Challenges to Mandatory Vaccinations: Further Thoughts

• Author: Patricia Hughes
• Date: November 05, 2019

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...