WC142 MayJune 2025 - Magazine - Page 11
Canadian provinces and territories have overwhelmingly
delegated decisions about local water supplies, including fluoridation, to local governments. Even in Ontario, where there is
provincial legislation and regulations for drinking water (see
Safe Drinking Water Act, 2002, SO 2002, c 32), the decision
to fluoridate water is still left to the local government.
Because of local governments’ authority over water supply
fluoridation, advocacy efforts to change or maintain the
water fluoridation status of a community should be directed
to the local or municipal government.
Are constitutional challenges to water supply fluoridation
an effective strategy to bring change?
Canadians have tried and failed to challenge the constitutionality of water fluoridation. For example, in the early 2000s, a
Kamloops man, Mr. Millership, challenged the validity of the
legislation that permitted water fluoridation on the basis that it
was ultra vires the provincial government. He also argued that
water fluoridation violated his Charter rights including, his
mobility rights and his life, liberty and security. Mr. Millership’s application was dismissed by the court (see Millership v.
British Columbia, 2003 BCSC 82, affirmed in 2004 BCCA 9).
The Court found that BC’s Local Government Act was
not ultra vires or, put another way, outside the scope of the
province’s authority. Managing water supplies was found to
be clearly a local work or undertaking. With respect to his
Charter rights, Mr. Millership failed to establish a breach
WAT E R C A N A D A . N E T
to his mobility rights. The court found that he was free to
choose whether or not he wanted to live in a fluoridated
community. Mr. Millership also argued that water fluoridation violated his rights to liberty or security. The emotional or
psychological stress water fluoridation caused Mr. Millership
was found not sufficient to constitute a prima facie breach to
his liberty or security. The court held that the fluoridation
was maintained within the range of optimal levels, as such
the intrusion into Mr. Millership’s liberty or security was so
minimal that it did not constitute a breach of his rights.
Similar constitutional arguments were raised in an Alberta
case and were dismissed (see Locke v. Calgary (City), 15 Alta.
L.R. (3d) 70, 1993 CarswellAlta 214).
Takeaways
Canada’s constitutional framework makes municipal and
local matters the responsibility of every province or territory. Managing the water supply, including the decision to
fluoridate water, is a provincial or territorial power. However,
most jurisdictions have delegated water supply management
to local or municipal governments. Consequently, different
cities within the same province may have different stances
on water fluoridation. Canadian courts have held that water
fluoridation laws made by local governments are valid and
not unconstitutional. Therefore, the best way to promote
a local water fluoridation preference is to advocate to local
government officials.
WATER C AN ADA • M AY/JUNE 2025
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