State action has deprived the claimant of her or his right
to life, liberty or security of the person;
Legal Arguments Against F. – Summary & Opinion Cont.
… Should that occur, there is also a real possibility that the Region of Peel would be held legally liable to residents in a lawsuit for harm caused by artificial fluoridation. This memorandum proceeds in three parts.
Part I discusses the factual background to Ontario and Peel’s fluoridation programs and situates these provisions in the global context. Part II discusses the scientific evidence relating to health effects of fluoridation. While fluoridation has significant potential effects on the environment and non-human animal and plant species, I focus on the human health effects because those effects are likely to figure most prominently in a legal challenge to fluoridation. Part III discusses the potential arguments in a legal challenge to fluoridation programs in Ontario as well as other legal issues that may arise in a court challenge to fluoridation in Ontario. I have also appended to this memo an affidavit from Dr. Kathleen Thiessen, a biomedical scientist, who has served on two U.S. National Research Council subcommittees dealing with fluoride exposure and toxicology. Her affidavit was commissioned specifically in connection with the ongoing debate about fluoridation in the Region of Peel.
PART I – FACTUAL BACKGROUND OF ARTIFICIAL FLUORIDATION
Fluoride is the anionic or reduced form of fluorine and is the thirteenth most abundant element in the Earth’s crust. Given that fluorine is so abundant, it is not surprising that fluoride compounds are components of minerals in rocks and soil. Due to these components, and the action of ground water acting upon them, fluoride is released into the groundwater and is the major contributor to the small amounts of fluoride present in most water sources. In general, most ground water contains low concentrations of fluoride, typically less than 0.5 mg/L. Fluoridation is the controlled addition of fluoride ions to water that has a low fluoride concentration (sometimes called “artificial fluoridation”). In the early 1900s, significant work was done in understanding the root cause of the mottling of teeth and tooth decay. This mottling, and improved dental health, was ultimately attributed to the high fluoride concentrations in the ground water that was ingested by these individuals. Over time, additional studies were undertaken, which were purported to establish a relationship between fluoride and substantially fewer cavities, ultimately leading to four community wide trials that were established in the mid-1940s. These trials were conducted in Grand Rapids, MI; Newburgh, NY; Brantford, ON and Evanston, Ill. Soon thereafter, the U.S. Public Health Service and many dental associations endorsed community-wide fluoridation as a practical and safe public health measure to prevent tooth decay. Over the past 65 years, additional investigation has examined everything from the health effects of the various fluoride compounds used in the fluoridation process to the dosage levels that provide adequate dental health protection. Over this time-frame, fluoride dosage levels have on average dropped from 1.0 to 1.2 mg/L to between 0.5 and 0.8 mg/L, while the maximum acceptable concentration (MAC) has been established at 1.5 ppm. The Ontario Ministry of Health and Long Term Care, in partnership with the Ontario Ministry of the Environment, have established a guideline of 0.5-0.8 mg/L for fluoride in drinking water. The Region of Peel claims to “closely monitor” the fluoride levels in the water supply to make sure the correct concentration is being maintained.1 Under the Safe Drinking Water Act Regulations, the maximum allowable concentration of fluoride in Ontario drinking water is 1.5 mg/L.2 1 Region of Peel, Peel Public Health, “Fluoridation – Frequently Asked Questions”, online: http://www.peelregion.ca/health/topics/commdisease/dental/fluoridation.htm#10.
2 Safe Drinking Water Act, 2002, Ontario Drinking Water Quality Standards, O.R. 169/03, Schedule 2. 3 Fluoridation Act, R.S.O. 1990, c. F.22. 4 Ibid., s. 2(1). 5 Ibid., s. 2.1(2). 6 Regional Municipality of Peel, A by-law to provide for the fluoridation of the Town of Caledon’s communal water supply, online: http://www.peelregion.ca/health/topics/commdisease/dental/by-law.htm. 7 Danielle Rabby-Waytowich, “Water Fluoridation in Canada: Past and Present” (July/August 2009), 75 JCDA 451, online: http://cda-adc.ca/jcda/vol-75/issue-6/451.pdf. In 1961, the Province of Ontario enacted the Fluoridation Act, 3 which specifically provided for the establishment and maintenance of fluoridation of drinking water within the Ontario waterworks system. The Fluoridation Act does not require fluoridation. Under the Act, municipalities were given the discretionary authority, by way of the passing of a by-law “…to establish, maintain and operate, or require that the local board establish, maintain and operate, a fluoridation system in connection with the waterworks system.”4 Cities that already had a fluoridation program in place were not required to pass a new by-law; the Fluoridation Act permitted the continuation of those programs.5 Accordingly, the Fluoridation Act permitted the continuing fluoridation of the water supplies of the City of Mississauga and City of Brampton. In 2007, the Regional Municipality of Peel passed a by-law establishing a fluoridation system in the Town of Caledon.6 According to the Canadian Dental Association, approximately 45% of Canadians drink fluoridated public water.7 However, the figures vary significantly across the country. Quebec has historically opposed artificial fluoridation, and as such, today less than 3% Quebec’s population drinks fluoridated water.8 Only approximately 3.7% of residents of British Columbia drinks fluoridated water. 9 At 75.9%, Ontario is the most heavily fluoridated province. In recent years, however, some medium-sized municipalities, including Waterloo and Windsor, have ended their fluoridation programs.10 The debate between pro- and anti-fluoride activists in Ontario municipalities is acrimonious, with both sides accusing the other of “cherry picking” research to boost its argument. Health Canada as well as the Canadian Medical Association and the Canadian Dental Association are staunchly pro-fluoride. The Green Party of Canada, and respected NGOs such as the Council of Canadians, Green Peace Canada and Sierra Club, oppose fluoridation of municipal water supplies. 8 Eric Tchouaket et al, “The economic value of Quebec’s water fluoridation program” (June 2013), 21 J Public Health 523 at 524. 9 Ibid. Danielle Rabby-Waytowich, “Water Fluoridation in Canada: Past and Present”, supra at 452. 10 See CBC News, Fluoride no longer to be added to Windsor water” (Jan. 29, 2013), CBC.ca online: http://www.cbc.ca/news/canada/windsor/fluoride-no-longer-to-be-added-to-windsor-water-1.1325977. 11 Centers for Disease Control and Prevention, “Fluoridation Status: Percentage of U.S. Population on Public Water Supply Systems Receiving Fluoridated Water”, CDC.gov online: http://apps.nccd.cdc.gov/nohss/FluoridationV.asp. 12 Fluoride Action Network, “Water Fluoridation Status in Western Europe”, online: http://fluoridealert.org/content/water_europe/. Canada’s rate of fluoridation puts it squarely in the global middle among the Organization of Economic and Cooperative Development (“OECD”) countries. According to a 2002 study, approximately 69% of U.S. residents were living in communities with fluoridated water. 11 By contrast, only approximately 3% of the population in Western Europe currently consumes fluoridated water.12 Despite this fact, the available evidence does not suggest that tooth decay rates are higher in unfluoridated Western European countries than in the United States or other fluoridated countries.
PART II – SCIENTIFIC EVIDENCE CONCERNING FLUORIDATION The success of any legal challenge to Ontario’s fluoridation program will turn on the quality of expert and scientific evidence presented. For the claimants to be successful, they will have to adduce evidence of both (1) fluoride’s speculative and/or nominal benefit in reducing dental caries; and (2) the risk of harm posed by fluoride in adults and children. To date, the most comprehensive review of the existing scientific evidence on fluoride’s toxicity is the study conducted by the National Research Council’s Committee on Fluoride in Drinking Water, which was published in 2006. 13 The National Research Council (“NRC”) is a non-profit entity in the United States, whose membership includes eminent scientists across the United States. It is funded in part by Congress and the U.S. federal agencies. Its studies are generally considered authoritative. 13 Committee on Fluoride in Drinking Water, National Research Council, Fluoride in Drinking Water: A Scientific Review of EPA’s Standards (National Academies of Sciences Press, 2006) at 4 [hereinafter “NRC Report”]. 14 See, e.g., John Colquhuon, Child Dental Health Differences in New Zealand, 9 Comm. Health Stud. 85 (1987); John Yiamouyiannis, Water Fluoridation and Tooth Decay: Results from the 1987-1987 National Survey of Schoolchildren, 23 Fluoride 55 (1990). The review of the evidence below is not meant to be exhaustive. It is meant rather to highlight the types of evidence that could be presented in a legal challenge. Lack of Evidence of Fluoridation’s Benefits The purpose of fluoridation is to reduce dental caries (tooth decay). Since the 1950s, it has been virtually gospel within the dental community that fluoridation of drinking water is responsible for reducing tooth decay. This belief was once thought to be unassailable. But the evidence available today makes it far from clear. We now know that tooth decay is enhanced or diminished by numerous factors, including dietary, socio-economic, environmental, hygienic and many other factors. Recent studies have shown that tooth decay rates have decreased as fast in unfluoridated areas as in fluoridated areas,14 leading many to suggest that other factors — i.e., improved diet, modern dental care, more regular trips to the dentist and the availability of fluoridated toothpaste — are the causes of decreases in tooth decay rather than water fluoridation. In 1999, the U.S. Centers for Disease Control and Prevention conceded what many dental researchers already had concluded: that fluoride’s predominant mechanism of action was topical, not systemic.15 In other words, to the extent that fluoride works, it does so via direct exposure to the tooth and not from inside the body. Connett, Beck and Micklem argue persuasively that if the primary benefit of fluoride is through topical treatment on teeth, then it makes no sense to expose every tissue in the body to fluoride through ingestion in drinking water.16 15 Centers for Disease Control and Prevention, “Achievements in Public Health, 1900-1999: Fluoridation of Drinking Water to Prevent Dental Caries” (Oct. 1999), 48 Mortality and Morbidity Weekly Review 933-40, online: http://www.cdc.gov/mmwr/preview/mmwrhtml/mm4841a1.htm. 16 Paul Connett et al, The Case Against Fluoride: How Hazardous Waste Ended Up in Our Drinking Water and the Bad Science and Powerful Politics that Keep It There, at 13. 17 NRC Report, supra, at 4 Scientific Evidence of Fluoride’s Harm There is significant scientific evidence of harm caused by fluoridation. And even if the harms associated with fluoridation cannot be proven to a degree of scientific certainty, the existing scientific information and literature point to a variety of serious risks inherent in artificial fluoridation. Dental Fluorosis There is a scientific consensus that fluoridation can cause “dental fluorosis”, which is a dose-related mottling of the enamel of the teeth that can range from mild discoloration of the tooth surface to severe staining and pitting. The condition is permanent after it devel
ops in children during tooth formation. Whether to consider fluorosis to be an adverse health effect or merely a cosmetic effect has been the subject of debate. However, the U.S. National Research Council has concluded that severe fluorosis is more than a cosmetic issue because severe fluorosis can lead to enamel loss, leaving the dentin open to decay and infection and causing structural damage to the tooth.17 Muskoskeletal Effects Skeletal fluorosis is a bone and joint condition associated with prolonged exposure to high concentrations of fluoride. Fluoride increases bone density and appears to exacerbate the growth of osteophytes present in the bone and joints, resulting in joint stiffness and pain.18 There is no doubt that high concentrations of fluoride cause skeletal fluorosis. The debate within the scientific community is the extent of the risk of skeletal fluorosis at current levels of fluoridation. 19 Defenders of fluoridation argue that a concentration of 1.5mg/L is too low to present a risk of skeletal fluorosis. It should, however, be noted that the first symptoms of skeletal fluorosis are similar to the first symptoms of many forms of arthritis — stiffness and pain in the joints and pain in the bones. 18 NRC Report, supra, at 5. 19 Ibid. at 6. 20 Ibid. 21 Ibid. at 7. 22 Ibid. at 8. There is also scientific evidence that fluoride can increase the risk of bone fractures. The NRC Report notes that “several strong observational studies indicated an increased risk of bone fracture in populations exposed to fluoride at 4 mg/L.”20 While there are fewer studies dealing with the risk of bone fracture within populations exposed to fluoride at a rate of 2 mg/L or lower, there is a peer-reviewed study from Finland that suggests an increased rate of hip fracture in populations exposed to fluoride at concentrations above 1.5 mg/L,21 which is the maximum allowable rate of fluoridation in Ontario. Neurobehavioural Effects Animal and human studies of fluoride have been published reporting adverse cognitive and behavioural effects. Epidemiological studies conducted in China have reported I.Q. deficits in children exposed to fluoride at 2.5 to 4 mg/L in drinking water. The NRC found these studies to be sufficiently alarming to call for “additional research on the effects of fluoride on intelligence.” 22 In 2012, a group of scientists published a systematic review of the literature on developmental fluoride neurotoxicity. The review concluded that the consistency of pre-existing studies showing a link between fluoride and cognitive deficits shows that potential developmental neurotoxicity of fluoride should be a high research priority.23 23 Anna Choi et al, “Developmental Fluoride Neurotoxicity: A Systematic Review and Meta-Analysis” (2012), 120 Environmental Health Perspectives 1362 at 1367. 24 Ibid. at 222. 25 Ibid. 26 Ibid. at 336. 27 Ibid. at 10. 28 Elise B. Bassin et al, “Age-specific fluoride exposure in drinking water and osteosarcoma” (2006), 17 Cancer Causes & Control 421. The NRC also noted that fluorides “increase the production of free radicals in the brain through several different biological pathways. These changes have a bearing on the possibility that fluorides act to increase the risk of developing Alzheimer’s disease.”24 The NRC has called for additional studies in this area as well.25 Genotoxicity and Carcinogenicity There have been a number of studies that have suggested a link between fluoride and bone cancer. The NRC Report concludes that fluoride “appears to have the potential to initiate and promote cancers, particularly of the bone, but the evidence to date is tentative and mixed”.26 The NRC cautions readers that at the time of the publication of the NRC Report a major hospital-based study on osteosarcoma (bone cancer) and fluoride exposure was underway at the Harvard School of Dental Medicine.27 The Harvard study, which was published in 2006, found an association between fluoride exposure in drinking water during childhood and the incidence of osteosarcoma among males (but not females).28 This is a significant and concerning finding.
PART III – LEGAL ISSUES AND ARGUMENT Detractors of fluoridation raise a number of policy and moral arguments. These include, inter alia, arguments that fluoridation may be harmful to the environment and plant and animal wildlife. They also point out that fluoridated water in much of North America is treated by using hexafluorosicilic acid (H2SiF6) and sodium silicofluoride (Na2SiF6), which are by-products of fertilizer manufacturing and which contain numerous contaminants, including heavy metals such as lead and chromium, nonmetals such as arsenic, and even trace amounts of radioactive isotopes. While these and other arguments may be persuasive policy arguments against fluoridation, a legal challenge to fluoridation based on human health effects is the most likely argument to succeed in Canadian courts. More specifically, if the proper evidence, such as the medical evidence described above, can be presented in court, there is a reasonable possibility that an Ontario court will declare the Fluoridation Act and the municipal fluoridation programs in Ontario to be unconstitutional. The Constitutional Argument The most viable legal argument against Ontario’s fluoridation program is that it is unconstitutional because it violates s. 7 of the Canadian Charter and Rights and Freedoms. Section 7 provides that “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.”29 Legislation that conflicts with this constitutional right must be struck down. 29 Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11, s. 7 [hereinafter “Charter”]. For an overview of s. 7 and its jurisprudence, see Hamish Stewart, Fundamental Justice: Section 7 of the Canadian Charter of Rights and Freedoms (Toronto: Irwin Law, 2012); Nader R. Hasan, “Three Theories of ‘Principles of Fundamental Justice’” (2013), 63 S.C.L.R. (2d) 339. Section 7 of the Charter means that everyone has the right to life, liberty and security of the person. This right, however, is not limitless. The State can limit one’s rights to life, liberty and security of the person, but only if it does so in accordance with “the principles of fundamental justice.” Thus, to establish a violation of s. 7 of the Charter, the claimant must establish: (1) that the law or State action has deprived the claimant of her or his right to life, liberty or security of the person; and (2) that the deprivation is inconsistent with principles of fundamental justice. There are strong arguments that a claimant challenging Ontario’s Fluoridation Act could satisfy both of these legal requirements. Fluoridation Deprives Residents of the Right to Liberty and Security of the Person The Supreme Court of Canada has found that the liberty interest protected by s. 7 includes the right to make fundamental personal choices free from state interference.30 In the context of medical treatment, the Ontario Court of Appeal has held that the right not to be subject to medical treatment without informed consent is an aspect of the security of the person interest under s. 7. 31 Section 7 thus protects “the right to be free from unwanted medical treatment.”32 To deprive individuals of the ability to make decisions with respect to their treatment and to force them to submit to medication against their competent wishes infringes the Charter right to security of the person as protected under s. 7 of the Charter.33 30 Blencoe v. British Columbia (Human Rights Commission),  2 S.C.R. 307 at, para. 54. 31 Fleming v. Reid,  O.J. No. 1083 at para. 31, 39-40 (C.A.). 32 Ibid. at para. 31. 33 Ibid. at para. 40. 34 Toronto (Metro) v. Forest Hill (Village),  S.C.R. 569. Ontario’s fluoridation programs infringe upon the s. 7 right to security of the person. Fluoridation is State-imposed mass medication. This proposition was established by the Supreme Court’s 1957
decision in Toronto (Metro) v. Forest Hill (Village).34 In that case, the residents challenged a municipal by-law that authorized the City “to undertake the treatment of the …. water supply by fluoridation.” At that time, the Province’s enabling legislation only permitted the municipalities to ensure a “continued and abundant supply of pure and wholesome water.” It did not specifically authorize fluoridation or other forms of mass medication. The City argued that the power to make the water supply “pure and wholesome” implicitly authorized fluoridation. A majority of the Supreme Court of Canada disagreed. It held that fluoridation “is not a means to an end of wholesome water for water’s function but to an end of a special health purpose for which a water supply is made use of as a means.” In other words, the purpose of fluoridation was not to purify the water, but to medicate the population with fluoride. The Ontario Legislature superseded Toronto (Metro) v. Forest Hill (Village) when it passed the Fluoridation Act in 1961. But the Supreme Court of Canada’s conclusion that the purpose of fluoridation is not water purification but rather medication remains the finding of this country’s highest court. As such, Ontario’s fluoridation programs constitute medication without consent and thus deprives Ontario residents of their s. 7 liberty and security-of-the-person interests. Fluoridation Violates the Principle of Gross Disproportionality Given that the Fluoridation Act triggers the s. 7 liberty and security-of-the-person rights, the primary challenge for claimants will be in showing that the deprivation is inconsistent with the principles of fundamental justice. If that can be shown, then the claimant will have succeeded in proving that the fluoridation program is unconstitutional. The most relevant principle of fundamental justice here is the principle against gross disproportionality. A law is “grossly disproportionate” if the state action or legislative response to a problem is so extreme as to be disproportionate to any legitimate government interest.35 In other words, a law will be found to be grossly disproportionate where its benefits are grossly disproportionate to its potential harm.36 35 R. v. Malmo-Levine,  3 S.C.R. 571 at para. 143. 36 Canada (Attorney General) v. PHS Community Services Society,  S.C.J. No. 44,  3 S.C.R. 134 at para. 153; Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 159. If a claimant can properly marshal the available scientific evidence, they ought to be able to show that the risk of significant harm caused by fluoridation is grossly disproportionate to the speculative benefit of reduced dental carries. As noted above, recent studies suggest that the claimed reduction in tooth decay over the past several decades is more likely attributable to improved dental care rather than fluoridated water. If true, then the benefits of fluoridated water are, at best, marginal, or, at worst, nonexistent. By contrast, the negative effects of fluoridation appear to be real and substantial. As noted above, the authoritative NRC Report concludes that dental fluorosis is more than just a cosmetic effect.37 Peer-reviewed scientific studies show that water fluoridation can have an adverse impact on children’s I.Q..38 Other studies show that fluoride can affect bone and make fractures more likely.39 The 2006 Harvard study shows an association between osteosarcoma and fluoridated water.40 Even if these negative effects are not conclusively proven, the risk of potential harm is significant. It would be reckless to expose residents to the risk of cancer, among other things, for the marginal benefit of reduced tooth decay, particularly where, as here, it is no longer clear that fluoridated drinking water is even a significant contributor to reduced tooth decay. Marginal benefit in exchange for significant risk is the sine qua non of gross disproportionality. 37 Supra at 6. 38 Supra at 7. 39 Supra at 6-7. 40 Supra at 7-8. 41  B.C.J. No. 109 (B.C. Sup. Crt). 42  A.J. No. 926 (Q.B.)). The likelihood of success of a hypothetical legal challenge to fluoridation will turn largely on the strength of the scientific evidence presented in court because the stronger the scientific evidence of risk of harm, the greater the gross disproportionality. Previous Legal Challenges Are Not Indicative of Likelihood of Success in Ontario Skeptics about the viability of a successful legal challenge to Ontario’s fluoridation program will point out that since the Supreme Court’s 1957 decision Toronto (Metro) v. Forest Hill (Village), which was superseded by legislative action (see supra at 10-11), all other legal challenges to fluoridation programs in North America have failed. For the following reasons, I do not regard these cases as barring a legal challenge in Ontario. The Canadian Cases In Canada, there have been unsuccessful challenges to fluoridation programs in Alberta and British Columbia: see, e.g., Millership v. Kamloops (City); 41 Locke v. Calgary (City).42 Those cases, however, are distinguishable on at least three different grounds. First, those challenges were brought by self-represented litigants. While it appears that these individuals did an admirable job at marshaling the evidence and the arguments, novel constitutional challenges such as this are highly complex and require the assistance of counsel. Second, the scientific evidence about fluoridation is improving. More information than ever before is known about fluoridation. At the time that Millership (2003) and Locke (1996) were decided, for example, the NRC Report had not yet been published. Nor had the Harvard study on the association between osteosarcoma and artificial fluoridation been completed. Third, Canadian constitutional law under s. 7 of the Charter has developed significantly over the past five years. The principle of fundamental justice of “gross disproportionality” is a fairly new principle in Canadian constitutional law. Prior to the Supreme Court’s recent decisions in PHS and Bedford, there was some doubt over whether this principle was indeed a principle of fundamental justice and also some doubt over what “gross disproportionality” actually meant. In my view, the best argument against fluoridation relies on the principle of gross disproportionality. This argument was not available to the claimants in Locke and Millership. Each of these factors suggests that these other cases will not bar a successful constitutional challenge to fluoridation in Ontario.
The U.S. Cases
The U.S. cases are also distinguishable, but for different reasons. There have been a handful of high-profile cases in the United States that involved challenges to municipal fluoridation programs. These challenges have failed on technical grounds, but each time the trial judge made judicial findings of fact that supported the plaintiffs’ arguments that fluoridation causes harm to humans. In Aitkendead v. Borough of West View, the trial judge granted a preliminary hearing enjoining the municipality from continuing its fluoridation program on the basis that the plaintiffs had shown compelling evidence that fluoride may be a carcinogen.43 That decision was superseded by legislative action,44 but 43 Aitkendead v. Borough of West View, No. GD-458578 (Allegheny County Court of Common Pleas, Pa); see also John Remington Graham and Pierre-Jean Morin, “Highlights in North American Litigation During the Twentieth Century on Artificial Fluoridation of Public Water Supplies,” 14:2 J. Land Use & Envtl. L. 195 at 229-232. 44 Aitkendead v. Borough of West View, 397 A.2d 878 (Pa. Commw. Ct. 1979) 45 See Graham and Morin, “Highlights in North American Litigation During the Twentieth Century on Artificial Fluoridation of Public Water Supplies,” supra at 232. 46 Illinois Pure Water Committee v. Director of Public Health, No. 68-E-128 (Madison County Circuit Court Ill. 1982). 47 Ibid. at 32. 48 Ibid. at 33. 49 Illinois Pure Water Committee v. Director of Public Health, 470 N.E.2d 988 (Ill. Sup. Ct. 1984). 50 Ibid. at 991-992. the factual findings spurred investigations into fluoridation in the United Kingdom and in Quebec, with the latter ultimately imposing a moratorium on fluoridation across the Province.45 The next important U.S. case involving a challenge to fluoridation was Illinois Pure Water Committee v. Director of Public Health.46 After a lengthy trial, Judge Niemann concluded that fluoridation legislation, which “exposes the public to the risk, uncertain in its scope, of unhealthy side effects of artificial fluoridation in water supplies, is unreasonable, and [is] a violation of the due process clause of the Illinois Constitution of 1970.”47 He further noted that “[t]his record is barren of any credible and reputable scientific epidemiological studies and/or analysis of statistical data which would support the Illinois Legislature’s determination that fluoridation of public water supplies is both a safe and effective means of promoting public health.”48 Accordingly, Judge Niemann entered a permanent injunction enjoining further fluoridation in Illinois. The Illinois Supreme Court granted the State’s appeal, but it did not disturb any of Judge Niemann’s factual findings.49 Instead, the Illiniois Supreme Court relied on an expansive doctrine of “police powers”, under which the State was granted significant deference on decisions relating to public health. The Illiniois Supreme Court wrote that the “wisdom, necessity and expediency” of the fluoridation program “are no concern of the courts, but are matters primarily for the legislative body of the municipality, and courts are without power to interfere merely because they believe a different regulation might have been wiser or better.”50 Under this heightened evidentiary burden, it was not enough that the plaintiffs have shown that fluoridation causes “some risk of a higher incidence of cancer.”51 51 Ibid. at 992. 52 Safe Water Foundation of Texas v. City of Houston, No. 80-52271, Findings of Fact, May 24, 1982, at 1- 2. 53 Safe Water Foundation of Texas v. City of Houston, 661 S.W.2d 190 at 192 (Tex. App. 1983). The court reached a similar result in Safe Water Foundation of Texas v. City of Houston, a challenge to the City of Houston’s fluoridation program. After a lengthy trial, with ample expert testimony on both sides, the trial judge concluded that artificial fluoridation of public water supplies “may cause or contribute to cancer, genetic damage, intolerant reactions and chronic toxicity, including dental mottling…,” and “that the value of said artificial fluoridation is in some doubt as to the reduction of tooth decay in man.”52 Still, the court denied the plaintiffs’ motion for an injunction on grounds of police powers. The Texas Court of Appeals denied the appeal on similar grounds, but also acknowledged the significant evidence in the record that fluoridation caused harm. It noted that if the standard had been the normal civil standard of evidence (e.g., a balance of probabilities), the plaintiffs would have won. Indeed, the Texas Court of Appeals expressly found that a fair preponderance of evidence showed that “the injection of fluoride into the City’s water system would be harmful,” but saved the legislation on police power grounds.53 The U.S. cases would likely have reached a different result had Canadian law been applied or if those cases had been litigated in Canadian courts. The U.S. cases applied a very deferential standard to the pro-fluoridation defendants and held the plaintiffs to a nearly impossible burden of proof. A claimant bringing a constitutional challenge under s. 7 of the Charter would not face the same obstacles. In other words, the police powers doctrine would not save the Ontario Fluoridation Act if fluoridation was found to cause harm. The Use Hexafluorosicilic Acid (H2SiF6) I have been advised that the Region of Peel uses hexafluorosicilic acid to fluoridate its drinking water. Hexafluorosicilic acid is a waste product that is created in the fertilizer manufacturing process.54 When hexafluorosicilic acid is in its gaseous form (hydrogen fluoride (HF) and silicon tetrafluoride (SiF4)), it is a highly toxic substance. 54 Paul Connett et al, The Case Against Fluoride, supra at 16. 55 Ibid. at 19. 56 United States Environmental Protection Agency, “Arsenic in Drinking Water”, online: http://water.epa.gov/lawsregs/rulesregs/sdwa/arsenic/index.cfm. 57 Ibid. 58 Safe Drinking Water Act, 2002, S.O. 2002, ch. 32, s. 20(1)(a). 59 Food and Drugs Act, R.S.C., 1985, c. F-27, s. 4. Proponents of using hexafluorosicilic acid as a fluoridating agent argue that by the time it is diluated by about 180,000 to 1 (to reach acceptable fluoride concentrations), the contaminant levels will be below regulatory concern.55 But this argument overlooks the fact that amounts of other contaminants, such as arsenic, remain in the hexafluorosicilic acid solution. The U.S. Environmental Protection Agency sets the ideal safety goal for arsenic in drinking water at zero because arsenic is a known human carcinogen.56 While there may be trace amounts of arsenic naturally occurring in water, it is difficult to justify the addition of a known carcinogen.57 Critics of hexafluorosicilic acid also point out that there are no known toxicological studies regarding the safety of using hexafluorosicilic acid to fluoridate water. Apart from the constitutional argument described above, the use of hexafluorosicilic acid may violate the Safe Drinking Water Act. Section 20 of the Safe Drinking Water Act provides that “[n]o person shall cause or permit any thing to enter a drinking water system if it could result in … a drinking water health hazard….” or “is a contravention of a prescribed standard.”58 The use of hexafluorosicilic acid may also violate the federal Food and Drugs Act. Section 4 of the Food and Drugs Act prohibits the sale of articles of food or drink that “has in or on it any poisonous or harmful substance.” 59 To the extent that hexafluorosicilic acid contains a known carcinogen, then its addition to the water represents the addition of a “poisonous or harmful substance”, which is, in turn, sold to the residents of Peel. Liability of the Region of Peel A finding that the Region of Peel’s fluoridation program is unconstitutional and/or that the use of hexafluorosicilic acid is illegal could have significant pecuniary implications for the Region. If a court should find that the fluoridation program was unc
onstitutional because of an unacceptable risk of harm, this could pave the way for lawsuits against the municipality. The Municipal Act, 2001 imposes a statutory duty of care on those who oversee drinking water systems and makes municipalities liable in tort for acts or omissions.60 Moreover, as of December 31, 2012, amendments to the Safe Drinking Water Act clarified the standard of care for municipalities. Under this standard, municipalities must exercise the level of care, diligence and skill in respect of a municipal drinking water system that a reasonably prudent person would be expected to exercise in a similar situation.61 The standard of care also extends to the owner of the municipal drinking water system, and to those people who, on behalf of the municipality, oversee the accredited operating authority or who exercise decision-making authority over the system. 60 Municipal Act, 2001, S.O. 2001, ch. 25, ss. 448(2), 448(3). 61 Ibid., s. 19(1). 62 Ibid., s. 19(2). The Safe Drinking Water Act puts responsibility for ensuring safe drinking water squarely on the municipalities. It also arguably makes those who make decisions about the municipal water supplies — such as Councillors — personally liable for acts or omissions.62 It follows that if a court should find that fluoridation puts residents of Peel at risk of harm, then the Region of Peel and its Councillors may be liable to its residents for damages on the civil negligence standard. It is also worth noting that the Region faces potential liability not only under a potential civil suit brought by residents but may also be prosecuted by the Province. Under the Safe Drinking Water Act Regulations, any person resident in Ontario can ask the Ontario government to investigate the Region for an alleged violation of the Act.63 Furthermore, the Safe Drinking Water Act provides that a violation of s. 20 — the prohibition on putting material into water that could cause a health hazard — shall be a criminal offence. Thus, if fluoride is proven to cause harm or a risk of harm, then a municipality that continues to fluoridate could theoretically face criminal prosecution. 63 Safe Drinking Water Act, 2002, Compliance and Enforcement Regulation, O. Reg. 242/05, s. 7(1). Thus, a municipality that fails to discharge its duty of care under the Safe Drinking Water Act could face (1) civil liability to residents in a civil lawsuit; (2) prosecution by the Ontario government; and (3) potentially, criminal liability. These risks and liabilities ought to be sufficient to encourage municipalities to carefully re-examine their water fluoridation programs.
CONCLUSION AND RECOMMENDATIONS
In sum, if a resident of Peel succeeds in marshaling the available scientific evidence in court, there is a reasonable possibility that the Fluoridation Act and the Peel fluoridation programs could be found to be unconstitutional under s. 7 of the Charter. And if it is demonstrated in court that fluoridation puts the residents of Peel at risk, the Region is potentially liable in tort to every resident of the Region who drinks fluoridated municipal water. It is recommended that the Regional Council take the following steps:
1. That the Council pass a resolution to re-examine its fluoridation program;
2. That the Council hear expert testimony from experts in the fields of medicine, epidemiology and dentistry to better understand the risks and benefits associated with water fluoridation;
3. That the Council hear expert testimony both from experts who support fluoridation and those who oppose fluoridation; and
4. That the Council require that experts presenting their opinions also provide the Council with the underlying data and studies on which they are relying for their opinions. There is enough competing opinion in the scientific community that it will be important for municipalities to understand the bases for scientific opinion as they re-examine this important issue. I look forward to discussing the foregoing with you further.
Nader R. Hasan
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