“The science is settled” was a declaration often made by officials who designed, recommended, and implemented health policies and mandates during the declared COVID-19 pandemic. Institutions like Health Canada and the Public Health Agency of Canada, together with the officials who represent them, have been accepted as sources of authoritative expertise by government, the media, and the general population. In this manner, unelected health officials have been placed in a position to dictate what is accepted as true, and have been given the ability to impose rules upon Canadians. Many of these policies have infringed on Canadians’ rights and freedoms and violated the sanctity of the patient-clinician relationship. As guaranteed by the Charter of Rights and Freedoms, however, when state actions infringe upon rights and freedoms, those residing in Canada have the right to challenge the legality of allegedly offending laws, decisions, and policies through the Canadian judicial system.
In Canada’s parliamentary democracy, there are three branches of government: 1. the legislative branch, being our elected officials who create laws; 2. the executive branch (including the administrative state consisting of appointed officials), who implement the laws; and 3. the judiciary, comprising judges who interpret and apply the law to individual cases.
Canadians rely on the judiciary to ensure that the legislative and executive (including administrative) branches of government behave legally and do not overstep their boundaries. To remain the guardian of the democratic rule of law, the judiciary must remain independent, and its judges must be willing to entertain and scrutinize all relevant evidence available for the cases over which they preside. Failing to do so makes it impossible to challenge the legality of both the creation and implementation of laws which infringe on the rights of citizens.
In its disciplinary case against Dr. Charles Hoffe, the College of Physicians and Surgeons of British Columbia sought judicial notice of certain facts. In other words, they asked that these facts be accepted as absolute truth without requiring any proof. To grant this request would essentially accord absolute power to Health Canada and the Public Health Agency of Canada (part of the administrative state), to dictate policies without the opportunity for scrutiny. This unchecked institutional authority to dictate policies restricting the rights and freedoms of Canadians without either scrutiny or the possibility of remedy is an unsettling consequence of simply accepting the declaration that “the science is settled”.
Within this framework, Dr. Matthew Evans-Cockle explains the importance of the refusal of the College of Physicians and Surgeons of British Columbia’s disciplinary panel to take judicial notice of certain facts in the disciplinary case against Dr. Charles Hoffe. This important ruling is further explained by a statement written by Dr. Hoffe’s legal counsel, Mr. Lee Turner.
