I sent the email below to James, but probably should have sent it to the whole group...
From: David Macalister
Sent: August 9, 2021 8:04 PM
To: James Fleming
Subject: Re: on another point: : Without mandatory vaccines, more campus shutdowns are inevitable
James,
I'm not a pubic health law expert, but I do know that each province, including BC has a Public Health Act (or something similar, but perhaps called something else), that grants extraordinary powers to public health officials to deal with communicable diseases.
All of our rights under the Charter of Rights and Freedoms are subject to reasonable limits "prescribed by law". I have no doubt that the restrictions on our movements and the issuance of rules governing numbers of people congregating and orders pertaining
to mandatory mask wearing indoors are a result of the exercise of the powers granted to public health officials under our Public Health Act and its Regulations. I am confident the courts would uphold the legitimacy of such restrictions on our Charter Rights
during a raging pandemic.
Also note , the Supreme Court of Canada has determined that universities are not governmental entities (see the Supreme Court's decision in McKinney v University of Guelph, [1990] 3 SCR 229). As such, they are not bound by Charter restrictions. If they can
find the authority to issue mask/vaccine mandates, they don't need to worry about whether they are violating Charter rights, because the Charter does not (generally) restrict the actions of universities.
Best,
David
David MacAlister, MA, JD, LLM
Director and Associate Professor | Criminology
Vice President, Western Society of Criminology
Secretary-Treasurer, International Centre for Criminal Law Reform & Criminal Justice Policy
Simon Fraser University | Saywell Hall 10134
8888 University Drive Burnaby BC V5A1S6
T. 778.782.3019 | sfu.ca/criminology
From: James Fleming <james_fleming@sfu.ca>
Sent: August 9, 2021 6:50 PM
To: Christopher Pavsek; academic-discussion@sfu.ca
Subject: Re: on another point: : Without mandatory vaccines, more campus shutdowns are inevitable
A legal question (with preamble). Over the last 18 months, our society has broadly accepted restrictions on basic rights (notably of free movement, and association) that have, quite clearly, been constitutionally extraordinary. We have, I think, tacitly
agreed that desperate times have called for desperate measures. To be sure, it has been disturbing that governments at both national and sub-national levels have temporarily suspended constitutionally-guaranteed freedoms *without,* as far as I am aware, any
attempt to articulate a legislative basis for so doing. (Compare the War Measures Act in October 1970.) Nonetheless, they probably could have, if they had wanted to. Which is to say that the restrictions were legal, if they were, only and precisely because
they were imposed by government.
Is it possible that a sub-governmental institution, such as a university, could legally impose, on its own authority, restrictions of constitutionally-guaranteed freedoms?
I struggle to see how.
JD Fleming
James Dougal Fleming
Professor, Department of English
Simon Fraser University
Burnaby/Vancouver,
British Columbia,
Canada.
A grateful mind / By owing owes not
-- Paradise Lost
From: Christopher Pavsek <cpavsek@sfu.ca>
Sent: August 9, 2021 2:39:22 PM
To: academic-discussion@sfu.ca
Subject: Re: on another point: : Without mandatory vaccines, more campus shutdowns are inevitable
Hi All—I thought I’d share this. UBC’s fac. association has taken this stance:
https://www.facultyassociation.ubc.ca/member_notice/message-president-update/
The salient point, in Rumsfeldian language: “In light of the known knowns, known unknowns, and the unknown unknowns, and in the absence of any risk analysis brought forward by the University, we now believe that a robustly precautionary approach
is most appropriate. We therefore call upon UBC to adopt an indoor mask mandate in all its spaces and a vaccine mandate for all its employees and students (subject to the normal legal exemptions) in advance of the September reopening. This course of action
will not only do the most to alleviate well-founded anxiety but will also allow the most secure planning of teaching and research activities.”
So it would seem that pressure around this issue in the province continues to rise.
On Aug 4, 2021, at 2:25 PM, Martin Hahn <mhahn@sfu.ca> wrote:
That line: " you protect yourself by getting vaccinated" drives me bats! It shows such a profound misunderstanding of what vaccines are for in an epidemic.
How short is our memory? When Covid vaccines were being developed, epidemiologists were saying that anything over 60% effective would be really good. Why? For personal protection from disease, that is not much better than a coin-toss.
But it is enough to do what vaccines really need to do: bring down the R0 - the rate of transmission
Protecting your kid from measles is not the main reason to get them vaxxed, it's to stop the spread of an incredibly contagious disease which, like polio before it, does not have a devastating effect on most people who get it, but
is deadly to enough that letting it spread would be disastrous.
With Covid getting more transmissible, the percentage of fully vaccinated population needed to bring it under control keeps going up. Canada has some of the highest vaccination rates in the world. But it is not enough.
Making vaccines mandatory is probably too draconian, but the interim measure is to make the life of the unvaccinated not as free as of those who get the shot. Want to go to a cafe? Work at a certain company? Go to university?
Get vaccinated. Even Andrew Coyne, surely
a man with stellar libertarian credentials, thinks that is the way to go. US universities and companies are going that way and so are European countries.
But BC universities? Well, they are currently behind in their understanding, and more afraid of public backlash, not just than US universities and European governments. We have now fallen behind poultry processors in Arkansas!
Embarrassing.
Martin
On 8/4/2021 12:51 PM, Lyn Bartram wrote:
I asked a question in senate about the weakness of the plan, and the answer was “ you protect yourself by getting vaccinated”. But of course this is not the only answer - you protect others by getting vaccinated. I agree with universal masking. It may be the
only achievable solution - except for residences. And a number of schools are already mandating it. It’s the least e should do.
Sent from my iPad
Can I offer the simplicity of universal masking? The US CDC and others are back on that plate for medium term solutions.
Yes, something to work around in the context of lecturing, etc. but a few "Madonna" microphones (a mere $70 at your local London Drugs) could go some distance to mitigating the muffling. Masking would also provide a substantial degree of safety
in small group activities.
Even with the small "break through" rate of fully vaccinate people, our students' age cohort are at very high risk because they tend not to realize they are sick unless they're very sick, and then they afraid to affect their grades by taking a day
at home. Also given the relatively high number of our students who have their own (unvaccinated, off at day care) kiddies, I am really, really nervous about the kid-young adult vectors putting (grannie-aged) me in harms way.
I, too, wish I had confidence in our ventilation systems. But given that Dr. Bonnie and Health Canada denied that coronaviruses are airborne for a very very long time, all of our Universities are way behind
any possibility of mitigating that aspect of the problem.
In long, we're far from out of the woods.
From: Bernhard Riecke <ber1@sfu.ca>
Sent: August 4, 2021 8:22:13 AM
To: Sam Black; Behraad Bahreyni; Lyn Bartram; Baharak Yousefi
Cc: Christopher Pavsek; academic-discussion@sfu.ca
Subject: Re: on another point: : Without mandatory vaccines, more campus shutdowns are inevitable
An increasing amount of universities in Canada and beyond are requiring vaccinations (at least when living in dorms), e.g., https://nationalpost.com/news/canada/universities-grappling-with-whether-to-require-mandatory-vaccines-for-students & https://www.fierceeducation.com/best-practices/many-universities-requiring-students-to-get-vaccinated
so it can't be completely impossible. It's indeed a tricky balance between "personal freedom" and "safety", but certainly worth pushing for a safe work environment (I'm already thinking of bringing my own HEPA air purifier to lectures to protect students and
myself... something that imho SFU should more seriously consider providing)
cheers
Bernhard
On 2021-08-03 15:24, Sam Black wrote:
I too was puzzled by the response Chris received,
"there
is no requirement for
proof of immunization under the University Act, making it impossible for the university to
establish such a mandate"
For the record, there is a requirement for proof of immunization -- but not for covid immunization -- for incoming students in many Canadian Medical
schools, including UBC and the University of Ottawa:
http://www.calendar.ubc.ca/vancouver/index.cfm?tree=12,209,374,340
https://med.uottawa.ca/undergraduate/immunization-requirements
The University Act neither requires, nor prohibits schools from demanding proof of immunization. Under the University Act it is permitted for schools to demand proof of immunization: as UBC's Medical School has done. So I believe that the question of
whether SFU should demand proof of immunization for covid should be debated on its merits by the SFU community. I very much doubt that debate is pre-empted by the jurisdictional argument Chris was given.
Best,
Sam
Sam Black
Assoc. Prof. Philosophy, SFU
I respectfully acknowledge that SFU is on the unceded ancestral and traditional territories of the səl̓ilw̓ətaʔɬ (Tsleil-Waututh), Sḵwx̱wú7mesh
Úxwumixw (Squamish), xʷməθkʷəy̓əm (Musqueam) and kʷikʷəƛ̓əm (Kwikwetlem) Nations.
From: Behraad Bahreyni <bba19@sfu.ca>
Sent: August 3, 2021 2:27:59 PM
To: Lyn Bartram; Baharak Yousefi
Cc: Christopher Pavsek; academic-discussion@sfu.ca
Subject: RE: on another point: : Without mandatory vaccines, more campus shutdowns are inevitable
Here is another article on the same subject:
__________________
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Behraad Bahreyni, PhD, PEng
Associate Professor, School of Mechatronic Systems Engineering
Associate Member, School of Engineering Science
SFU Simon Fraser University
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Surrey campus: MSE 4176, 250-13450 102nd Ave, Surrey, BC, CANADA V3T 0A3
Burnaby campus: ASB 8855, 8888 University Dr, Burnaby, BC, CANADA V5A 1S6
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I think there is a lot of bafflegab here. We know other Canadian universities are requiring more stringent ,measures. And I foresee a lawsuit where someone pits the safe workplace requirement against being made to go back to campus.
Hi Chris,
Thanks very much for following up on this and sharing the information with us.
What the Covid-19 Response Team at SFU is saying re the impossibility of a mandate seems to contradict what Dr. Henry said on July 27th:
“ . . . And universities are looking at what are the measures they need to take in their setting to make it as safe as possible . . . that may mean if you’re
living in residence that you need to have proof of immunization.”
https://www.youtube.com/watch?v=It1afVleAqA
Part about post sec is at about 42:12 to 43:12.
Baharak Yousefi (she/her)
Librarian for History, International Studies, Graduate Liberal Studies, & Political Science
Belzberg Library | Simon Fraser University | 515
West Hastings Street, Vancouver, B.C. V6B 1G4
Occupied Xʷməθkwəy̓əm (Musqueam), Skwxwú7mesh (Squamish)
& Səl̓ílwətaɬ (Tsleil-Waututh) Territories |
#LandBack
From: Christopher Pavsek <cpavsek@sfu.ca>
Sent: August 3, 2021 1:54 PM
To: Baharak Yousefi
Cc: academic-discussion@sfu.ca
Subject: Re: on another point: : Without mandatory vaccines, more campus shutdowns are inevitable
Hello--I was curious about this and queried the president's office/VPA. I specifically asked if the University or the Province had made the decision to forego a vaccine mandate.
I got a response from the Covid-19 Response Team at SFU.
"Regarding mandatory vaccinations, there is no requirement for proof of immunization under the University Act, making it impossible for the university to establish such a mandate, which would also be difficult to enforce.
There are no universities in British Columbia currently requiring proof of immunization. All post-secondary institutions continue to monitor the advice of the province and will take the Provincial Health Officer’s direction on this."
My reading of this is that the university could mandate more than the province is recommending--masks, or distancing, or other measures perhaps?--but not vaccines.
I thought this might clarify things a bit.
My understanding is that yesterday Dr. Henry said it is up to each university/college to set their standards above and beyond provincial health orders.
Baharak Yousefi (she/her)
Librarian for History, International Studies, Graduate Liberal Studies, & Political Science
Belzberg Library | Simon Fraser University | 515
West Hastings Street, Vancouver,
B.C. V6B 1G4
Occupied Xʷməθkwəy̓əm (Musqueam), Skwxwú7mesh (Squamish)
& Səl̓ílwətaɬ (Tsleil-Waututh) Territories | #LandBack
Regarding frustration with the university's lack of a vaccine requirement: my understanding, which might be incorrect, is that SFU must follow provincial direction on any vaccine mandate. That direction comes from the Ministry
of Health and the Min. of Adv. Education, or whatever it's called these days.
So if faculty and staff want to pressure the university to implement a vaccine requirement, pressure would have to be applied to the university and to the relevant levels of government.
Such requirements are common in the US.
On Jul 29, 2021, at 10:46 AM, Lyn Bartram <lyn@sfu.ca> wrote:
Dr. Lyn Bartram
Professor, School of Interactive Arts and Technology
Director, Vancouver Institute of Visual Analytics
Simon Fraser University | SRYC
250 – 13450 102nd Avenue, Surrey, B.C. V3T 0A3
v 778 782 7439 f 778 782 9422 m 604 908 9954
<OutlookEmoji-15753042296078dab3b27-0b5a-41a0-b6d6-ebe6e14c0dc9.png>
**************************************
Christopher Pavsek, Ph.D., MRM-Planning
Associate Professor of Film
Simon Fraser University
149 West Hastings Street
Vancouver, BC V6B 1H4
Canada
cpavsek@sfu.ca
I respectfully acknowledge that I work on the unceded traditional territories of the Coast Salish peoples of the Musqueam, Squamish, and Tsleil-Waututh Nations.
**************************************
Christopher Pavsek, Ph.D., MRM-Planning
Associate Professor of Film
Simon Fraser University
149 West Hastings Street
Vancouver, BC V6B 1H4
Canada
cpavsek@sfu.ca
I respectfully acknowledge that I work on the unceded traditional territories of the Coast Salish peoples of the Musqueam, Squamish, and Tsleil-Waututh Nations.
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