Colleges overseeing physicians can’t expect legal bodies to accept blanket statements about the efficacy and safety of COVID-19 vaccines as indisputable fact without providing formal evidence to back up their claims, a B.C. tribunal has found.
In a decision handed down last month, a British Columbia medical disciplinary panel told the province’s medical college that it couldn’t take “judicial notice” of blanket claims about vaccines the college was asserting in its fight with B.C. physician Charles Hoffe.
“Judicial notice” is a legal concept wherein judges accept a general fact as already established without requiring formal evidence to substantiate the claims. The supposed facts were that “vaccines work”, they are “generally safe and have a low risk of harmful effects, especially in children”, that infection and transmission of Covid-19 was “less likely” among the vaccinated and that regulatory approval of vaccines by Health Canada was a strong indicator of safety.
Hoffe was suspended by the British Columbia College of Physicians and Surgeons at the height of the pandemic after reporting adverse reactions from patients to the COVID-19 vaccine.
The college suspended Hoffe from practicing emergency medicine in a remote community near Lytton, B.C. Hoffe alleged deaths and severe adverse reactions to the Moderna vaccine among patients ranging from 38 to 82 years of age.
As a result of the claims, Hoffe has been involved in a protracted legal battle to clear his name with the college. Supporters of the embattled doctor have set up a legal defence fund to cover the costs of the dispute.
In a case before the disciplinary panel, the college argued that Hoffe perpetuated “misinformation which harms the public.” In an attempt to shut down Hoffe’s challenge, lawyers representing the regulatory body demanded that the panel take “judicial notice” of eight facts related to vaccine safety and efficacy.
In their ruling, the adjudicators didn’t think it was appropriate to accept these claims at face value.
“In the Panel’s view, these ‘facts’ are too broad and imprecise to be the subject of judicial notice in the context of this case,” reads the ruling.
“Further, in some instances, they suggest opinion or argument rather than an incontrovertible fact capable of being sufficiently notorious or immediately demonstrable so as to justify judicial notice in the circumstances (for example, the statement that vaccines are ‘generally’ safe and have a ‘low’ risk of harmful effects incorporates two matters of judgment or opinion, rather than specific and objective fact).”
In a statement, Hoffe’s lawyer, Lee Turner, called the ruling a “clear win” for Hoff and others like him.
“This is the first decision of its kind in Canada that I am aware of in a disciplinary hearing context that provides such thorough and clear reasons as to why judicial notice should not be taken of these disputed facts,” wrote Turner.
The panel is a professional adjudicative body and its decision is not binding in a court of law. The disciplinary case involving Hoffe is still ongoing.
Citing a 2023 Saskatchewan Court of Appeal ruling on the issue of vaccines being safe and effective, the panel noted that pharmaceutical products can’t be discussed in such a blunt way given their potential side effects.
Additionally, the panel stressed that it declined to take judicial notice of another claim made by the college that “regulatory approval is a strong indicator of vaccine effectiveness” as it pertains to Health Canada’s authorization of the COVID-19 vaccines.
“The Panel declines to take judicial notice of the portion of (the statement) that reads ‘regulatory approval is a strong indicator of safety and effectiveness.’ In the Panel’s view, this is not a fact. It is an inference that could flow from the fact of regulatory approval – subject to evidence and argument to be heard on that question – rather than a fact to be judicially noticed.”
The penal did, however, take notice on the following statements: the COVID virus kills or causes other serious effects, Health Canada has approved COVID vaccines, Health Canada has not approved ivermectin to treat COVID-19, and Health Canada advises that Canadians should not consume the veterinary version of ivermectin.
