such decisions are the ones most competent to do so, which with only rare exceptions means the individuals and small groups directly concerned, balance arguably requires far more cessions to individual rights and freedoms from the public good, than the other way around. 

The basic assumption of technocracy is contrary to all of this. This is the assumption that technical knowledge – the kind of specialized knowledge in any field that qualifies one as an expert – renders one competent to make decisions for other people if the expert’s field at all touches upon those decisions.   This assumption is laughably false – technical expertise in one field does not translate into technical expertise in another field, much less all fields, and it is rare that a decision requires information from only one field.   The most technical knowledge ought to qualify an expert for is to advise people in the making of their own decisions, not to make those decisions for them. Indeed, were we to assume that the greater an individual’s expertise is in one specialized field, the greater his ignorance will be in all others, and the more utterly incompetent he will be at making decisions for himself, let alone other people, our assumption would be wrong, but a lot less wrong than the assumption inherent in technocracy.

Technocracy is odious enough when it takes the form of the army of civil servants, passing the endless regulations that boss people around and tell them what to do in their own homes and how to run their own businesses, by which Liberal Prime Ministers have so effectively circumvented the constraints of our Crown-in-Parliament constitution in order to impose their will upon Canadians.   A medical technocracy enacted in a public health emergency is far worse.   Throughout history, mankind has been much more often plagued by tyranny than by insufficient government power, by too many rules than by too few, and the exploitation of emergencies, real or manufactured, and the fear they engender in the public, is the normal means whereby a tyrant seizes unconstitutional power.   For this reason it is imperative than  in any emergency, those empowered to deal with the emergency be subjected to even greater scrutiny and held to even stricter accountability, than in ordinary circumstances.   This is the opposite of the attitude of deference that Chief Justice Joyal contended for in 281-283 of the second ruling, and which he reiterated in the first sentence of 292, “In the context of this deadly and unprecedented pandemic, I have determined that this is most certainly a case where a margin of appreciation can be afforded to those making decisions quickly and in real time for the benefit of the public good and safety.” (4) 

This deference is fatal to the court’s role as the guardian of fundamental freedoms.    Chief Justice Joyal acknowledged (284), as, in fact, did the province, that these freedoms were violated, and that therefore the onus is upon the government to justify the violation. (5) When the court gives this “margin of appreciation” to “those making decisions quickly and in real time”, however, is it possible for the province to fail to meet this onus in the court’s eyes? 

Consider the arguments that the province made that it met the “minimal impairment” requirement of the Oakes test.   Chief Justice Joyal reproduced (303) the reasons the province offered in support of this contention from paragraph 52 of their April 12, 2021 brief. Reason c) begins with “Unlike some other jurisdictions, there was no curfew imposed or a ‘shelter in place’ order that would prevent people from leaving their home other than for limited reasons”.  That you cannot validly justify your own actions by pointing to the worse actions of someone else is something that anyone with even the most basic of training in logical reasoning should immediately recognize.   The same reason includes the sentences “It was still possible to gather with family and friends at indoor and outdoor public places, up to the gathering limit of 5 people” and “An exception was also made for people who live on their own to allow one person to visit.”   Offering these as “reasons” why the public health order forbidding people to meet with anyone other than members of their own household in their own homes for over three months only “minimally impaired” our freedoms of association and assembly is adding insult to injury. That is called throwing people crumbs, not keeping your infringement on their freedoms to a minimum.   “Minimally impair” is not supposed to mean to impair the freedom to the point that it is minimal. 

Reason e) which pertains to freedom of religion is no better.   The province declared that there was an “attempt to accommodate religious services”.   The first example of this that they gave is that “Religious services could still be delivered remotely indoors, or outdoors in vehicles”.   It seems rather rich of the province to offer the latter up as proof that they tried to only minimally impair freedom of religion when, in fact, the churches that offered such services had to fight to obtain that concession. 

Had Brent Roussin forgotten that he had initially banned drive-in services when he ordered churches to close in the so-called “circuit break” last fall?   

Or rather had he remembered that it was Chief Justice Joyal who on the fifth of December last year had ruled that drive-in services were in violation of the public health orders before he, that is Roussin, amended the orders to allow for these services?   

Either way it is rather disingenuous of him to make this allusion in this context.   

The next sentence is even worse. “As well, individual prayer and reflection was permitted.”  So, because he didn’t ban people from praying by themselves in the privacy of their own homes, which even officially Communist countries never attempted, he is to be credited for only “minimally impairing” our freedom of religion by forbidding us to obey God’s commandment to forsake not the assembly of ourselves, forbidding us to sing God’s praises as a community of faith, and forbidding us from partaking of the Holy Sacrament? Indeed, what this sentence tells us is that the person who wrote it thinks a) that individuals need the permission of government to pray and reflect in private, b) that it is within the powers of government to withhold such permission and forbid private prayer and reflection, and c) government’s not having done so means that their violations of our freedom of religion and worship have been minimal and reasonable.   

Any sort of cognitive filter that allows a Chief Justice to look at this sort of nonsense and conclude from it that the province has met its onus of justifying its impairment of our fundamental freedoms as the minimum necessary under the circumstances is clearly a dysfunctional filter that ought to be immediately discarded. 

Indeed, the province’s arguments illustrate the point made above about technocracy being inimical to freedom, constitutional government, and the balance between individual right and public good.   Technical knowledge or specialized knowledge in a field of expertise, as stated above, does not translate into expertise in another field, much less expertise in all fields. Indeed, it tends towards a certain kind of deficiency in general reasoning that could be regarded as a sort of tunnel vision.   It is called déformation professionelle in French and is similar to what is called the Law of the Instrument, illustrated in A.M’s [censored. A.T.] proverb about how if all you have is a hammer, everything looks like a nail.   A physician’s technical expertise is in the field of medicine – treating sickness and injury and promoting health.   He will therefore be inclined to subordinate everything else to the goals of his profession.   In an epidemic or pandemic, this inclination will be all the more exaggerated. To a medical expert in such a situation, the answer to the question of what public health orders constitute the minimal necessary restrictions on fundamental freedoms will look very different than it does to those who do not share this narrow focus.   

Consider the words that George Grant, in his important discussion (Technology and Justice, 1986) of the implications of the increasing technologization of society, identified as encapsulating the spirit of technological thought, J. R. O’s [censored. A.T.] “when you see that something is technically sweet, you go ahead and do it.”  The significance of these words is that the technological mind is inclined to reject external limitations, such as those of ethics, that stand between it and the actual doing of whatever it finds itself capable.   Modern medical thinking is thoroughly technological and O’s thought, translated into that of a physician and epidemiologist overseeing a pandemic, would be “when you see that you can slow the spread of the disease by doing A, you go ahead and do A”. “A” might have a thousand other effects, all negative, but the mind that prioritizes slowing the spread of an epidemic over all other concerns can acknowledge this and still come to the conclusion that the benefit outweighs the harm, demonstrating that its ability to make calculations of this sort is seriously impaired. (6) 

It is absolutely essential that those charged with the duty of protecting our fundamental rights and freedoms and holding government to its constitutional limits, recognize how the very nature of medical expertise tends towards the skewing of the medical expert’s perspective in this way and that therefore he is the last person to whose opinion government ministers and judges should defer in determining whether public health orders infringing upon fundamental freedoms are constitutionally justified out of necessity. 

For the courts to fail to recognize this is for the courts to shirk their duty and acquiesce as our country succumbs to the tyranny of technocracy. (7) 

 (1)  The applicants were the churches: Gateway Bible Baptist Church (Thompson), Pembina Valley Baptist Church (Winkler), Redeeming Grace Bible Church (Morden), Grace Covenant Church (Altona), Slavic Baptist Church, Christian Church of Morden, Bible Baptist Church (Brandon); ministers: Tobias Tissen (pastor of Church of God, Restoration in Sarto, just south of Steinbach) and Thomas Rempel (deacon of Redeeming Grace Bible Church); and individual: Ross MacKay.

(2)  Tom Brodbeck’s editorial commenting on these rulings for the local Liberal Party propaganda rag – or paper of record, depending upon your perspective – was given the headline “Case Closed, Science Wins”.

(3)  There is an unfortunate tautology here in that proportionality is the term used for both all three stages of the second step of the test taken together and the third stage of the same.

(4)  The pandemic is “unprecedented” only in the sense that the measures taken to combat it have been unprecedented in their extremity.   The Spanish Flu which ended about a century before the bat flu pandemic began killed between 25-50 million people.   The bat flu has killed about 5 million over the course of a similar span of time.   Not only is the total of the Spanish Flu much larger than that of the bat flu, it represents a much larger percentage of the world’s population which was considerably smaller at the time.   It took place at a time when health care and medical treatment options were far more limited than they are today, and yet public health orders never came close to what they are today, despite the earlier pandemic having started in a time of war when people were already accustomed to emergency restrictions.

(5)  Many of the news articles reporting on these rulings have been extremely misleading.   Several have reported that the Chief Justice ruled that no Charter rights were violated.   This is true only in the sense that there is a distinction between rights and freedoms and that the Chief Justice ruled against there having been a violation of Section 7 and Section 15 rights. With regards to Section 2 fundamental freedoms, however, he ruled – and the province admitted – that these had been violated, and that therefore there was a burden of justification on the government to prove these violations to be constitutional in accordance with Section 1. As the discussion of Section 2 was by far the most important part of the case, to summarize the entire ruling as if it were all about the Sections 7 and 15 challenges, is to utterly distort it.  

(6)  Suppose that a virus is spreading which, if unchecked, will cause 10 000 deaths.   The public health officer, if he takes Action B, can prevent the epidemic and all of those deaths.   However, Action B will itself cause 10 000 other deaths.   The number of deaths will be the same whether action is taken or not.   Should the public health officer take this action or do nothing?  It would be odious to attempt to resolve the dilemma by comparing the value of the 10 000 lives lost the one way, with the value of the 10 000 lives lost the other.   The person who makes the case for the public health officer’s taking Action B, therefore, would have to reason along the lines that since it is the public health officer’s duty to combat epidemics and save lives threatened by disease, and the intent behind Action B would be to save the 10 000 threatened by the epidemic not kill the other 10 000, Action B should be taken and the 10 000 lost to it considered collateral damage.   The person who would argue the other side would point out that the 10 000 lost to the epidemic would die of natural causes, that the 10 000 lost as a result of Action B would die as the direct consequence of human action, and that the human moral culpability for taking an action that directly results in a death is greater than the human moral culpability for not taking an action that would prevent a death by natural cause, ergo it is worse to take Action B than to not do so.   Which of these two arguments is the most persuasive? I would suggest that for people who are both normal and capable of rational, human, moral thought, the second of the two arguments is likely to be the most persuasive, and that those persuaded by the first of the two arguments are most likely to be found among medical experts.

(7)  That technological science was leading us to a universal technocracy which would be the worst of all tyrannies was a warning sounded frequently throughout the Twentieth Century by such thinkers as Jacques Ellul (The Technological Society, 1954, Perspectives on Our Age, 1981), C. S. Lewis (The Abolition of Man, 1943, That Hideous Strength, 1945), and René Girard (I Saw Satan Fall Like Lightning, 1999).   In Canada, George Grant played the role of Cassandra on this theme, which runs through his entire corpus of work from Philosophy in the Mass Age (1959) to Technology and Justice (1986).   It was central to the thesis of his 1965 jeremiad Lament for a Nation that by succumbing to the technologically driven capitalism of America, Canada was losing the pre-liberal traditions that informed her founding, and would be drawn like the rest of the world into the “universal homogenous state”, a technocracy that the ancients had predicted would be the ultimate tyranny.   Technological science, as he argued in the first essay of Technology and Justice, begins as man’s mastery of nature, but progresses into man’s mastery of himself, which translates into his mastery of other people.   He did not shrink from implicating modern medicine along with other more obvious culprits in this.

 ~Ω~