Judicial Notice Win

Full Story:

Dr. Charles Hoffe is a family and (former) emergency room physician in British Columbia who is the subject of disciplinary proceedings before the College of Physicians and Surgeons of British Columbia for making public statements about SARS-CoV-2, the safety and efficacy of the COVID-19 vaccines, and other alternative treatments including ivermectin, has successfully defeated an application made by the College seeking judicial notice of the truth of facts alleged by the College concerning these issues. In its efforts to discipline the physician, the College has alleged that the statements made by the physician are misleading, incorrect or inflammatory and constitute professional misconduct. 

The College asked the discipline panel to take judicial notice of the following facts and thereby prevent the doctor from presenting any contrary evidence in his defence:

1. X The Covid virus kills or causes other serious effects;

2. XX The virus does not discriminate;

3. XX Vaccines work;

4. XX Vaccines are generally safe and have a low risk of harmful effects, especially in children;

5. X Infection and transmission of the COVID-19 virus is less likely to occur among fully vaccinated individuals than for those who are unvaccinated; vaccines do not prevent infection, reinfection or transmission, but they reduce the severity of symptoms and the risk of bad outcomes;

6. X Health Canada has approved COVID vaccines, and regulatory approval is a strong indicator of safety and effectiveness;

7. Health Canada has not approved ivermectin to treat COVID-19; and

8. Health Canada advises that Canadians should not consume the veterinary version of ivermectin.

In its June 29, 2024 decision, the disciplinary panel of the College of Physicians and Surgeons of British Columbia declined to take judicial notice of items 2-5 (XX), did take judicial notice of items 7-8 (the straightforward ivermectin claims), and took judicial notice of a revised version of items 1 and 6 (X). 

The panel was prepared to take judicial notice of item 1 that reads:  "COVID-19 can kill or cause other serious effects”. 

The College explained their rationale for taking judicial notice of a revised version of item 1 by referencing evidence presented by the doctor in his defence that included the following - contradicting the statements from item 2-5 above:

• risk of severe disease and death from COVID-19 is extremely skewed to those above 70 years of age, especially those with multiple comorbidities. The average age of persons that died from COVID-19 in Canada was approximately 84 years old;

• very low proportion of COVID-19 related deaths in Canada occurred in those under 50 years of age-the data shows very high (although not 100%) survival rates for those under 70;

• average rate of lethality from COVID-19 for Canadians is much lower than estimates given by public health officials; and

• reported hospitalizations and deaths from COVID-19 have been over-counted, because many hospitalizations and deaths "with, and not from" COVID-19 were wrongly attributed to COVID-19

With respect to item 6, the panel endorsed findings of an earlier provincial Court of Appeal decision that held the safety and efficacy of any drug is always relative and as a rule the safety and efficacy of a pharmaceutical product cannot be discussed in such blunt fashion as to say that it "is" or "is not" safe and effective. The panel held that the issues raised in the citation should be determined based upon the evidence that is tested through cross-examination rather than by taking judicial notice of one party's assertion of the facts, and in this case, based upon statements made by public health officials or public health agencies.  The panel held that it was prepared to take judicial notice of the fact that Health Canada had approved*  the COVID -19 vaccines, but declined to take judicial notice that Health Canada’s approval was a strong indicator of safety and effectiveness.

PS. Later attorney Lee Turner has also confirmed that the panel was prepared to take note that that "Health Canada had authorized*  - NOT approved - the COVID -19 vaccines, which indicates that testing protocols and criteria that were used to "authorize" COVID vaccines were used, compared to those used by past vaccines that were "approved"

The case against Dr. Hoffe is far from over. Nevertheless, this development is significant in that a government agency cannot make the rules, interpret them, and claim they hold the truth on an evolving scientific or medical issue.

Repercussions:

This is the first decision of its kind in Canada 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. It should be of use to all other health professionals who are facing a similar situation and likely will be of assistance in other civil cases within the court system.

Justice fighters are definitely making progress. The fact that the disciplinary panel would not blindly accept as "facts" all of the statements from The College related to COVID infection and vaccine is an excellent precedent.