On May 13, 2016, VCC sent the following three letters to the Health Board of a local Public Health office, to the Minister of Health for Ontario, and to the Public Health Ontario Board of Directors. The letters concern what appears to us to be a serious and unacceptable breach of two Ontario laws and of certain guaranteed Charter rights and freedoms.
By email and Canada Post
Friday, May 13, 2016
Hasting Prince Edward Board of Health Directors
c/o Board Chair, Terry McGuigan
179 North Park Street
Belleville, ON K8P 4P1
Dear Chair McGuigan,
It has been brought to our attention by a parent in your community that the recently issued Orders for Suspension from Attendance at School from the Medical Officer of Health of Hasting Prince Edward Public Health are in violation of both the Immunization of School Pupils Act (ISPA) and the Health Care Consent Act. Further the suspension letters breach the Canadian Charter of Rights and Freedoms, Sections 2, 7 and 15 at a minimum.
Specifically, the Order for Suspension states the following:
PLEASE NOTE THAT THIS ORDER WILL BE RESCINDED UPON RECEIPT OF 1(A) OR 1(B) OR 1(C) AS INDICATED BELOW.
In the Order,
However, the letter does not state that 1(D) “A statement of conscience or religious belief” exemption affidavit (also “indicated below” in the Order) is acceptable to rescind the Order. In fact, it appears to exclude this option. It is this omission that breeches the laws mentioned above for the following reasons.
The Immunization of School Pupils Act (ISPA) specifically allows for personal belief exemptions to the prescribed program of immunizations:
“(3) Subsection (1) does not apply to a parent who has filed a statement of conscience or religious belief with the proper medical officer of health. R.S.O. 1990, c. I.1, s. 3 (3).”
The Medical Officer of Health cannot decide he will not accept or enforce this section of ISPA. Yet that is what the Suspension Order states.
The Health Care Consent Act defines the Elements of Consent in Section 11(1) as follows:
“11. (1) The following are the elements required for consent to treatment:
1996, c. 2, Sched. A, s. 11 (1).”
It is obvious that the Medical Officer of Health is not upholding the legal requirements of informed consent in his Order of Suspension. A parent who does not consent to vaccination for reasons of religious belief or personal conscience is not granted the right to voluntary consent to the Order as their exemption option is excluded. Further the Order misrepresents the rights of parents and students under ISPA and thus forces consent to vaccination “through misrepresentation or fraud”.
As to the Canadian Charter of Rights and Freedoms, all levels of government are required to conform to the Charter. The Charter was put in place to oversee the actions of government with regard to certain rights and freedoms. In the case of the Suspension Orders the following sections are breached:
Section 2 Fundamental Freedoms:
“Everyone has the following fundamental freedoms: (a) freedom of conscience and religion…”
Section 7 Legal Rights (in this case “security of the person”):
“Everyone has 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 15 Equality Rights
“Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination…”
The Suspension Orders deny the fundamental freedom of conscience and religion to parents who hold sincere beliefs regarding exemption to vaccinations. The Suspension Orders deny the legal right to “security of the person” by forcing vaccination on children who do not qualify for medical exemptions as the only remedy to rescind a legal action (the Order). The Orders discriminate against parents who do not consent to vaccinations for their children by not providing equal protection and equal benefit of both ISPA and the Health Care Consent Act.
As outlined above, the Suspension Orders represent a serious breach of both provincial law and federal law. As the governing body of Hastings Prince Edward Public Health, it is the Health Board’s responsibility to address the shortcoming in the Suspension Orders that were issued to parents in your region and ensure that the Medical Officer of Health follows the requirements of ISPA and accepts personal belief exemptions as fulfilling the requirements for rescinding an Order for Suspension from Attendance at School.
To remedy these egregious breaches of the law, The Health Board must notify all parents who received the unlawful Suspension Orders of their actual rights and freedoms under the law by issuing corrected Suspension Orders.
We see that included in the Health Board’s Feb. 3, 2016 meeting agenda package is a presentation from Hasting Prince Edwards Public Health titled Immunization of School Pupils Status Update. This presentation clearly states the status of personal belief exemptions under the ISPA. Slides 4 and 5 offer the following information:
Exemptions
Even though immunization is mandatory in Ontario, some children may be exempted under the following circumstances:
- appropriate medical reasons;
- religious or conscientious reasons.
Suspension from School
The legislation permits a Medical Officer of Health to order the suspension from school of any student who has failed to become immunized and is not exempt.
Yet the Suspension Orders do not reflect this information to parents in your health region.
We request a response from the Health Board to our concerns and a delineation of actions taken to repair the breeches of law in this matter.
Also note that we are forwarding a copy of this letter with a cover letters to the Minister of Health and Long Term Care and to the Chairman of the Board of Public Health Ontario. As the Ministry is the main funder of Hastings Prince Edward Public Health, they are also responsible for and should be aware of actions taken by your Medical Health Officer. Public Health Ontario should also be made aware of these breaches of law.
Signed:
Nelle Maxey, Secretary/Treasurer of Vaccine Choice Canada
On behalf of the Vaccine Choice Canada Board of Directors
Attachment: Scanned copy of first page of the HPEPH Suspension Order
View a PDF of the above letter here.
View the response from Dr. Richard Schabas, Medical Officer of Health Hastings Prince Edward Public Health (PDF)
by email and Canada Post
Friday, May 13, 2016
Hon Eric Hoskins, MPP
Ministry of Health and Long-Term Care
10th Floor, Hepburn Block
80 Grosvenor Street
Toronto, Ontario M7A 2C4
Dear Minister of Health Hoskins,
It has come to our attention that recently issued Orders for Suspension from Attendance at School from the Medical Officer of Health at Hastings Prince Edward Public Health are in violation of Ontario’s Immunization of School Pupils Act (ISPA) and the Health Care Consent Act. Further the Suspension Orders breach the Canadian Charter of Rights and Freedoms, Sections 2, 7 and 15 at a minimum. Such breaches of federal and provincial law are unacceptable.
We have attached for your consideration a copy of the letter we sent to the Board of Health for Hastings Prince Edward Region. This letter includes a scanned copy of the first page of the Order for Suspension where the Medical Health Officer omits his receipt of personal belief exemption affidavits as valid documents to rescind the Suspension Order. The letter contains all the details of why the Suspension Order constitutes an illegal action.
As the Ministry is the major funder of regional public health offices (75% in the case of Hastings Prince Edwards Public Health), your Ministry bears responsibility for the actions of these regional offices. Of particular note in this regard are certain court precedents. We note two here.
In Blencoe vs. British Columbia (Human Rights Commission), the BC Supreme Court found that actions of administrators of entities that are not technically “controlled” by government, but whose powers arise from government legislation are carrying out actions relegated to them by government and thus such actions fall under the Charter of Rights and Freedoms. In the case of the actions of regional health offices, they are empowered by provincial legislation, namely the Health Protection and Promotion Act. So your oversight responsibility is clear from both a funding and a legislative standpoint.
Also relevant are the judgments of Chief Justice Joseph Lamer of the Supreme Court of Canada (Nelles v. Ontario (1989), 60 D.L.R. (4th) 609 (S.C.C.) where the court found that a statutory enactment cannot stand in the way of a constitutional entitlement. Justice Lamer’s reasoning was that Section 32(1)(b) of the Charter provides that the Charter applies to the legislature and government of each province. The remedy section of the Charter would be emasculated if the provincial government, as one of the very powers the Charter seeks to control, could declare itself immune. Thus, the Immunization of School Pupils Act cannot remove the Constitutional Rights of the Charter. This is of course why the personal belief exemptions are included in the ISPA. And why the Orders for Suspension as issued are illegal.
Considering the serious beach of law in the Orders for Suspension, it would behoove the Ministry to inquire whether all 36 of the Regional Health Districts in Ontario issued Orders for Suspension with the same language as those issued by Hasting Prince Edward Public Health.
We believe this is likely the case as both the Ministry and Ontario Public Health would want consistency in the wording of the issued Orders. If this proves to be case, then the egregious breaches of provincial and federal law must be remedied by re-issuing legal Orders for Suspension that would necessarily include the stated option of acceptance of personal belief exemption affidavits for the Orders to be rescinded.
We request that the Ministry respond to our concerns in writing and outline the actions taken to ascertain whether all 36 Regional Health Offices issued similar illegal Orders as well as the actions taken to remedy this situation.
Signed:
Nelle Maxey Secretary Treasurer of Vaccine Choice Canada
On behalf of the Board of Directors
1 Attachment: Letter to the Hastings Prince Edward Board of Health
View a PDF of the above letter here.
View the response from the MOHLTC on behalf of Minister Hoskins (PDF).
By email and Canada Post
Friday May 13, 2016
Mr. Pierre Richard,
Chair of Public Health Ontario Board of Directors
Public Health Ontario
Suite 300
480 University Avenue
Toronto, Ontario M5G 1V2
Dear Chair Pierre Richard,
It has come to our attention that recently issued Orders for Suspension from Attendance at School from the Medical Officer of Health of Hastings Prince Edward Public Health are in violation of Ontario’s Immunization of School Pupils Act (ISPA) and Health Care Consent Act. Further the suspension letters breach the Canadian Charter of Rights and Freedoms Sections 2, 7 and 15 at a minimum. Such breaches of federal and provincial law are unacceptable.
We have attached for your consideration a copy of the letter we sent to Board of Health for Hastings Prince Edward Public Health (HPEPH) , which details the breaches of law. This letter includes a scanned copy of the first page of the Order for Suspension where the Medical Health Officer omits the option of personal belief exemption affidavits as valid documents to rescind the Suspension Order. The letter contains all the details of why the Suspension Order therefore constitutes an illegal action.
As the governance body for Public Health Ontario, it is important for your Board to be aware of our concerns in this regard. We have contacted the Ministry of Health and Long Term Care—the main funder of both Public Health Ontario and local public health units—and requested them to ascertain whether all the Orders for Suspension from Attendance at School issued by all 36 Public Health Offices contained the same wording as the one from HPEPH. We deem it likely this is the case as both the Ministry and Public Health Ontario would want consistent wording in all Suspension Orders.
We consider the issue of illegal Suspension Orders a very serious malfeasance on the part of public officials and request remedy of this situation from all involved.
Signed:
Nelle Maxey Secretary Treasurer of Vaccine Choice Canada
On behalf of the Board of Directors
1 Attachment: Letter to the Hastings Prince Edward Board of Health
View a PDF of the above letter here.
View the response from Public Health Ontario (PDF).