COVID 19 vaccines and informed consent: No Means No!

Last week I argued in my speech that no one can give informed consent to vaccines in the province of Ontario, since on May 20, Doug Ford tied reopening the province with vaccinations rates. This has meant that everyone is being coerced by Ontario’s most powerful authority figure, that every Ontario MD is aware of this coercion, and therefore they only can vaccinate people by violating the Health Care Consent Act of Ontario.

My conclusion seems self-evident from a reading of Ontario and Canadian laws and international codes of bioethical codes (Nuremberg Code, UNESCO’s Universal Declaration of Bioethics and Human Rights, etc.). Informed consent must be freely given or it is not consent at all, and MDs who do not obtain proper consent would be breaking the law. But in popular sentiment many stand against me, especially in our neighbourhood as I have seen it expressed on social media. There is resistance to this understanding of informed consent. Here are some of the arguments that some of our own neighbors have expressed:

  • Informed consent is (only) about the relationship between a doctor and patient. Thus, if the government, an employer or a school is applying the pressure, it isn’t an improperly obtained informed consent. This argument is clearly belied by the language of informed consent as expressed in the law codes, codes of ethics, and codes of professional conduct. For example the CPSO states that if a physician believes that the patient is under duress or that coercion is involved, then informed consent is not obtained. Nowhere in any of these important laws and codes does it limit coercion to what the MD applies to the patient. Indeed, the general language suggests that if the MD believes coercion or duress comes from any source, he or she has failed to obtain informed consent and must not continue with the treatment.
  • Informed consent may happen but there may also be “consequences”. Consequences like limited access to amenities, inability to exercise mobility rights, loss of jobs or places in schools are perfectly acceptable because you still have informed consent. This so transparently euphemistic that it hardly requires refutation, but let me try. You can’t soften the blow of coercion in this manner by calling coercion “consequences”. Throughout history minority groups have suffered consequences: e.g., the requirement to be a member of pagan guild to practice a profession which early Christians could not join because of the guild’s practice of idolatry—if you don’t join the guild, then the consequence was that you could not practice that profession. Or Jews and Christians in Muslim countries that had to convert to Islam in order to get a government job. The technical term for this kind of free choice is a Hobson’s Choice, a take it or leave it choice. But no third option is permitted. In that case, the Hobson’s choice is not freely given because the person wants to keep their job, or their place in a school, or their right to leave the house or to travel freely.
  • It’s not really coercion if it is not violent force. There’s no gun to the head of the patient who gets the vaccine and so it is a free choice. This is an argument which has no basis in law. So for example an employer could sexually harass an employee and that could be deemed sexual assault because of the lack of consent due to coercion—the employee could still claim that an assault occurred even if it appeared to be a consensual act. Coercion doesn’t have to imply violent force. On the other hand, if you do get fired or expelled from your school because of not receiving a vaccine, or if you aren’t allowed to enter a venue, believe me when I say that eventually violent force will be used. They will call the police with their guns and they will come and remove you by force if you do not leave of your own volition. People seem to think that because of large levels of compliance that there is no threat of force, but in fact, the threat of violent force is the method that governments use to make sure the public complies, and I don’t see how that will be any different with vaccine mandates.
  •  Informed consent applies to other people’s need to know your vaccine status and thus be able to avoid them. This is a far-fetched application of informed consent that has nothing whatsoever to do with the laws and codes of ethics. It would clearly violate privacy rights, but it is an argument that you may see on social media. And the health authorities seem to buttress this view with their praise of companies like Toronto Strip Clubs that are requiring vaccines from their staff and clients. It is similar to yellow stars given to Jewish people during Nazi Germany—so that others would know to avoid Jews and to strip them of their rights to enter places or to receive services. There is little difference. It’s just that in this case, it’s people who exercise their right to informed consent who are being persecuted.

Nicohalas Wansbutter, barrister in Stratford, Ontario, made a recent video in which  he says that assault is any application of force without consent. He says that consent is related to the right over your own person. Hence, assault is when another touches you without consent.

Informed consent thus has two parts. (1) Receiving adequate information before receiving a treatment; (2) giving consent to the physician or other health specialist to perform the treatment, preventative, or diagnostic. If there is a hand on element, such as touching, stabbing, piercing, etc, and there is no consent, it is arguably a form of assault (cf. Nicholas Wansbutter).

The legal meaning of consent is discussed by the Supreme Court of Canada. Here is passage that Wansbutter cites:

The rationale underlying the criminalization of assault explains this. Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one’s body, and how, lies at the core of human dignity and autonomy.  The inclusion of assault and sexual assault in the Code expresses society’s determination to protect the security of the person from any non-consensual contact or threats of force.  The common law has recognized for centuries that the individual’s right to physical integrity is a fundamental principle, “every man’s person being sacred, and no other having a right to meddle with it, in any the slightest manner”:  see Blackstone’s Commentaries on the Laws of England (4th ed. 1770), Book III, at p. 120.  It follows that any intentional but unwanted touching is criminal.

Wansbutter cites the Supreme Court as saying further:

To be legally effective, consent must be freely given.  Therefore, even if the complainant consented, or her conduct raises a reasonable doubt about her non-consent, circumstances may arise which call into question what factors prompted her apparent consent.  The Code defines a series of conditions under which the law will deem an absence of consent in cases of assault, notwithstanding the complainant’s ostensible consent or participation.  As enumerated in s. 265(3) , these include submission by reason of force, fear, threats, fraud or the exercise of authority, and codify the longstanding common law rule that consent given under fear or duress is ineffective:  see G. Williams, Textbook of Criminal Law (2nd ed. 1983), at pp. 551-61.    This section reads as follows:

(3)  For the purposes of this section, no consent is obtained where the complainant submits or does not resist by reason of

(a) the application of force to the complainant or to a person other than the complainant;

 (b) threats or fear of the application of force to the complainant or to a person other than the complainant;

 (c) fraud; or

 (d) the exercise of authority.

I have to admit that it is gratifying to me to see a person trained in law in Ontario saying the same thing as I am, a lay reader of the law. The citations of the Supreme Court of Canada decisions are very useful for showing that informed consent doesn’t exist where vaccine passports have been put in place. We want to uphold the basic human rights that are a part of common law in the English speaking world for centuries. But in our times, we are in danger of losing those rights.

[This speech was delivered at the corner of Bathurst and Rutherford on August 1, 2021, at the Vaughan anti-lockdown protest]