'Pandemics are different.' Why this isn't the time to abandon your individual health rights
There are times when individual needs and rights take a back seat to the broader needs of society — this is not one of them.
On November 25, the Canadian Broadcasting Corporation published an opinion piece by Saskatchewan medical officer of health, Dr. Cory Neudorf. Titled “‘Pandemics are different.’ Why this isn't the time to assert your individual health rights”, the piece is full of moral appeals but oddly devoid of facts. Dr. Neudorf argues that “There are times when individual needs and rights take a back seat to the broader needs of society”. At a general level, I do agree with this statement. But I have been lucky to know such times only from the history books. While SARS-CoV-2 is a highly infectious respiratory virus, it has hardly materialized as the pandemic threat it was made out to be in February or March 2020. Instead, in most countries the average age of COVID deaths was older than the overall average age at the time of death, and all-cause mortality remained in line with previous years.
In other words, SARS-CoV-2 is no more than a highly infectious respiratory virus. Yet, Dr. Neudorf uses military terminology to evoke a “global threat”, and governments and citizens that need to unite to “fight a common enemy”. And then there are “false dichotomies”, “extremist views”, and “politicization” that are to be blamed for creating “the perfect conditions for continued spread of COVID-19”. This too reminds me of my high school history class, some 35 years ago. Check your favourite encyclopedia for the stab-in-the-back myth (“Dolchstoßlegende” in German) suggesting that Germany lost WWI not on the military battle field but because of civilian betrayal at home. In other words, critical doctors, democratic protesters, and civil rights activists are stabbing our public health army in the back? It is easy to expose this narrative as a distraction from public health’s utter failure in addressing SARS-CoV-2 in any rational and effective way.
In “Reality Check: No, Canadian Colleges and Universities Cannot Mandate COVID-19 Vaccination Without Violating Charter Rights”, I have extensively documented why Ontario’s campus vaccine mandates do not pass a constitutional test based on the current knowledge about COVID-19 and the available genetic-based therapeutics (akin to fake vaccines). My position is moderate in comparison to many other government critics who point to a great number of laws and legal principles being broken in the name of the pandemic response measures, including but not limited to coerced vaccination.
“An Example of Courageous Pushback for Those Facing Vaccine Mandates in the Workplace” was shared by Canadian blogger Julius Ruechel. He reproduces a legal notice sent by Toronto Police Constable Adrienne Gilvesy to Chief Ramer. Const. Gilvesy declines to disclose her vaccination status to the force, referring to the Personal Information Protection and Electronic Documents Act (PIPEDA, 2000); the Personal Health Information Protection Act (PHIPA, 2004); the Ontario Occupational Health and Safety Act (1990); and the Municipal Freedom of Information and Protection of Privacy Act (1990). For example, the OOH&SA prohibits an employer from seeking access to an employee’s health record, except under a court order or “to comply with another statute”. The latter stipulation may, or may not, apply depending on how a judge would weigh provincial emergency legislation and directives from the chief medical officer of health against this prohibition.
Const. Gilvesy further declines testing with reference to the prohibition of genetic testing as a condition for various types of contractual agreements under the Genetic Non-Discrimination Act (GNA, 2017), referred to in her letter as Bill S-201. This prohibition arguably applies to employment contracts and agreements, and would make the use of PCR and rapid antigen tests for SARS-CoV-2 illegal in the workplace. Gilvesy also charges the Toronto Police Service with discrimination and harassment, since testing is used for unvaccinated, undeclared, and exempt members only, despite evidence that vaccinated individuals can carry and transmit the virus too. This evidence already existed at the time of writing the letter at the end of August 2021, and has further solidified by today, three months later.
Lastly, and most importantly, the vaccination requirement itself breaches some of the most fundamental rights of a person in an enlightened, 21st-century, free, and democratic society — principles which I hope we still all agree to uphold. Consent is generally defined as the voluntary agreement to a treatment or other interaction. According to Const. Gilvesy’s letter, under the Criminal Code of Canada various coercive elements invalidate consent, including threats, fraud, and the exercise of authority. For the health care sector, the Ontario Health Care Consent Act (1996) requires prior consent for any medical treatment and clarifies that consent must be given voluntarily on the basis of information without misrepresentation or fraud. Similarly, the Nuremberg Code requires “prior, free and informed consent of the person concerned, based on adequate information” and, as Gilvesy emphasizes, consent may be withdrawn “without disadvantage or prejudice”. These are rather ordinary stipulations, yet it is obvious that they are being violated in the current crisis, as facts about the risks from COVID-19 and the benefits of the injections are constantly misrepresented in the mass media, without corrections from public health officials.
Various interpretations and case law around Section 7 of the Canadian Charter of Rights and Freedoms guarantee the fundamental value of bodily autonomy and control. The “anti-vaccine protesters” decried by Dr. Neudorf and the CBC are quite right in adopting the feminist slogan “my body, my choice”. In the employment context, an astute analysis of recent arbitration decisions by Pohler and Gomez dispels the notion that a worker who has to decide between getting vaccinated and losing their job has a real choice. Work and the income gained are not randomly exchangeable or dispensable for most of us. In fact, article 23 of the Universal Declaration of Human Rights establishes the right to work and the free choice of employment.
While denouncing “conspiracy theories” among public health critics, Dr. Neudorf is blinded by his own conspiracy theory: that “pseudoscientific misinformation campaigns are aimed at increasing distrust in science or governments”. The idea that independent, unbiased scientists with actual subject matter expertise — epidemiologists, infectiologist, vaccinologists, toxicologists, microbiologists, immunologists, geneticists — might actually be right in their concerns does not suit Neudorf or other public health officials. Nor do they acknowledge the apparent lack of input from emergency management specialists and academics and practitioners from a range of disciplines. It increasingly looks like the crisis won’t end unless our public health bureaucracy is purged. In a couple of commentaries, publisher Irvin Studin is calling the shots: “Ontario's medical officers of health must resign” on November 10, and then today, “[Chief Public Health Officer] Dr. Theresa Tam must now resign”.