The Accidental Utility of Vaccine Skepticism

Inciting critical discussions about anti-corruption in procurement

Over the last three weeks, we have been witnessing monumental events in our ostensibly perpetual history textbook chapter of COVID-19. Thousands of individuals have marched and occupied in major cities across the country – the longest being in Ottawa – to protest provincial and federal vaccine mandates.It must be acknowledged that many protestors, including some organizers, were actively engaged in harmful expression, including the waving of Nazi and Confederate flags, the uttering of racist remarks, and the blocking of first responders from their duties. I strongly condemn and abhor such actions. The focus of this article is specifically the mistrust about vaccines, and its role in evaluating anti-corruption policies regarding their procurement. While some have expressed displeasure at lockdowns and vaccine mandates despite acknowledging the need for a vaccine, others remain concerned about long-term side effects and the lack of transparency by federal and provincial governments about the considerations that went into the procurement process. 

Indeed, vaccines have been proven safe and effective, and are one of our most powerful tools in stemming the severest impacts of the pandemic. Moreover, the protest has, in many ways, now gone beyond the parameters of peaceful assembly, extending to illegal occupation causing the arrests of many organizers of the Freedom Convoy. While this will be an inquiry sought by scholars in the years to come, the concerns surrounding the safety and effectiveness of vaccines are themselves symptomatic of the need for additional attention towards anti-corruption law in the premarket and regulatory stages of vaccine development. Since evaluations of government legitimacy are predicated on the public trust, it is essential that citizens are provided with more information about the safeguards and pitfalls that characterize Canada’s anti-corruption apparatus, as it relates to the manufacturing, procurement, and distribution of our vaccines. 

Lobbying

Firstly, concerns can be traced to the fault lines within Canada’s Lobbying Act, specifically the considerable latitude it provides to in-house lobbyists. Per the Act, lobbying is defined as any written or oral communication with a public office holder concerning a government decision. However, the type of communication that constitutes lobbying depends on the nature of the organization. Consultant lobbyists, such as individuals at a firm, are required to register as lobbyists if they communicate with a public office holder regarding the development of legislation, bills, amendments, policies, and proposals; the awarding of grants or benefits; and the awarding of any contract. In-house lobbyists–which can include pharmaceutical companies–are subject to notably less restrictions and only having to register if a significant part of their duties goes into lobbying. Importantly, for corporations and organizations, registration is not required if they engage in discussions regarding the awarding of federal contracts. Since contract-related discussions do not fall within the definition of in-house lobbying, corporate employees who are former public office holders can utilize their connections and power in such communications without scrutiny–an ability not shared by consultant lobbyists, who cannot engage in contract-related government discussions if they held public office within the last five years.

The reduced restrictions of in-house lobbyists can allow companies to influence public officials through nepotism or prior connections in the government. In a public health crisis, the absence of fair market practices can translate into inflated prices, bypassing quality assurance measures, and the erosion of public trust in the safety and efficacy of a vaccine. By ensuring that the restrictions of in-house lobbyists are expanded to include discussions related to tender bids, public trust in the research and development, administration, and procurement of vaccines can be increased.

Conflicts of Interest

In addition to the loopholes in the Lobbying Act, there are concerns surrounding legislation aiming to prevent conflicts of interest in the procuring of vaccines. The urgency of needs in public emergencies like COVID-19 create opportunities for such conflicts due to the need for increased flexibility and speed in the process. Government officials can take advantage of the urgency by seeking kickbacks, and suppliers can attempt to leverage urgency by seeking prices for pharmaceutical products that are much higher than the market value. 

These concerns have been highlighted in the Conflict of Interest Act. Section 6(1) prohibits public office holders from making or participating in the making of a decision that would place them in a conflict of interest. Because the Conflict of Interest Act targets office holders who are influenced by family and other personal connections, it remedies the asymmetry between in-house and consultant lobbyists regarding contract-related discussions. However, its focus on actual, rather than perceived conflicts of interest does not effectively gain public trust. As seen in the 2020 WE Charity scandal, conflicts of interest that are implied, rather than expressly proven, may escape the ambit of the statute.  

Fortunately, these shortcomings have been recognized by the Canadian government in regards to the approval and procurement of vaccines. In September 2020, the COVID-19 Vaccine Task Force made the decision to publicize conflict of interest disclosures, whether real or perceived. This measure was taken in response to the increasing distrust of the vaccine, and aimed to provide transparency to Canadians about government interactions with pharmaceutical companies. Given the increased recognition that Canadians want to be informed about both real and perceived conflicts of interest, it is hoped that the Conflict of Interest Act will be amended to address these concerns. 

Procurement and Debarment

Finally, public confidence in the vaccine procurement process is largely reliant on existing debarment policies.Elizabeth Acorn, “Just a business decision? Debarment in public procurement in Canada and the United States,” (2021) 64:2 Canadian Public Administration 238 at 240. Canada’s current debarment framework is governed by the Ineligibility and Suspension Policy. The debarment policy ensures that companies that violate anti-corruption legislation – including the Lobbying Act and anti-kickback statutes – are disqualified from contracting with the federal government. This is aimed to deter malfeasant business conduct and promote public confidence, since the condemnation of unlawful acts sends a message to the public that corruption is, altogether, a deal breaker in public-private partnerships. Unlike the United States, where debarment may not be imposed if there is compelling need based on government interests, Canadian debarment policy is regarded as “mandatory”, subject to emergency and national security exceptions. Within the context of COVID-19 vaccine procurement decisions, this is not difficult to imagine; indeed, the need to ensure rapid access to life-saving technology may justify contracting with debarred companies, despite the concerns that would ordinarily surround their participation.  

The emergency exceptions of Canadian debarment policy have their own concerns during the COVID-19 pandemic. Given the increased skepticism about the legitimacy of emergency powers, as evidenced by ongoing protests and Parliamentary debates, the decision of the federal government to invoke any exceptions may run the contrary consequence of reducing public trust. One only needs to look as far as social media to see the outrage that often accompanies the use of emergency legislation. It will be interesting to see whether – and how – such concerns will be addressed within the debarment process. 

Conclusion

As seen, there are fault lines in Canadian legislation that run the risk of fostering corruption in government-pharmaceutical transactions. Although individuals who are against vaccines may not change their stance, the outrage in major cities since Saturday has been symptomatic of a widespread lack of trust in the government’s response to COVID-19. With amendments to anti-corruption policies that promote transparency and integrity in the procurement process, it is hoped that trust in the life-saving technology of COVID-19 vaccines can be increased.