“The right to determine what shall or shall not, be done with one’s own body, and to be free from non-consensual medical treatment, is a right deeply rooted in our common law. This right underlies the doctrine of informed consent. With very limited exceptions, every person’s body is considered inviolate, and, accordingly, every competent adult has the right to be free from unwanted medical treatment”
- Ontario Court of Appeal decision 1991, Fleming v. Reid
More than 100 years of science shows that vaccines are an effective way of controlling diseases. Since 1796, human beings have been using vaccines to control any number of diseases. For in 1796, a country doctor living in Berkeley, Gloucestershire, England named Edward Jenner developed the world’s first vaccination. That vaccination was for cowpox and, to a lesser extent, smallpox.
Since their creation, though, vaccinations have been the cause of many social concerns and apprehensions that have led to much public policy debate and anxiety. Some of these fears of inoculating agents are deep-seated and some of the fear is merited. Quebec, for example, has a no-fault compensation plan. Started in 1986, it was an outcome of one’s person poor outcome with the process. Her name was Nathalie Lapierre. After she received her shot, she developed viral encephalitis that lead to severe and permanent disabilities.
Therefore, I was not surprised when someone on Twitter questioned my opinion that mandatory vaccination is the best public policy approach when it comes to the issue. However, I was surprised that someone questioned the constitutionality of such an approach. Accordingly, I spent the last number of days putting my thoughts to paper; and this is the outcome.
Firstly, let us start with some facts. Today, the Canadian Pediatric Society estimates that of the 400,000 or so children immunized each year in Canada, five will suffer some permanent injury. Now compare that to the days before regular vaccination. Polio alone was common in Europe, the United States and Canada. According to the CDC, “Polio was one of the most dreaded childhood diseases of the 20th century in the United States. Periodic epidemics occurred since the late 19th century and they increase in size and frequency in the late 1940s and early 1950s.”
Now to understand the context, we have to understand that for many people, Polio was a minor nuance. 72% of infected people didn’t feel any symptoms, while about 24% of those infected persons had minor symptoms such as fever, sore throat, upset stomach, or flu-like symptoms and have no paralysis or other serious symptoms. While, about 1-5% developed some stiffness in the back, legs or abnormal sensations for 2 -10 days.
The problem was in less than 1% of the cases paralysis resulted; while in 5-10% of those having paralysis the result was death. Before the vaccine, in the US, on average 35,000 paralytic polio cases were diagnosed every year. The CDC notes that after the “introduction of Salk inactivated poliovirus vaccine (IPV) in 1955, the number of cases rapidly declined to under 2,500 cases in 1957. By 1965, only 61 cases of paralytic polio were reported.”
The same thing happened elsewhere in the world. In 1955, more than 76,000 cases of paralytic polio were reported in Canada, the U.S., the former Soviet Union, Western Europe, Australia and New Zealand, but by the 1960’s, Polio was yesterday’s news. Vaccine Programmes have been so successful that Polio only continues to be a problem in two countries: Afghanistan and Pakistan.
With rates of harm which vary between 1 in 40,000 (i.e. the rate of thrombocytopenia related to measles-mumps-rubella vacation) to 1 serious event per millions doses (i.e. Guillain-Barre Syndrome related to the influenza vaccine), one can see that vaccines are generally the safest and most effective form of treatment. Nor is it a surprise that the Canadian Pediatric Society estimates that of the 400,000 or so children immunized each year in Canada, five will suffer some permanent injury. While some in our society might forget that vaccines have put an end to the scourge of many diseases, the history is there to be studied.
So in acknowledgement of the History and the Facts, let’s talk about whether the Supreme Court of Canada would allow for the mandatory vaccination of Canadians and/or Canadian Children. I think they would and one can see the evidence for this point of view in looking at a recent case: A.C v Manitoba (Director of Child and Family Services) 2009. In that case, the Supreme Court of Canada declared that a child under 16 years of age might have the right to refuse blood transfusions because her religion requires it. The Majority noted that the granting of these rights depends largely on “adolescent’s maturity”. The court noted that while the “statutory scheme strikes a constitutional balance between what the law has consistently seen as an individual’s fundamental right to autonomous decision making in connection with his or her body, and the law’s equally persistent attempts to protect vulnerable children from harm”, the act of forcing “an unwanted blood transfusion violates the fundamental value of protecting bodily integrity from state interference”.
To some this might mean the death to a mandatory vaccine policy. For if the Manitoba’s Director of Child and Family Services was in the wrong for making a child ward of the state – against the will of Parents’ and Child – to force an unwanted medical procedure, surely the Court would say that any vaccination would be against the Canadian Charter of Rights and Freedoms? If you believed that, you would be wrong.
Since that 2009 decision, we have seen a number of decisions which would tend to lead one to believe that Canadian Justices tend to allow Canadian Governments to use Section One of the Charter to allow Governments to override Sections 2 and 7 through 15. Or put differently, most of our rights of conscience and those against discrimination are granted if the Government can prove that their legislation is “reasonable” and is “demonstrably justified in a free and democratic society”. In other words, the Supreme Court has found that while age discrimination violates the Charter of Rights and Freedoms, Governments might have reasonable reasons to limit certain activities by age. Driving, alcohol consumption and voting are just a few of the activities which are limited.
Given that Section 7 of our Charter requires Canadian Governments to protect a citizen’s “right to life, liberty, and security of the person”, one could say that Canadians expect Governments to stop epidemics and pandemics. If that is the case, one could say it is reasonable to force every Canadian to be vaccinated even if it violates one’s Section Two conscience rights.
For example, someone with a communicable disease could do just as much harm as someone with a gun. Typhoid Mary famously put people at risk by not being isolated or responsible with her communicable disease. She is just one example of a person who would willingly put people at risk to satisfy their own ends. This is why our society developed isolation or containment wards in hospitals and health care facilities. This is why to this day, Canada Public Health and Canadian Border Services run and maintain Quarantine Facilities and Quarantine Officers under the authority of the Quarantine Act. That is why Provinces have Medical Officers of Health who can act as peace officers, issue warrants and sometimes even court orders. (Flu surge could see provinces put new powers to use, by Chinta Pulxey, Published by Globe and Mail.com, Aug. 23, 2012)
While Medical Officers of Health “always try and balance individual rights versus the public good”, it is also true that some Medical Officers have the power to curb our rights by limiting gatherings, closing down schools or, in the case of BC, ordering vaccinations. Legislation has recognized this odd relationship: one can be in favour of one’s democratic right to medical consent and also be in favour of mandatory vaccination.
For in a free and fair democracy, we all acknowledge that rights are not perfect nor absolute. Just as I cannot yell “fire” in a movie theatre, Albertans and Canadians realize that our rights are limited by the others who live around us. To quote the Constitution, we all recognize that we want “peace, order and good government” and the right to “life, liberty and security of person”, while also having the ability to live our life free of government interference. This is the balance we desire.
Consequently, the ability to drive or hold a gun is limited. As long as you prove that you won’t do serious harm to other Canadians you are allowed to drive and own a gun, if you desire. However, those rights are not absolute. For, Canadians want to be protected from predictable and likely roguish behaviour. As such, the Supreme Court is as consistent today as when it made its decision in the case of Lapierre v. A.G. (Quebec) 1985.
We have seen this in MJT v DMD: a case where the court sided with a father who wished his child to be vaccinated. We can see when Arbitrator Robert Diebolt found in favour of a mandatory vaccination programme for doctors and nurses in Health Employers Association of British Columbia v. Health Services Association of British Columbia (2013). While it is true that another arbitrator ruled against such a ban in Ontario, most critics seem to agree that the evidence put forward in the BC case was of a higher standard. Furthermore, one can see that the mandatory vaccination requirements – coupled with reasonable conscience protections – have stood up to many legal questions.
Consequently, I am quite confident in saying that history, science and evidence say that mandatory vaccination is the best answer for preventing deaths and the Courts will likely say that not only would such legislation be legal, it would also be Constitutional.