Dr. Charles Hoffe’s Tribunal: The Facts Will Not Be Ignored
The College of Physicians and Surgeons of British Columbia Tribunal rules against blanket judicial notice of significant facts.
Yesterday, during Wins of the Week, we reported that Dr. Charles Hoffe and his lawyer, Lee Turner, successfully opposed the College of Physicians and Surgeons of BC's application. The College sought an order from the panel to take judicial notice of their version of the facts concerning the safety and effectiveness of the COVID vaccine and SARS-CoV-2, but this application was defeated.
As promised, we're publishing a detailed report on this matter. It begins with a letter from Lee Turner, JD, explaining the situation, followed by the complete collection of documents, starting with the CPSOBC's explanation of the decision.
Subject: Judicial Notice Decision for Dr. Charles Hoffe
Date: July 5, 2024 at 12:58:16 PM PDT
Hello everyone,
I wanted to let you all know that we were successful in defeating the application of the College of Physicians and Surgeons of BC where they sought an order from the panel taking judicial notice of their version of facts concerning the safety and effectiveness of the covid vaccine and SARS-CoV-2. I am providing this to you (some who are lawyers and many who are not) so you are aware of this positive decision. In my opinion, this decision is a clear win for Dr. Hoffe and for anyone who is facing similar arguments by government or public health officials or institutions in a disciplinary context. While the panel made it very clear that they have not accepted or rejected our expert evidence at this stage, they have now seen it. 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. 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. Although this decision is not binding on a court, it is written in a manner that you would normally see in a court decision and the reasoning and the legal arguments made are sound and would be persuasive to a court in my opinion. One of our panel members is a retired BC Supreme Court and BC Court of Appeal judge. I would not be surprised if he wrote the decision or at least had some significant input.
I will highlight what I consider to be the key aspects of the decision, but I have attached the decision for your review. Please feel free to share this decision on your social media and with any lawyers or individuals that you think this may help. I have also attached the College’s application and my reply to the College’s application which shows the legal arguments. I have attached Dr. Hoffe’s affidavit but have not provided all of the exhibits due to its length but I can certainly do so if someone would like it. If you would like the attachments as well just let me know and I can send them to you through dropbox or secure docs. I have not attached the College’s reply where they attack the reliability and weight of our expert reports, but I could certainly do so if someone wants it.
In paragraph 4 of the decision, the panel details the 8 “Notice Facts” (which actually contain more than 8 facts) that the College was seeking judicial notice of. In paragraph 8 of the decision the panel sets out what they are prepared to take judicial notice of. I have no issue with the facts that they did take judicial notice of as I think they are facts. These facts do not help the College in proving their charges against Dr. Hoffe in any way. As a result of this decision, the College will be required to prove their case by presenting evidence that is subject to testing through cross-examination.
At paragraph 12 of the decision the panel reiterates their previous criticism of the College for bringing this judicial notice application approximately 2 weeks before the then scheduled start of the hearing which was to occur between March 1-14th 2024. It is also important to note that the panel began or opened the hearing on May 31, 2024. This is important because the College is not allowed to introduce new expert evidence or documentary evidence unless it is provided to us at least 14 days before the hearing commences. They have indicated that if they lost this application they were going to be getting 8 additional experts and potentially 2 or 3 additional lay witnesses. I will be opposing any such argument. The Health Professions Act contains these provisions regarding the exchange of evidence to be utilized at a hearing, and it also contains a loophole that allows the panel to ignore these rules if not doing so would unduly prejudice one of the parties (s.38(4.2)) However given the fact that the Colleges recognize that Dr. Hoffe is entitled to a very high level of procedural fairness, and that is the reason s.38 (4.1) is in the HPA, I am hopeful we will be able to persuade the panel that they should not exercise their right to use s.38(4.2) in this instance to allow the College to essentially have a do over in terms of providing evidence to justify the charges set out in the citation and in their letter of particulars.
At paragraph 14 the Panel confirms that the College intends to tender expert evidence from Dr. Trevor Corneil. Although the College tried to suggest in their application materials that Dr. Corneil was simply offering background facts, when his report was originally served on Dr. Hoffe's former counsel, counsel for the College confirmed they were serving his report as an expert report. They have also previously made this commitment to the panel in other appearances. My belief is the reason they are doing this is so that they can try to bolster their argument that they need 8 additional experts as they have previously stated, if they were unsuccessful in their judicial notice application. It is also important to note that the panel recognized that the 8 expert reports that we have tendered in response to the judicial notice of application were tendered for the purpose of supporting the veracity of the various statements made by Dr. Hoffe that he is now being persecuted for.
The College has suggested some of the additional experts they intend to call will include a cellular biologist, a virologist, a cardiologist, a hematologist and a gynecologist. (Paragraph 17). The panel summarizes the College's rationale for their application in paragraphs 15-22. The panel points out the inconsistent position taken by the College with respect to the reliability of your expert evidence (paragraph 29-30).
The Court explains why it was prepared to take judicial notice of the fact that there is a potential for the Covid virus to cause death or other serious effects but in doing so emphasized that the level of that risk is one of the central issues in dispute. The panel notes that some of the evidence provided by Dr. Hoffe's experts confirm that the risk of severe disease and death is extremely skewed to those above 70 years of age, especially those with multiple comorbidities. The court noted our submission that the data shows that there is a very high survival rate for those under age 70. The panel also chose to highlight some of our other arguments at paragraph 47 which I think is a good sign that they are paying attention to the submissions and felt them worthy of mention. Paragraph 48 summarizes their conclusions on this issue.
The facts that the College sought judicial notice of that were dangerous to Dr. Hoffe's defence were those in items 2-5. Thankfully the College declined to take judicial notice of any of those items (paragraph 49). The College agreed with our argument that these facts were too broad and imprecise to be the subject of judicial notice (paragraph 52), not to mention that they are not true. The panel was not about to draw that conclusion in the context of the judicial notice application however. That determination will be left to be determined after the hearing has concluded based upon the evidence presented at the hearing.
With respect to the suggestion that the virus does not discriminate, the panel accepted our argument that this was too vague to be a proper fact for judicial notice and made note of our argument that the virus does indeed discriminate in terms of who is more likely to be infected and the seriousness of the consequences to certain individuals if infected.
The panel endorsed important language in a decision rendered by the Saskatchewan Court of Appeal where it held that 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 a blunt fashion as to say that it "is" or "is not" safe and effective. The endorsement of this principle is important. (See paragraph 58).
The Panel concluded that it cannot reach an accurate and reliable conclusion on the issues raised by the College without hearing from Dr. Hoffe's experts and permitting them to be cross-examined. (Paragraph 70).
The panel makes it very clear that they have not made any determinations about the reliability of our expert evidence but does point out on a number of occasions that the College admitted that the evidence we have presented contradicts their "Notice Facts" that they sought judicial notice of. This admission necessitated the College to make the arguments in their Reply about the reliability of, and weight to be given to, our expert opinions. (Paragraph 88).
Another conclusion of the panel that is important is where they state that appellate courts have shifted away from using judicial notice to resolve scientific questions about the safety and efficacy of pediatric Covid 19 vaccines and moved towards a presumption in favour of parental decision-making that is consistent with Health Canada recommendations in family law proceedings. These decisions conclude that parents and courts are entitled to rely on Health Canada's recommendations as indicating the course of action presumed to be in the best interest of children, absent compelling evidence to the contrary. While I suspect we all agree that Health Canada has not earned the privilege to be granted such a presumption, I suspect we also agree that there is compelling evidence to the contrary. The key is making sure that the people with the right qualifications clearly present that evidence to the courts and these panels so that we can start to turn the jurisprudence around on this issue and demonstrate that Health Canada should not be entitled to such a presumption. Our expert opinion, and this case overall, presents an opportunity to begin this process.
While the panel quotes the troubling Court of Appeal decision out of Alberta in Holden v. Holden, at paragraph 93, which stands for the proposition that courts do not need to second-guess Health Canada for the purpose of deciding whether it' s recommended vaccinations are in a child's best interests, they do endorse a very useful quote from a Saskatchewan Court of Appeal decision in paragraph 95 which I believe is critically important. The Saskatchewan Court of Appeal in OMS v. EJS made it clear that the fact that Health Canada has granted approval of a new drug is such a broad and categorical statement that it has little meaning or utility. The Saskatchewan Court of Appeal confirms that the fact that regulatory approval has occurred means only that Health Canada has determined, based on a risk-benefit analysis, that a drug is sufficiently safe, effective and of sufficient quality to be approved, if it is used in accordance with the approval, including the product monograph, together with any medical advice and monitoring that may be required. One of the key points stated by the Court of Appeal is that they noted the existence of easy-to-find case law or reports of instances where drug companies have been found to have brought on the market products that have passed a regulatory process and have been found to be associated with risks that are later determined to have been misdescribed or missed altogether in the product information that accompanies the distribution of the product. For those reasons, the Saskatchewan Court of Appeal said that they found it impossible to arrive at a conclusion that the Pfizer vaccine is safe because it is government approved and is so notorious or generally accepted as not to be the subject of debate among reasonable persons or so capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. In other words, the Saskatchewan Court of Appeal is making it clear that despite Health Canada finding a variety of drugs safe and effective in the past, many of them have later been withdrawn from the market because this conclusion turned out to be false.
While I still find the decisions in a family law context troubling, the panel does point out that in Holden in the Alberta Court of Appeal and in OMS in the Saskatchewan Court of Appeal that when considering whether or not a child should be vaccinated, it is not necessary to make a separate inquiry into the safety, effectiveness and desirability of vaccination unless there is sufficient evidence to put these issues into question. The example they give is evidence of child-specific medical concerns. I would suggest that general safety concerns of the product should be enough but the reality is that in family law cases often the litigants do not have access to experts like those we have been privileged to work with on this case.
The panel summarizes these cases in paragraph 100 where it makes a very important statement . The panel concludes that while in the family law context in most cases the presumption that a drug or vaccine approved by Health Canada is safe and effective will be sufficient to dispose of the issue, unless a party adduces such evidence to displace that presumption, which in such case the issues of safety or risk from vaccination should be resolved on the evidence.
The panel also accepted our argument that a disciplinary proceeding is starkly different from all of these family law cases. Based on the jurisprudence, it is a professional discipline matter that calls for a high degree of procedural fairness (although one would think that the safety of children would be at least as important) and that the citation squarely raises the question whether the statements made by Dr. Hoffe were true. The panel makes this important conclusion in paragraph 102 "The fact of regulatory approval does not provide a presumptive answer to this question in the same way that it does for the question of whether a child should receive a vaccine." Again I disagree with the fact that children should be subject to some lower standard of procedural fairness but at the very least we have the panel saying here that just because Health Canada approved something does not necessarily mean that they are safe or effective. The panel has decided that the must review the evidence before making such a determination.
The panel made it clear that although they were prepared to take judicial notice of the fact that Health Canada had approved the covid vaccines, they declined to take judicial notice of the assertion that regulatory approval is a strong indicator of safety and effectiveness as has been done in a number of other cases. (Paragraph 107). The panel made a distinction that I am not sure I agree with at paragraph 108 where they distinguished the Ontario Court of Appeal decision in JN v. CG where the court found that judicial notice should be taken of regulatory approval, and that regulatory approval is a strong indicator of safety and effectiveness, on the basis that this pertained to pediatric covid 19 vaccines. Again I am not sure why the children are subject to a lower threshold of protection than a medical professional in a disciplinary proceeding. For our purposes with Dr. Hoffe’s matter, the panel went out of its way to distinguish this Court of Appeal decision to justify its refusal to take judicial notice of these facts sought by the College in the circumstances.
So this is one of those victories that we need to take a moment to celebrate but there are still many battles to be fought in this case. On Monday we are going back before the panel for a case planning conference and at this hearing we will likely discuss whether or not the College still intends to attempt to tender 8 additional expert reports and 2 or more additional lay witnesses, and if so, when I will be permitted to make written arguments objecting to same.
I hope you will find this encouraging and potentially helpful to others you know of that are involved in these types of situations with the professional body or health authority, or possibly in other contexts as well.
Regards,
Lee C. Turner
Partner, Professional Law Corporation
CPSBC: Reasons for Decision - Judicial Notice Application
Affidavit of Dr Charles Hoffe March 20,2024
Application Response to Affidavit of Dr Charles Hoffe
Stay tuned for updates on this case! We’ll cover the latest developments in an upcoming episode of Wins of the Week. Make sure to subscribe so you don’t miss out!
We are so thankful for this outcome thus far . Dr Hoffe is such a sinning light in all of this darkness🤺
the wheels of justice turn slowly....i pray that all our doctors who are subject to malicious persecution by our overlords are restored; their high standards in practice are crucial to our survival as a species.