How Omicron Changes The Legal Climate: A Window of Opportunity to Challenge The Legal Validity of Vaccine Certificates| 2nd Interview with James Cooper, Lawyer

January 26, 2022

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Returning to our show is James Cooper, a practicing lawyer in Ontario. His practice provides support for self-represented litigants primarily in creating affidavits and drafting pleadings. James returns with a fascinating view on the evolving legal playing field.

Summary of James’ Suggested Strategy to have the Courts Strike Down Vaccine Mandates:

With the recent surge in Omicron cases, lawyer James Cooper argues that vaccine certificates based on the extinct Wuhan strain dose no longer bear any rational connection with their initial stated objective – to serve as a reliable basis for determining who is at risk of spreading infection and who is not.

As a result, the legal landscape has changed considerably.  A small window of opportunity now exists to challenge the validity of the current vaccine certificates.  Mr. Cooper suggests that lawyers start coordinating strategy to file emergency applications for declaratory relief.

Lawyers should seek a judicial declaration that the current vaccine certificates are no longer fit to serve their purported purpose.

Under the current circumstances, it is doubtful whether the currently constituted vaccine certificates remain able to survive a Charter challenge based on an Oakes test analysis.   Confirmed vaccination status – as evidenced from the vaccine certificates – can no longer tell us who is truly immune from Omicron and who is not.

The current vaccination certificates can no longer be relied upon by employers and the public sector as a document evidencing immunity against the prospect of community infection spread If lawyers are able to obtain a judicial declaration along those lines,  then the whole discriminatory edifice upon which the current vaccination passport system rests may crumble.

There can no longer be any justifiable rationale to discriminate against the unvaccinated, many of whom have acquired full spectrum and lasting immunity by reason of prior covid infection.  By contrast, the efficacy of the Wuhan-strain vaccines are widely recognized as waning after several months, while having little to no effect against stopping the spread of Omicron.  In other words, we live in a reality where many of the unvaccinated are already immune to Omicron, while many of the vaccinated are not.

The continuing infringement of Charter rights can no longer be justified under this current reality.  Employers and administrators who have received notice of the changed circumstances – but who nevertheless continue to rely on the demonstrably flawed vaccination passport system – may be exposing themselves to enhanced legal liability.

Where the government purports to be concerned about immunity, it must be called upon in a judicial application to recognize natural immunity as a measure of immunity on par with vaccination at the very least.

In addition to an application for declaratory relief, lawyers should consider an application for a mandamus order that directs the government to create a system for recognizing natural immunity in the previously infected.

Until such time, the vaccination certificate system should effectively be deemed as unsuitable for its purposes and stricken down.

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