According to a recent report published by Canadian network broadcaster CTV, Christine Elliott, the Minister of Health for the province of Ontario, stated that the province has no intentions of making any of the upcoming COVID-19 vaccines mandatory.

The province does have plans to provide everyone who takes the vaccine with proof of vaccination.

However, she did add a caveat, or caution, to her statement to the effect that Ontarians who refuse to get vaccinated may experience restrictions on their freedom of movement in terms of being able to access certain public venues or other settings.

From a legal standpoint, the province cannot make the vaccine mandatory. To do so would violate various sections of the Charter of Rights and Freedoms, particularly s. 7, which guarantees ‘life, liberty and security of the person’. (1)

After all, one does not have liberty if they are not free to decide for themselves what happens to their bodies and how they will live their lives. They also cannot have ‘security of the person’, if they are forced to take a vaccine that may prove to be harmful despite the vaccine manufacturers’ claims of efficacy and safety.

If people are forced to take the vaccine in spite of Charter guarantees, and it proves to be dangerous, even deadly, then this would have the same effect as being sentenced to death or severe physical punishment while not having been found guilty of any crime that would potentially justify a death sentence or severe punishment, and in the name of fighting a virus which, while deadly for some, has not proved to be lethal to very large numbers of people.

The problem is that many of the vaccines now being released are based on new and hitherto untested technology, with no long-term track record of safety. They have been developed in record time with none of the extensive testing that is normally part of vaccine development and which explains why most vaccines take years, not months, to be proven safe and effective.

Mandating the vaccines would also offend the principles of the Nuremberg Code. (2)

The Nuremberg Code is a legal document that emerged from a verdict in trials where Nazi doctors accused of various war crimes and illegitimate or illegal forms of medical experimentation were tried in the immediate aftermath of the Second World War.

While the Code is not believed to have any legal force in German or American law, or the laws of any other country, it is a recognized precedent in the field of international jurisprudence. It, along with the related Helsinki Declaration, are the basis for Health Canada and US health regulations.

The code is based upon 10 principles, namely:

  1. The voluntary consent of the human subject is absolutely essential.
  2. The experiment should be such as to yield fruitful results for the good of society, unprocurable by other methods or means of study, and not random and unnecessary in nature.
  3. The experiment should be so designed and based on the results of animal experimentation and a knowledge of the natural history of the disease or other problem under study that the anticipated results will justify the performance of the experiment.
  4. The experiment should be so conducted as to avoid all unnecessary physical and mental suffering and injury.
  5. No experiment should be conducted where there is an a priori reason to believe that death or disabling injury will occur; except, perhaps, in those experiments where the experimental physicians also serve as subjects.
  6. The degree of risk to be taken should never exceed that determined by the humanitarian importance of the problem to be solved by the experiment.
  7. Proper preparations should be made and adequate facilities provided to protect the experimental subject against even remote possibilities of injury, disability, or death.
  8. The experiment should be conducted only by scientifically qualified persons. The highest degree of skill and care should be required through all stages of the experiment of those who conduct or engage in the experiment.
  9. During the course of the experiment the human subject should be at liberty to bring the experiment to an end if he has reached the physical or mental state where continuation of the experiment seems to him to be impossible.
  10. During the course of the experiment the scientist in charge must be prepared to terminate the experiment at any stage, if he has probable cause to believe, in the exercise of the good faith, superior skill and careful judgment required of him that a continuation of the experiment is likely to result in injury, disability, or death to the experimental subject.

The upshot of the first principle is that no person can be compelled to take medical treatment or participate in medical experimentation unless they consent to either. The newness of the COVID-19 vaccines and lack of extensive vetting means they can constitute a form of medical experimentation. Vaccines are, by definition, medical treatments and procedures.

The main guiding principles of the Declaration of Helsinki can be found in Articles 8, and 22, which uphold respect for the individual and his or her right to self-determination and informed consent. An associated principle, encoded in Article 5, holds that the subject’s welfare must take precedence over the needs of science and society. Article 9 states that

“ ‘ethical considerations must always take precedence over laws and regulations.’ “ (3)

It can be argued that people who get vaccinated against COVID-19 are unable to give informed consent because there is no good information available yet on the potential long-term health and physical effects of any of the vaccines.

However, where things get tricky is Elliott’s statement that various private-sector entities and others will be allowed to demand proof of vaccination before anyone can enter their premises or make use of their services. Such demands are radical and unprecedented in the sense that they have never been needed before, insofar as there may be bona fide reasons for requiring nurses and doctors to be vaccinated against various communicable diseases, and for school-age children to be vaccinated as well. It isn’t necessarily a given that such people must continuously show proof of vaccination to access their workplaces or classrooms. But people accessing certain venues or settings where the owners of such venues demand proof of vaccination may be forced to do so simply to conduct their daily business.

Allowing unelected, unaccountable entities to demand proof of vaccination would have the net effect of allowing them to effectively legislate public health policy, and usurp government power to set and administer public health policy, laws and regulations. In essence, it would make vaccination mandatory through the back door. It would also render the provincial government immune from any Charter challenges, at least on a superficial and temporary basis. The courts may later find that the government’s attempt to make vaccination mandatory through the back door did indeed violate the Charter.

That the provincial government would seriously countenance permitting such action smacks of a government that wants to make vaccination mandatory, but is trying to avoid the political blowback that such a move would bring by getting others to do their dirty work. It also indicates that we have a government that lacks the courage of its own convictions and possibly doesn’t know what it’s doing.

More surprising is the possibility that government lawyers didn’t restrain Elliott from making her ill-advised pronouncements, considering their serious and wide-ranging Charter implications.

During the closing years of the Second World War, Canadian prime minister MacKenzie King was confronted by a problem: whether to implement conscription to replace mounting losses of Canadian troops during the campaign in Italy and in Normandy after the D-Day landings.

While the matter was a topic that sparked considerable debate in Canada’s Parliament and amongst the public, it prompted King to famously say: “Conscription, but not necessarily conscription,” a statement that further inflamed public uproar and controversy. In the end, the proposal to implement conscription was dropped.

Where Ontario’s Minister of Health Christine Elliott is concerned, it looks like we’ll have ‘mandatory vaccination but not necessarily mandatory vaccination’.

FOOTNOTES

(1) Constitution Act, 1982, Part I: Canadian Charter of Rights and Freedoms. https://laws-lois.justice.gc.ca/eng/const/page-15.html, retrieved 9 December 2020.

(2) Wikipedia: Nuremberg Code. https://en.wikipedia.org/wiki/Nuremberg_Code last edited 3 December 2020, retrieved 9 December 2020.

(3) Wikipedia: Declaration of Helsinki. https://en.wikipedia.org/wiki/Declaration_of_Helsinki, retrieved 9 December 2020.

Article written by Huron Zephyr

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