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Vaccination and the Law in Ontario and Nova Scotia (1800 – 1924)

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Vaccination and the Law in Ontario and Nova Scotia (1800 – 1924) Vaccination and the Law in Ontario and Nova Scotia (1800 – 1924) by Ubaka Leo Ogbogu A thesis submitted in conformity with the requirements for the degree of Doctor of Juridical Science Faculty of Law University of Toronto © Copyright by Ubaka Ogbogu 2014 Vaccination and the Law in Ontario and Nova Scotia (1800 – 1924) Ubaka Ogbogu Doctor of Juridical Science Faculty of Law University of Toronto 2014 Abstract Since the discovery of smallpox vaccination in the late eighteenth century, Western societies have often confronted the question of whether the state can justifiably impose the procedure on its citizens in the interest of safeguarding general public health. This question is at the heart of ongoing controversies regarding whether to require mandatory vaccination to check a resurgence of childhood diseases such as measles. While there are social and medical histories of the application of vaccination to the problem of infectious diseases in Canada, much remains unknown about the legal history of the procedure, including, specifically, the nature and scope of legal mechanisms used to enforce vaccinations and the factors — legal, social or otherwise — that account for the effectiveness, success or failure of these mechanisms. This dissertation addresses this gap through the lens of the legal history of smallpox vaccination in Ontario and Nova Scotia in the nineteenth and early twentieth century. It provides an original, comprehensive account of vaccination law and policy in nineteenth century Canada, encompassing the factors and ideologies that triggered and shaped the legal regulation of ii smallpox vaccination, the processes, design, content and outcomes of legal regulation, challenges associated with the implementation and enforcement of vaccination laws, and the influence or impact of broader social and political arrangements and norms. It also provides a firsthand account of why and to what extent mandatory approaches to vaccination were utilized in preventing the introduction and spread of smallpox, how such approaches were fashioned, and the reasons why they succeeded or failed to achieve stated regulatory aims. The study shows that approaches to vaccination varied between Ontario and Nova Scotia, and that the effectiveness of vaccination policies depended on the design of legal measures utilized, strong and responsive (local) government, holistic approaches that eschew a singular focus on vaccination over other methods of fighting infectious diseases, the absence of ideological contests over the legitimacy of mandatory vaccination, availability of financial resources to support the administration of vaccination, heightened and sustained threats of infectious diseases, and a population that is generally supportive of public health interventions. iii ACKNOWLEDGEMENTS This work is dedicated, first, to Gift, Maya and Amaka, my support team. Your love and encouragement is the force that propels me forward. I also dedicate this work to my parents, Maria Uzochikwa and Kenneth Nwachukwu, who instilled and nurtured a love of learning in me. And finally, to the Canadian taxpayer and my dear Aunt Esther, for funding my studies. I am immensely grateful to my supervisors, Professors Trudo Lemmens and Jim Phillips, for their guidance, patience, and mentorship. I could not have asked for a better duo to oversee my development as an academic. Dālụ́ . I would also like to thank my dissertation committee, including Professors Angela Fernandez, Philip Girard, Martin Friedland and Angela Miles, for their thoughtful consideration of this work. Sarah Hamill, Maeghan Toews, Adam Ollenberger and Carmelita Robertson provided research and editorial assistance. Thank you. I am grateful for the assistance of the wonderful staff at the Archives of Nova Scotia, Archives of Ontario, Argyle Township Court House Archives, and the Halifax Regional Municipality Archives. My colleagues at the Faculties of Law and Pharmacy and at the Health Law Institute, University of Alberta helped with this project in various ways. I am grateful for your collegiality and camaraderie. I am also grateful to the Faculty of Law for various grants to support my archival research. Gift, my dear wife, read the entire dissertation and loved it. You’re tops, hon. Lastly, my eternal gratitude to all my wonderful family and friends, whose companionship and encouragement has made all the difference. iv Table of Contents CHAPTER ONE – INTRODUCTION ............................................................................... 1 1.1 Background and Aims .......................................................................................... 1 1.2 Why Smallpox Vaccination? .............................................................................. 14 1.3 Why Ontario and Nova Scotia? .......................................................................... 16 1.4 Contribution and Thesis ..................................................................................... 18 1.5 Approach and Outline ........................................................................................ 24 1.6 A Brief History and Historiography of Smallpox in Canada ............................. 24 1.7 A Brief History of Vaccination .......................................................................... 33 1.8 A Brief Historiography of Vaccination and the Law in Canada ........................ 38 Plate A: Advertisement for inoculation services by Doctors Kerr and Muirhead (25 January 1797) ................................................................................................................ 45 CHAPTER TWO – ONTARIO ........................................................................................ 46 2.1 Slow Starts and Unfulfilled Responsibilities: Smallpox and Infectious Disease Management in Ontario ................................................................................................ 46 2.2 Smallpox, Vaccination and the Law: From Union to Centralized Governance of Public Health ................................................................................................................. 73 2.2.1 Legislative Developments in the Union Era ............................................... 73 2.2.2 Smallpox, Vaccination and the Path to Legal Management of Infectious Diseases..................................................................................................................... 78 2.2.3 Britain’s influence on the legal adoption of vaccination in Canada ........... 80 2.2.4 Legal regulation of vaccination in Ontario: A new era in public health governance emerges, and Britain’s influence wanes ................................................ 95 2.2.5 Vaccination and the professionalization of medicine in Ontario .............. 104 2.3: Advancing the People’s Welfare through Legal Action: Re Provincial Board of Health for Ontario and City of Toronto ...................................................................... 123 2.4 Conclusion ........................................................................................................ 160 Plate B: Pen-marked letter from a number of doctors to Ontario Premier James Whitney opposing vaccination (1 December 1900) (2 pages) .................................... 162 Plates C - G: Telegrams sent by doctors to the Attorney General of Ontario in support of medical legislation (1925) (5 pages) ...................................................................... 164 CHAPTER THREE – NOVA SCOTIA ......................................................................... 169 3.1 Introduction: A Concerted and Efficient Response to Infectious Diseases ..... 169 v 3.2 Preliminary Observations and Chapter Structure ............................................. 180 3.3 Smallpox, Vaccination, Infectious Diseases, and Public Health: Overview of the Legal Framework ........................................................................................................ 185 3.3.1 Pre-1800 .................................................................................................... 185 3.3.2 Post-1800: Quarantine and infectious diseases become distinct subjects of legislation ................................................................................................................ 200 3.3.3 The role played by local officials in implementing the infectious disease statutes ................................................................................................................... 204 3.3.4 The Province adopts vaccination legislation ............................................. 208 3.3.5 Payment Disputes...................................................................................... 227 3.3 Central Administration, and the Emergence of a Formal Public Health Bureau ... .......................................................................................................................... 240 3.4 Conclusion ........................................................................................................ 245 Plate H: Document showing number of persons that received the smallpox vaccine in Halifax (circa 1841) (2 pages) .................................................................................... 248 Plate I: Board of Health Regulations for the Ports of Bridgewater & LaHave in the County of Lunenburg, in relation to Small-Pox (1885) .............................................. 250 CONCLUDING THOUGHTS.......................................................................................
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