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Defence chief was warned about legality of military’s COVID-19 vaccine mandate: memo

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OTTAWA — The commander of the Canadian Armed Forces was warned by his senior legal and medical advisers last year that requiring all troops to be vaccinated against COVID-19 was unnecessary ⁠ — and that doing so “may not constitute a legal order.”

The message was delivered to chief of the defence staff Gen. Wayne Eyre in an August 2021 briefing note, two months before then-defence minister Harjit Sajjan directed him to impose a vaccine requirement for all troops.

In two separate interviews with The Canadian Press, the defence chief described the briefing note as one of several legal opinions received before handing down his order in October 2021.

“We get lots of legal opinions out there, but we can’t allow one legal opinion from stopping us from doing the right thing,” Eyre said. “And here, the right thing is ensuring our operational readiness so that we can protect Canada and Canadian interests around the world.”

However, Catherine Christensen, the Edmonton lawyer who obtained the briefing note through the Access to Information Act, argued the document shows Eyre’s order was driven by politics.

The Aug. 27, 2021, briefing note was presented to Eyre by Maj.-Gen. Trevor Cadieu, who was one of the defence chief’s strategic advisers at the time. It was prepared “in close collaboration” with senior medical, legal, political and public affairs officers and it incorporates legal analysis from the Department of Justice.

Citing concerns about a fourth wave of COVID-19 driven by the Delta variant, the advisers noted the benefits of vaccination in preventing the spread of disease, adding vaccine mandates “may be effective in increasing coverage rates.”

They also described the purpose of a broader federal vaccine mandate would be “not only to protect public health, but also for the federal government to demonstrate leadership and assist in economic recovery.”

On Aug. 13, 2021, the Liberal government had announced a vaccine mandate for federal public servants, as well as workers and travellers in federally regulated transportation sectors.

The memo suggested a universal mandate was unnecessary to protect the health of the Canadian Armed Forces, given that more than 90 per cent of Armed Forces personnel were already vaccinated at that time.

The early analysis noted “the level of legal risk” for a mandatory COVID-19 vaccine policy would depend on the final details, as well as “the strength of the public health rationale and how the policy will be implemented.”

It said that would include any accommodations and mitigation measures for those either unable or, notably, unwilling to be vaccinated, which it recommend to help defend against Charter challenges.

The advisers also warned that Armed Forces members could try to push back against the vaccine mandate on safety grounds. At that time, Health Canada had authorized COVID-19 inoculations under a special interim order due to the emergency nature of the pandemic.

“Prior to full approval of the vaccines under Canada’s Food and Drug Regulations, CAF members ordered to receive COVID-19 vaccination might argue that they are being ordered to accept a new and potentially dangerous medical substance into their body,” the note said.

The interim order, which expired in September 2021, allowed the government to authorize vaccines faster than normal where the benefits were deemed to outweigh the risks.

In their note, Eyre’s advisers cited the case of former Sgt. Mike Kipling, who was charged in 1998 under Section 126 of the National Defence Act, which allows the military to charge members who “wilfully and without reasonable excuse” refuse an order to get a vaccine.

Kipling had been ordered to take an anthrax vaccine while serving in Kuwait, but refused because he considered the drug unsafe. The vaccine was unlicensed for use in Canada. A military judged eventually ruled in favour of Kipling, agreeing his Charter rights were infringed. The Forces appealed and a new court martial was ordered, but the military decided to drop the proceedings.

Eyre was told military personnel who refused a vaccination order could be similarly charged under military law, but “there is a significant risk in ordering CAF members to accept COVID-19 vaccination, as it may not constitute a legal order.”

The memo also said a mandate for the Armed Forces “would not only be punitive in nature, but would also be counter to the successful efforts made to date to encourage maximum voluntary uptake of the COVID-19 vaccine.” The advisers suggested the military share its voluntary approach with other federal departments as a “best practice.”

The advisers concluded by expressing support for the federal government’s intent to bring in a proof-of-vaccination policy, but again cautioned that the rollout would need “prudent planning” that kept in mind the challenges they described.

Eyre first ordered all Armed Forces members to attest they had been fully vaccinated against COVID-19 on Oct. 6, 2021.

Rather than charging those who refused to comply, the military forced about 300 non-compliant Armed Forces members out of uniform using an administrative process called a 5F release that declares them unfit for service.

About 100 troops have left voluntarily. Hundreds more had permanent censures put on their files. Outside the military, most federal employees were allowed to go on leave without pay and returned to their positions after the mandate was suspended in June.

The Armed Forces’ vaccination policy does allow exemptions for medical reasons, religious beliefs or any other grounds of discrimination under the Canadian Human Rights Act, to be determined on a case-by-case basis. In late April, a parliamentary committee heard that more than 1,300 members had requested exemptions, but nearly 1,000 had been denied.

Retired lieutenant-colonel Rory Fowler, who is now a lawyer specializing in military cases, said the decision to use 5F releases instead of charging unvaccinated troops means the Armed Forces doesn’t have to defend the legality of the order in court.

And while troops can file a grievance, it currently takes about three years for a case to be heard — with the defence chief serving as the final authority.

Christensen, who is representing a number of those unvaccinated troops who lost their jobs, said she believes the briefing note explains why the military is using 5F releases instead of charging those who refuse to comply with Eyre’s order.

“They didn’t want their mandate or their order for everyone to be vaccinated to be challenged in court,” said Christensen. She said Eyre had the power “to order everyone to be vaccinated. Full stop. Then if they did not want to be vaccinated, they had to come up with a reasonable excuse at court martial. … (Eyre) didn’t do that.”

Fowler has previously raised concerns about the military trying to punish soldiers without involving the courts in other situations, and believes there are legitimate questions about the legality of the vaccine order.

“What I believe is it should be tested,” he said.

Eyre and his office have not said exactly why that decision was made. His office said in a statement that “administrative measures and the administrative review process was considered the most appropriate approach.”

Asked if the decision to avoid the courts was the result of concerns about the legality of his order, Eyre said: “Not at all. We had numerous legal opinions.”

The defence chief also said that while Sajjan directed him to include the Armed Forces in the broader federal government’s mandate, “I was in agreement at that time, I issued the order. … Make no mistake, it’s my order.”

This report by The Canadian Press was first published Oct. 24, 2022.

Lee Berthiaume, The Canadian Press

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Brownstone Institute

FOIA Doc Shows BioNTech Founders Postdated Start of C19 Vax Project

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From the Brownstone Institute

BY Robert KogonROBERT KOGON

As noted in my last article on BioNTech’s “brazen” avoidance of safety testing of its Covid-19 vaccine, BioNTech founders Ugur Sahin and Özlem Türeci claim in their book The Vaccine that the company’s Covid-19 vaccine project got underway on January 27, 2020. But documentary evidence released in response to a FOIA request (and included in the so-called “Pfizer documents”) shows that this is not true and that the company had in fact already begun preclinical, i.e. animal, testing nearly two weeks earlier, on January 14.

BioNTech R&D STUDY REPORT No. R-20-0072 is available here. The report is also referenced and discussed in an FDA submission on the preclinical study program that is available here. The below screenshot shows the study dates from p. 8 of the report.

In the book, Sahin claims furthermore that he only even became interested in the outbreak in Wuhan on January 24, after reading an article in the German weekly Der Spiegel (p. 4) and/or a submission to The Lancet (p. 6). But look again at the study dates above. BioNTech had already completed the first preclinical study for its Covid-19 vaccine the day before!

January 24, 2020 was a Friday. On Sahin’s account, he took the decision to launch his Covid-19 vaccine project over the weekend and unveiled his plans to his collaborators at BioNTech’s headquarters in Mainz, Germany on the following Monday: January 27 (ch. 2 passim and p. 42; see screencap below).

Sahin claims (p. 33) that it was at this January 27 meeting that he asked BioNTech’s animal testing team to prepare the preclinical program that was in fact already underway!

It should be noted that January 14, 2020, the start-date of the first preclinical study, was just two weeks after the first report of Covid-19 cases in Wuhan and just a day after the release of the full SARS-CoV-2 genome (drafts had been released previously).

BioNTech’s first preclinical study was evidently prepared before publication of the genome and in anticipation of it. As explained in the summary of the study (p. 6), its purpose was to test BioNTech mRNA formulated in lipid nanoparticles produced by the Canadian firm Acuitas. But the mRNA was here encoding a proxy antigen (luciferase), not the spike protein of SARS-CoV-2 that would later serve as the target antigen.

The study looked at both biodistribution and immune system activation. As the FDA submission on the preclinical program puts it, “Platform properties that support BNT162b2 were initially demonstrated with non-SARS-CoV-2 antigens” (2.4 NONCLINICAL OVERVIEW, p. 7).

In The Vaccine, which was written with the journalist Joe Miller, Sahin and Türeci talk about the need to obtain the Acuitas lipids, which, they say, were more suitable for intramuscular injection than BioNTech’s own in-house lipids. But, again, they postdate the matter. Thus, on p. 52, we read: “The missing piece was still Acuitas, who had not yet consented to the use of their lipids. Then, on the morning of Monday 3 February, [Acuitas CEO] Tom Madden offered his help.” But BioNTech was already running tests using the Acuitas lipids three weeks earlier!

Furthermore, BioNTech was not able to formulate its mRNA into the lipids itself, but depended on the Austrian company Polymun to do this for it. As noted in The Vaccine (p.51), Polymun’s facilities are an 8-hour drive from BioNTech’s headquarters in Mainz. In the book, Sahin and Türeci describe the first batch of mRNA for the vaccine tests proper being packed up and driven by car to Polymun outside Vienna: “A couple of days later, a small Styrofoam box containing frozen vials full of vaccine would be driven back over the border to BioNTech” (pp. 116-117).

But presumably this same back-and-forth had to have occurred with the mRNA encoding the luciferase. This means that as a practical matter “Project Lightspeed” must have gotten underway even earlier: at least several days before the January 14 start date of the study.

Why did Sahin and Türeci postdate the launch of their Covid-19 vaccine project in their book? Well, undoubtedly because the actual start date – and we do not know when exactly the actual start date was – would have seemed far too soon. Based on the above considerations, it must have been at the latest just days after the first December 31, 2019 report of Covid-19 cases in Wuhan.

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  • Robert Kogon

    Robert Kogon is a pen name for a widely-published financial journalist, a translator, and researcher working in Europe. Follow him at Twitter here. He writes at edv1694.substack.com.

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Alberta

Preston Manning picked to chair review of Alberta’s COVID response

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Premier Danielle Smith has struck a committee to investigate how the Alberta government responded to the COVID-19 pandemic and has appointed former Reform Party leader Preston Manning to chair it.

Smith, in a statement, says Manning and the panel will take feedback virtually from experts and the public, then issue a final report and recommendations by Nov. 15.

Manning is to pick the other panel members subject to approval by Smith.

The budget is $2 million, and Manning is to be paid $253,000.

Manning and Smith have been critical of government-imposed health restrictions such as masking, gathering rules and vaccine mandates during the pandemic.

Smith has questioned the efficacy of the methods and their long-term effects on household incomes, the economy and mental health.

She has criticized both Dr. Deena Hinshaw, the former chief medical officer of health, and the Alberta Health Services board for failing to provide good advice and help prepare for the pandemic, which she says forced the government to impose health restrictions and vaccine mandates.

Smith replaced Hinshaw and the board shortly after taking office in October.

The premier said Alberta needs to be ready for future health emergencies.

“There are valuable lessons we learned from the Alberta government’s response to the COVID-19 public health emergency,” Smith said in the statement Thursday.

“It’s important that we apply those lessons to strengthen our management of future public health crises, and the panel’s recommendations will be key in doing so.”

This report by The Canadian Press was first published Jan. 19, 2022.

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