The Ordinary Antivaccinationist: Clowes v Edmonton School Board

The subject of today’s post is the first and only reported case on Alberta vaccination laws prior to 1920. The 1915 case is one of a number of cases I have compiled which deal with court challenges presumably initiated by ordinary citizens who were opposed to nineteenth and early twentieth century vaccination laws (similar court challenges were brought against mid-nineteenth century UK compulsory vaccination statutes, but on the basis that penalty provisions in the statutes violated the common law autrefois convict plea).

In the present case, plaintiff Clowes challenged a provision in Alberta’s Public Health Regulations of 1911 (enacted pursuant to the 1910 Public Health Act) which stipulates that no person was to be admitted to a school without proof of successful vaccination or of insusceptibility to smallpox, the disease for which vaccination was indicated. The basis for the challenge was that the regulation was subordinate to and in conflict with the Truancy Act, another Alberta statute that mandated compulsory school attendance  (one wonders why this conflict was not detected during due diligence prior to enacting the Regulations). Clowes, who I imagine was one of many ordinary citizens who were opposed to vaccination at that time (the case was not reported in the newspapers, and I haven’t been able to find any information about those involved in the case outside of what appears in the law reports), sought an order of mandamus from the Alberta Supreme Court to compel the admittance of his unvaccinated son, Robert Gordon Clowes, to school. The court reluctantly found in his favour.

In separate opinions, each of the five sitting justices found that although the regulations were justifiably intended for the prevention of infectious disease and protection of the public’s health, and was much less intrusive than the compulsory infantile vaccination laws that then existed in England, it was nonetheless irreconcilable with the Truancy Act and as such, could not be upheld. Upholding the regulation would amount to repealing the Act or rendering it ineffective. Chief Justice Harvey referenced but distinguished a Minnesota case, State v Zimmerman, where the court upheld an emergency regulation that was similarly in conflict with a state law compelling school attendance. In Zimmerman, the Supreme Court of Minnesota upheld the emergency regulation on the basis that it was enacted pursuant to a statute on the subject of the preservation of public health and prevention of the spread contagious diseases, and being thus a statute “intended and enforced solely for the public good”, must be taken to be “primary and superior” to a statute that protects the right to attend public school. Echoing a common public health refrain, the Zimmerman court declared that as regards the balance required to resolve the conflict between both statutes, “the welfare of the many is superior to that of the few.” However, Chief Justice Harvey distinguished Clowes from Zimmerman on grounds that the regulation in issue was a general one, and not an emergency regulation.