Challenges to Mandatory Vaccinations: Further Thoughts

Just as the Toronto medical officer of health called for limiting the exemptions to Ontario’s mandatory vaccine regime for school children to only one, on medical grounds (although this has not been received positively by the provincial health minister), Vaccine Choice Canada and five mothers have challenged the requirement that in order to attend public school, children must receive vaccinations.

The Immunization of School Pupils Act already includes grounds for exemption for medical, religious and conscientious grounds; however, the group challenging the legislation consider the exemptions — and therefore the legislation — contravene their rights, in part because of the process required to obtain the exemptions.

According to a report on the site Life Site, the plaintiffs include a nurse whose three unvaccinated “healthy” children will not be able to attend school; an educational assistant with two children “whose mother chose not to have her brother and sister vaccinated after her children had several adverse reactions to vaccines”; a mother with five children, two of whom “’suffered severe reactions and injuries from vaccines resulting in her refusal to vaccinate the other children’”; a mother of two young children; and a mother with five unvaccinated children who has refused to sign the form required for an exemption.

Vaccine Choice Canada describes itself “as a public information and resource group committed to protecting children from the known risks of vaccines currently in use and those being developed for future use in Canada by providing information about the components of vaccines, side effects, and possible long-term health effects”.

The challenges are based on contraventions of the Canadian Charter of Rights and Freedoms, including freedom of religion and conscience (section 2(a)), freedom of speech (section 2(b)) and the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice (section 7). The mothers also argue that they are exposed to criminal liability because they must acknowledge that they know that a failure to have their children vaccinated is a risk to their children and the education session they are required to take violates their right to informed medical consent because it does not refer to the risks of vaccination.

I discussed mandatory vaccinations in an earlier Shaw post, based on a possible challenge to New Brunswick’s intention to eliminate the religious and conscience objections from its mandatory vaccination legislation; Bill 39 received first reading in June of this year. My post considered legislation in other jurisdictions, as well as the Ontario statute. Vaccine Choice Canada mounted a significant campaign in New Brunswick (see here and its submission on Bill 39, An Act Respecting Proof of Immunization, here). My post also referred to relevant jurisprudence on parental rights. I considered whether a challenge to the removal of the religious and personal belief objections would survive a section 1 analysis, concluding that it would.

In this post, while alluding to the other challenges the mothers and Vaccine Choice Canada have filed in Ontario, I focus primarily on their challenges based on compelled speech and the life, liberty and security of the person. I examine the challenges as reported in the National Post, the CBC and Vaccine Choice Canada’s press release about the lawsuit.

There is, of course, an important difference between the hypothetical challenge I discussed in my previous post and the actual challenges in Ontario. The former challenged the potential elimination of the religious and conscience exemptions contemplated by New Brunswick, while the latter are challenges both to the vaccination regime and to the exemptions available under that regime in Ontario.

In Ontario, the Immunization of School Pupils Act requires children to be vaccinated for several diseases in order to attend public school. (Children attending licensed daycare centres are also subject to the regime.) To claim a medical exemption, parents must obtain a medical certificate. Parents seeking a religious or conscientious objection exemption must attend a one-hour “immunization education session”, obtain a certificate that they have done so and complete a form. While unvaccinated children may attend school, they may be removed if there is an outbreak of a disease. The exemption form states as follows:

I understand that section 12 of the ISPA provides that the medical officer of health may order that the above named pupil be excluded from school if there is an outbreak or immediate risk of an outbreak of a designated disease in the school at which the pupil attends where one the following has not been received:

• A statement of immunization or other satisfactory evidence of immunization. Please note, immunity can take a period of time to develop and if immunized the student may continue to be excluded during that period.
• A statement of medical exemption stating that immunization is unnecessary because of evidence of immunity.

I consider first the challenge based on compelled speech. Vaccine Choice Canada frames this challenge as follows: “Violates the right against compelled speech, under s.2(b) of the Charter in being forced to sign, under oath, a Statement with which they disagree, and for which there is no conclusive proof, in being forced to acknowledge that to not vaccinate places their children at risk of physical injury or death.”

Section 2(b) of the Canadian Charter of Rights and Freedoms guarantees (subject to section 1 and to the override in section 33) the “fundamental” “freedom of thought, belief, opinion and expression, including freedom of the press and other media of communication”. While generally, section 2(b) protects the right to say what you want, it also protects the right to refuse to say something you do not want to say. Underlying section 2(b) are not only the relevance of free speech to democracy but also the broader search for the truth and individual self-actualization.

The Supreme Court of Canada sets out the test for determining whether speech is protected by section 2(b) as follows in Canadian Broadcasting Corp. v. Canada (Attorney General) (involving the open court principle and freedom of the press): “The court must first ask whether the activity falls within a sphere protected by freedom of expression, and if the answer is yes, it must then inquire into the purpose or effect of the government action in issue so as to determine whether freedom of expression has been restricted ….” (citation omitted) Freedom of expression is liberally defined to encompass all expressive activity:

“Expression” has both a content and a form, and the two can be inextricably connected. Activity is expressive if it attempts to convey meaning. That meaning is its content. Freedom of expression was entrenched in our Constitution and is guaranteed in the Quebec Charter [of Human Rights and Freedoms] so as to ensure that everyone can manifest their thoughts, opinions, beliefs, indeed all expressions of the heart and mind, however unpopular, distasteful or contrary to the mainstream. Such protection is, in the words of both the Canadian and Quebec Charters, “fundamental” because in a free, pluralistic and democratic society we prize a diversity of ideas and opinions for their inherent value both to the community and to the individual….

The content of expression can be conveyed through an infinite variety of forms of expression: for example, the written or spoken word, the arts, and even physical gestures or acts. While the guarantee of free expression protects all content of expression, certainly violence as a form of expression receives no such protection. (Irwin Toy Ltd. v. Quebec (Attorney General))

As the Canadian Broadcasting Corp. summarizes, there is a three-step process for determining whether speech is protected:

(1) Does the activity in question have expressive content, thereby bringing it, prima facie, within the scope of s. 2 (b) protection? (2) Is the activity excluded from that protection as a result of either the location or the method of expression? (3) If the activity is protected, does an infringement of the protected right result from either the purpose or the effect of the government action? (para. 38)

Section 2(b) also protects the right not to be compelled to say something with which one disagrees (National Bank of Canada v. Retail Clerks’ International Union et al). The Canada Labour Relations Board had held that the National Bank had engaged in anti-union animus in closing a unionized branch and merging it with a non-unionized branch and required the president to write a letter with specified content. The Supreme Court of Canada held that the letter was punitive and that, because of the Board’s requirements, the president could not explain that he had been required to write the letter with the contents with which he disagreed and he found humiliating. The Court held requiring the president to write the letter was

totalitarian and as such alien to the tradition of free nations like Canada, even for the repression of the most serious crimes. I cannot be persuaded that the Parliament of Canada intended to confer on the Canada Labour Relations Board the power to impose such extreme measures, even assuming that it could confer such a power bearing in mind the Canadian Charter of Rights and Freedoms, which guarantees freedom of thought, belief, opinion and expression. These freedoms guarantee to every person the right to express the opinions he may have: a fortiori they must prohibit compelling anyone to utter opinions that are not his own. (National Bank, p.296)

As stated by Vaccine Choice Canada’s press release, the mothers’ challenge about compelled speech is as follows:

Violates the right against compelled speech, under s.2(b) of the Charter in being forced to sign, under oath, a Statement with which they disagree, and for which there is no conclusive proof, in being forced to acknowledge that to not vaccinate places their children at risk of physical injury or death.

The Statement of Conscience or Religious Belief that parents seeking a religious or conscientious exemption from the mandatory vaccinations policy must sign includes the following:

Although not included in the Statement for an exemption, section 4 of the Immunization of School Pupils Act states, “Every person who contravenes section 3 is guilty of an offence and on conviction is liable to a fine of not more than $1,000.” Section 3 is the section that requires immunization and provides for the exemptions with their requirements.

The statements in the form, including the statement “With the decision to delay or refuse vaccines, you are accepting responsibility that you are putting your child’s health and even life at risk” do have expressive content: the risks they state in the gray box are the reasons that there is a mandatory vaccination regime. Most of the statements require at most passive reading; however, the statement about responsibility may be said to require positive action, in a sense the taking on of blame in the event of a particular outcome, although the consequences of doing so (other than the risks otherwise stated) are not identified. Given the broad protection offered speech, the second part of the test (the location or method of expression) would not exclude the statements, particularly the responsibility statement, from protection. With these statements, the government wants parents seeking non-medical exemptions to understand how serious their decision may be; but does this intention prevent those seeking the exemption from speaking out about what actually believe?

The mothers challenging the legislation do not agree with the risks set out in the Statement; however, they are not asked to say they agree with them — these risks are presented as information. The affidavit does not require them to say they agree. They are quite free to tell anyone that while they applied for the exemption, they disagree with the statements, including that they would take responsibility for anything happening to their children apparently for failing to get vaccinations.

The only thing they must agree to is that they have a genuine religious or conscientious conflict with the requirement to vaccine their children. Presumably, at least the latter does not pose a problem for them.

The form does not limit the mothers speech. Nothing in the form says they agree with the statements and overall, there is a strong argument that it does not infringe section 2(b) of the Charter. The one sentence that attracts agreement is the one about accepting responsibility and this may have to be justified under section 1 of the Charter.

It is significant that the government would be required to defend the religious or conscience exemption, not a failure to provide an exemption. The exemption seeks to provide a balance between requiring that public school children be vaccinated and acknowledging that some parents object to having their children vaccinated on religious or conscientious grounds. The government’s defence must recognize that there may come a time when it will eliminate the non-medical exemptions; in order to justify the current arrangement, it does not have to concede that it is perfect, but rather that under current circumstances, it meets the requirements of section 1.

Before addressing section 1, I consider the challenge based on section 7 of the Charter. The section 7 challenge relates to “depriving [the mothers] of the recognised constitutional right to make decisions over their physical and psychological integrity and autonomy” and interfering with parental rights. Section 7 is a two-stage right: the infringement of life, liberty and security of the person and if there is an infringement, the right not to be deprived of those rights except in accordance with the principles of fundamental justice. Only if any deprivation is not in accordance with the principles of fundamental justice is it necessary to move to section 1.

The two claims under section 7 are both related to parental rights. The mothers are not required to be vaccinated; they are required to vaccinate their children, if they want their children to attend public school unless they can claim a medical or religious or conscientious objection, fulfilling the requirements attached to each.

Section 7 raises the most direct tension between the claims by the mothers and Vaccine Choice Canada and claims of others, who are also entitled to life, liberty and security of the person. The vaccination regime exists to protect those rights by trying to ensure that the levels of vaccination are sufficiently high to protect those who are unable to vaccinated and who are particularly vulnerable to very negative effects of the diseases. In addition to the other potentially serious effects from measles, for example, as reported by the CBC, there have been recent studies indicating that the measles virus can compromise the body’s immune system and make people more vulnerable to other infections.

The liberty interest protects private choices and bodily and psychological integrity. It protects the right to make reasonable medical choices without being faced with criminal sanctions (R. v. Smith, in which the Court held that the limitation to dried marijuana for medical use contravened the liberty interest because it dictated the method of consumption, which had negative effects; furthermore, “by forcing a person to choose between a legal but inadequate treatment and an illegal but more effective choice, the law also infringes security of the person” [para. 18]). Parental rights are somewhat controversial, depending on the issue (B.(R). v. Children’s Aid Society of Metropolitan Toronto in which the Supreme Court held Jehovah’s Witness parents could not withhold blood transfusions from a minor child). In B.(R.), La Forest J.A., for the majority, stated,

s. 7 is implicated when the state, by resorting to the justice system, restricts an individual’s physical liberty in any circumstances. Section 7 is also implicated when the state restricts individuals’ security of the person by interfering with, or removing from them, control over their physical or mental integrity. Finally, s. 7 is implicated when the state, either directly or through its agents, restricts certain privileges or liberties by using the threat of punishment in cases of non-compliance. (pp. 365-366)

Justice La Forest noted, “the parental interest in bringing up, nurturing and caring for a child, including medical care and moral upbringing, is an individual interest of fundamental importance to our society.” (B.(R.), p. 371) However, the state can intervene when “necessary to safeguard the child’s autonomy or health”, as long as it is justified (B.(R.), p. 372).

The mothers may also argue that they have an obligation to act to protect their children’s life and security interests, which they believe are threatened because of the risks of vaccination and therefore not being able to do so may interfere with their psychological security as parents (New Brunswick (Minister of Health and Community Services) v. G. (J.), in which the Minister applied to extend a custody order for J.G.’s children; the removal of the children by the state constituted a serious infringement of J.G.’s psychological integrity and she was therefore entitled to legal aid).

The rights under section 7 must also be considered in the context of the impact of the exercise of liberty on others (B.(R.), p. 365). This is a major factor when considering the exercise of rights by an individual in relation to the vaccination regime.

Here the court must consider the scientific evidence that supports the vaccination regime and that supporting the mothers’ views that vaccines are dangerous. This is necessary at this stage, since the liberty interest may be limited when it negatively affects others, at least significantly. The mothers’ decision to exercise their parental rights might negatively affect not only their own children, but significantly the children of others (and possibly vulnerable people beyond that, since their unvaccinated children do not live their lives only in the schools they attend). The view that vaccinations are responsible for the notable decline in diseases such as measles, smallpox and others that older generations experienced as children, and that the lack of vaccinations in some places has increased the incidence of those diseases is widespread in the scientific and medical communities. It would be accepted by the court. It contrasts with the reasonableness of the belief that the negative effects are significant (while there are negative effects, they are rare and minimal, and according to the medical and scientific data are far outweighed by the positive effects). While the mothers believe their children’s health is at risk, the general view is that not only their children but other children, including their classmates and others, are less at risk if “herd immunity” is reached.

Thus the mothers have the right to bring their children up as they see fit up to the point it affects others (as La Forest J.A. quotes Wilson J., “John Stuart Mill described [liberty] as “‘pursuing our own good in our own way'”. This, he believed, we should be free to do “‘so long as we do not attempt to deprive others of theirs or impede their efforts to obtain it'”. (B.(R.), p. 365) On this analysis, there is not a contravention of section 7 on the basis of parental rights.

Without exhausting the discussion of section 7, even if there is an infringement of the rights to life, liberty and security of the person, it is necessary to determine whether that is contrary to the principles of fundamental justice. Mr. Justice La Forest explained in B.(R.), “The protection of a child’s right to life and to health, when it becomes necessary to do so, is a basic tenet of our legal system, and legislation to that end accords with the principles of fundamental justice, so long, of course, as it also meets the requirements of fair procedure.” (p. 374)

(I note that it has been held that the “best interests of the child”, employed in family law and in other contexts, is not a principle of fundamental justice (Canadian Foundation for Children, Youth and the Law v. Canada (Attorney General), holding that section 43 of the Criminal Code, permitting reasonable force against children by teachers and parents as a means of correction infringed children’s security of the person, but did not offend a principle of fundamental justice. However, this does not mean that the protection of a child’s right to life and health may not be in accordance with the principles of fundamental justice, as La Forest J.A. stated.)

Therefore, even if the scientific evidence is not considered relevant at the rights stage of section 7, it becomes relevant at the principles of fundamental justice stage. Furthermore, as a question of procedure, the government’s vaccination regime has conformed to the expected process in its imposition and, notably, at least under current circumstances, it does provide exemptions, medical and non-medical, that acknowledge that for a small number of people vaccinations can cause medical problems and that some parents object to them.

Assuming an infringement of section 2(b) (compelled speech) and section 7 (parental rights), I move now to the section 1 analysis. (Challenges based on other grounds may also result in the need to undertake a section 1 analysis, of course.)

Vaccine Choice Canada asserts that the mothers and it are “challenging the Constitutional Validity of the Immunization of School Pupils Act and Ontario’s compulsory vaccine regime, and the mandatory “education/information sessions”, and sworn Statement required, to obtain an exemption from a vaccine, failing which a child will be suspended, expelled, and/or not registered”. They are challenging the regime and the exemption.

The government is therefore required to justify the vaccination regime and the exemption as provided for under the statute and in the form religious and conscientious objectors must complete if they want the exemption. As the Supreme Court noted in Oakes, “It is important to observe at the outset that s. 1 has two functions: first, it constitutionally guarantees the rights and freedoms set out in the provisions which follow; and, second, it states explicitly the exclusive justificatory criteria (outside of s. 33 of the Constitution Act, 1982 ) against which limitations on those rights and freedoms must be measured.”

The vaccination regime, including the exemption, is prescribed by law (the Immunization of School Pupils Act and Regulation 645 under the Act. The regime is a pressing and substantial objective as shown by the history of the relevant diseases prior to vaccinations, the risks in not vaccinating and the need for herd immunity. The government can call on a great deal of evidence to support this first stage of the analysis, including the decline in mumps and measles after the introduction of vaccines, outbreaks elsewhere traceable to inadequate levels of vaccination, recent data showing concerning levels of non-vaccination at some alternative schools in Toronto (see CBC on this including an interactive map showing vaccination rates at schools across the city) and much else.

Is the regime a reasonable way to achieve the objective? Here the exemption comes into play; at the same time as the government relies on the exemption as a reason why the law is proportional to the objective, it must also explain why the exemption is justified in the form it exists. The limitation of freedom of speech is rationally connected to the objective because it is part of an exemption designed to protect Charter rights without undermining the objective of the vaccination regime, given the current circumstances.

Requiring objectors to complete a one-hour educational session and fill out the form is a minimal impairment of the right to free speech. Given the seriousness of the decision not to vaccinate their children, it is important that parents not wishing to vaccinate their children are at least exposed to some of the risks non-vaccination poses. At this point, the government would urge the court to take into account the importance of the objective as being relevant to health and the control of the diseases and therefore to be deferential to the government’s approach. The regime reflects the need to have as many people vaccinated as possible in order to protect others in society (here section 7 rights of others might be raised). Finally, at this stage, the benefits of protecting society outweigh the impact on freedom of speech, particularly given the fact the exemption exists.

The different stages of the section 1 analysis rely on the evidence about the impact of non-vaccination and the need for sufficient children to be vaccinated in order to provide “herd immunity” (something Vaccine Choice Canada denies exists), that the current arrangement satisfies that objective, that the requirement of completing the educational session and the form is a minimal interference with objections based on religion and conscience. The requirements associated with the exemptions mean that vaccinating public school children or not is not a choice without serious consideration. The mothers do not have to vaccinate their children, but they do have to take steps not to do so. Given the goal of “herd immunty”, these steps are reasonable. The vaccination regime’s benefits and the steps required to obtain exemptions outweigh the deleterious effects of the requirement placed on parents seeking exemptions.

Finally, assuming that the court finds that a section 2(b) infringement is not justified, it may be sufficient to remove the statement in the form requiring the mothers to accept responsibility. Claims under section 7 relating to parental rights are properly outweighed by the state’s commitment to maintain the health of other children (and vulnerable adults) through the vaccination regime.

However, it is highly unlikely that a court would strike down the vaccination regime as a whole. Whatever restrictions it may place on objectors, they are significantly outweighed by the benefits of the regime, as shown by global and local trends.

One final point arising from the need to defend the exemption. Some jurisdictions have eliminated the religious and personal belief exemptions (for example, New York State, which requires vaccinations for children attending public, private and religious schools, pre-K and day care and California, which also requires vaccinations for children attending private or public child care centers, preschools, elementary schools and secondary schools, and which is considering tightening the medical exemption).

(I note according to a report in the Los Angeles Times, “Californians strongly support a state law creating new oversight of vaccine medical exemptions for schoolchildren in a statewide poll released Monday, with backing across a spectrum of political affiliations, income and education levels, and geography.”) (For more information on the US situation, see here.)

While the current government has stated that it has no intention to change the current regime in Ontario, a risk in loosening those requirements to respond to a negative court decision could result in more parents claiming them and ultimately in the need to eliminate them. In addition, changed circumstances — increases in the diseases for which vaccinations are given — could justify removing the exemption for religious and conscientious grounds. It is important, therefore, while the government may be required to justify the exemption (if a court finds infringements of the Charter), it do so in a way that preserves the right to argue that even without the religous and conscientious exemption, the vaccination regime is constitutional.