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In Defence of Civil Disobedience
August 17, 2005 Courtroom 302--408 York Avenue Your Honour, Thank you for the
opportunity to allow Justice to decide the merits of this case.
Originally, my plan was to plead Not Guilty with the defence of
Necessity; my lawyer indicated that it could take ten months before
that case could be heard. He went on to explain that there would
be just as much opportunity to bring facts before the court by pleading
guilty and it has the benefits of 1) happening now, while there is
still time to stop fogging this year and 2) being less likely to annoy
the court. I have no desire to waste this Court's time forcing
you to prove something I will admit to having
done. Yes, I was at 3 Grey Street and yes, I blocked mosquito
fogging trucks. Today I wish to present an explanation as to why
I believed that to be necessary, while remaining cognizant of the other
piece of advice from my lawyer
("you probably don't want to go on for days and days--there is a point
of diminishing return".) With that in mind, I have prepared
arguments to make you question, who really is committing a crime?
I have heard it said that if our government decided to fog citizens of
any other country, it would be considered an act of war. Today, I will be
submitting peer-reviewed documents to this court demonstrating that
Malathion is
neurotoxic, immunotoxic and genotoxic. I will present you with
documentation outlining the inadequacies of the registration processes
of both Canada and the United States. I will present possible
symptoms of organophosphate (OP) exposure, which are often not
recognized by Manitoba
doctors, as well as an explanation of the risks of repeated low-dose
exposures. I will detail effects to humans and the
environment. I will talk about our inadequate adverse effects
reporting system, the precautionary principle,
prevention, history, and finally, I will talk about laws. Health Canada's Factsheet on Malathion states that "You should consult your health-care provider" about the following symptoms of overexposure:
"In addition
to acute poisoning, malathion and other organophosphate
insecticides have been reported to be associated with chronic effects in humans, including peripheral neuropathy, chronic neurobehavioral effects, and the reported development of a sensitivity to chemicals previously tolerated which is associated with a wide variety of symptoms. Malathion and the other OPs poison humans and insects through their effects on nerve enzymes (Morgan 1989). Malathion combines chemically with the acetylcholinesterase enzyme and inactivates it. This enzyme is essential for control of nerve impulse transmission. Loss of acetylcholinesterase allows the accumulation of acetylcholine, the substance secreted by nerves that activates muscles, glands, and other nerves (Morgan 1989). Accumulation of sufficient levels of acetylcholine at junctions between nerves and muscles will cause muscle contractions or twitching. Accumulation of acetylcholine at junctions between nerves and glands results in gland secretion. And accumulation of acetylcholine between nerves in the brain will result in sensory and behavioral disturbances.
The principal signs and symptoms of acute malathion poisoning
Poisoning due to unrecognized dermal absorption (as well as You may be wondering how a substance with that kind of human health record gets registered. People often say, well if Health Canada registers it, it must be safe. It is actually illegal to advertise a pesticide as being safe. All pesticides are toxic; they are designed deliberately to be toxic--if they weren't, they wouldn't work. The question in "risk assessment" lies in what levels are "safe" for humans. A previously accepted theory was 'the dose makes the poison'. It is now known that even very-low dose exposures, especially repeated ones, can cause serious damage if the exposure occurs during certain key periods of development, or to particularly sensitive people. I refer you to Dr. Sandra Steingraber, Living Downstream or the Ontario College of Family Physicians, Pesticides Literature Review, which states on page 63: Immunotoxicity An
excellent literature review on immunotoxicity summarized (i)
The three components of the immune system--humoral, cell- (ii)
The immune system can be stimulated or suppressed by (iii)
Acute toxicity is not directly related to the immunomodulating In other words, the most toxic pesticides are not causing the most immune deficiency. Let us return to the point about how things get registered. Substantial writings exists pointing out the failures of Health Canada and its Pesticide Management Regulatory Agency (PMRA) to protect Canadians, and the Environmental Protection Agency (EPA) to protect Americans, from pesticides. Keeping in mind the advice about your patience, I have elected to bring only 3 of those to your attention today. So-called "smart" legislation is bringing Canada's regulatory policies in line with those of the US, as more and more of our policies begin to reflect those of the EPA, it's good to be aware of the short-falls of both of them. I will be leaving the Court with a copy of the comments submitted on behalf of the Natural Resources Defence Council by Dr. Jennifer Sass (Malathion, Docket OPP-34223) which points out in very scientific, detailed terms, precisely how the EPA fails to consider important data in registering Malathion. She states, "Specifically, EPA has erred in its decision to downgrade the carcinogenicity classification of the malathion, overlooked important limitations of its developmental and neurotoxicity studies in its calculation of non-cancer concerns, and ignored peer-reviewed literature documenting toxicity of the malathion metabolite, malaoxon....For its exposure estimates, EPA has also erred seriously, most notably by completely failing to take into account direct and intentional exposures when people apply malathion onto their body for lice control, dismissing the exposures that nursing infants will receive to malathion in breast milk, and ignoring key uncertainties in environmental transformation of the chemical to the more toxic malaoxon in the environment, to name only three. (p 1 & 2) Another problem which plagues both the PMRA and the EPA, and which many people don't know, is that research data is compiled and submitted (by the manufacturer) on only the "active" ingredient, not the entire formulation, not the 'inerts' or 'carriers', not the 'trade secret' ingredients*, and certainly the real-world exposures that we all face to numerous different pesticides and other chemicals repeatedly or in combination. More on this point from Dr. Sass, "Most of the EPA individual OP risk assessments thus far have provided cause for human health concerns. However, the organophosphates are also known to demonstrate a common mechanism of human neurotoxicity through inhibition of the enzyme cholisesterase. Therefore, individual assessments only lend fuel to the urgency for EPA to proceed with cumulative risk assessment of the OPs as mandated by the Food Quality Protection Act." (p 19) (*Winnipeg's Entomologist was able to reveal only 95% of the contents of Malathion used; the other 5% is considered 'trade secret'.) In case you think things are better in Canada, I am sorry to disappoint you. Point 1.1 of the Report of the Auditor General, Chapter One: Managing the Safety and Accessibility of Pesticides states, "the federal government is not adequately ensuring that many pesticides used in Canada meet current standards for protecting health and the quality of the environment. 1.5 Health Canada has done only limited research on the health effects of pesticides despite the federal government's stated priority in this area. 1.15 The possible health and environmental impacts may be delayed--in some cases, for decades--and some people, especially children, may be particularly susceptible. 1.46 Steps are not always followed. Although the Agency's process for evaluating pesticides is well-defined, its staff do not always follow the required steps. We reviewed files on 30 recent submissions. They included those that were processed most quickly and those that took the longest to process. We found that in more than half, evaluators expedited the submission, skipped screening steps, cut the scientific review short, or skipped the public consultation stage." 1.102 Health Canada has very limited dedicated funding for research on human exposure to pesticides or the resulting health effects. Three researchers are working on current pesticides, and they rely primarily on outside funding. If you are interested in learning more about inadequacies of the PMRA and Health Canada, please refer to an article publish for Sierra Club of Canada by Patrica Running-Horan and featured in a CBC in-depth interview, called Misrepresentations from the Industry. Not only are the laws governing how pesticides are registered inadequate, but so are our systems to report adverse effects. Point 1.97 of Chapter One states, "Monitoring of adverse effects still not implemented. Reports of pesticide problems by registrants, doctors, provincial agencies, university researchers, and pesticide users could help the Agency and other organizations understand the impacts of pesticides. Currently, the adverse effects of pesticides on human health and the environment are tracked and reported only on an ad hoc basis. In 994 and again in 2000, the federal government committed to developing a program of mandatory reporting, in a consistent format, on adverse effects of pesticides. 1.98 With the new Act, registrants will be required to report adverse effects to the Agency." (p 25) Sadly, this commitment appears to have become nothing more than a referral to the manufacturer. See PMRA - New PCPA : Adverse
Effects
Reporting
Aside from human health effects, other major issues of concern (including concerns related to its break-down product, malaoxon) are well-documented in the EFED Environmental Risk Assessment on the EPA website. EFED has summarized the major ecological issues of concern for malathion usage as follows: 1. Malathion is highly toxic to aquatic organisms at concentrations which have been monitored or are predicted to occur in association with many presently registered use patterns. 2. Malathion is potentially hazardous to reproductive success of certain species of birds and mammals at presently registered use rates. In addition, malathion may pose sublethal effects to terrestrial and aquatic organisms through neurological inhibition which may adversely impact their survival in the natural environment. These concerns are based on laboratory and field study observations, measurement of reduced acetylcholinesterase levels in exposed wildlife, and measurement of malathion residues in tissues of organisms which were adversely affected from malathion exposure. 3. Malathion is highly toxic to beneficial insects. Direct contact during application, post application contact with foliar residues, and contact with pollen transported residues have all proven toxic to honeybees. Malathion is highly toxic to aquatic larval stages of terrestrial insects when transported to water. Use of malathion in indiscriminate types of applications (fogging or broad-target aerial) to urban and rural sites is expected to impact numerous species other than the intended target insect pests. 4. Malathion has high potential to drift off target from aerial ULV applications and has been monitored at levels high enough to pose concern for non-target invertebrates as far as 200 meters from the application site (Penn. State Boll Weevil Eradication study-see RED text for details). This concern is heightened by the fact that there are presently no aerial buffers on any malathion labels. The overall impact of malathion on the environment has likely been mitigated by several factors over its long history of usage in the United States. Some of these factors are: 1. Malathion appears to degrade rapidly in the presence of active soil microbial activity. This activity varies in certain types of soil with degradation most rapid in moist soils. 2. Malathion appears to degrade quickly in water with high pH (> 7.0). 3. In general, malathion has not been observed to be as persistent on soil or in water as some of the other organophosphate insecticides with which it competes and it displays lower acute toxicity to birds and mammals. 4. In general, large tributaries with rapid flow rates have been adequately flushed to prevent buildup of malathion to acutely toxic levels for fish. Thus, most fish kills in malathion usage areas have been in small streams or ponds where slow flow rates permitted concentrations to exceed toxic levels for fish or where heavy rainfall events to large watershed areas allowed high concentration pulse loads to impact small aquatic habitat For a great historical explanation of risk assessment, I refer you to Risk Assessment: Is it really safe? by Marti Mussell, Coordinator of Women's Environmental Network/Ottawa, in which she points out the shortcomings as presented to conference delegates in Seattle, in 1994. It is worth noting, that despite numerous conferences, papers, and research in the intervening 11 years, we still face the same problems, except that now it is estimated that there are currently 85,000 chemicals in use. Malathion is on the list of known or suspected endocrine-disruptors. See Appendix 5.1 Pesticides, Making the Right Choice for the Protection of Health and the Environment Precaution Where our government in Manitoba is busy making risk-based decisions, The Standing Committee on Environment and Sustainable Development, in Making the Right Choice For the Protection of Health and the Environment, advocates using the Precautionary Principle. "Appropriate preventive measures are to be taken where there is reason to believe that a pesticide is likely to cause harm, even when there is no conclusive evidence to prove a causal relation between the pesticide and its effects." (p 13) Another way of saying this was put forth this week by Canadian Cancer Society community outreach consultant Nathalie Noel, when she was making a presention to the Town of Tillsonburg. "The Canadian Cancer Society believes we should limit exposure now, rather than possibly face illness later," she said. "To put it at its most basic level, it's better to be safe than sorry." The Ontario College of Family Physicans expresses it another way, "When an activity raises threats of harm to human health or the environment, precautionary measures should be taken even if some cause and effect relationships are not fully understood." They go on to say "...and it is clear that a concerted effort by physicians to reduce patients' pesticide eposures could produce measurable reductions in cancer. Stronger intervention at the regulatory level, such as the province-wide cosmetic pesticide ban instituted by the Government of Quebec in 2003, could well prove to provide important cost savings to the health care system. Even in the absence of cost reductions, the smallest reduction in incidence of non-Hodgkin's lymphoma, childhood leukemia, or brain cancer would reduce human costs and be a cause for celebration." (p 165 and 166) Prevention When thinking about prevention, please compare our government to this one, whose list of references for their healthy lawn website from Erie County in Buffalo, New York, is phenomenal. Dr. Kettner's attempts to justify fogging fall flat, in comparison, "While recognizing that the evidence is incomplete, it is reasonable to believe that in the overall balance the potential health benefit should signifiicantly outweigh the risks and costs of using malthion in appropriately selected situations." (Winnipeg Free Press, Aug 12 and 13). Reasonable for whom? Not for someone who has read the literature on Malathion, not for someone who has been made ill with respiratory, neural or dermal effects, and definitely not for someone who has become disabled by MCS. Perhaps even more disturbing than his complete lack of regard for potential human health damage, is his cavalier attitude about not accomodating human rights. On August 5th, he states in the Winnipeg Free Press, "People who don't want to be exposed to malathion can leave their homes for a few days." Human Rights The Saskatchewan Human Rights Commission has stated that health regions cannot protect the public health by putting at risk the health of those with disabilities and that they have an obligation to ensure that reasonable accommodations are in place. Ontario Human Rights Commissioner Keith Norton has identified persons with environmental sensitivity, pregnant women, babies and young children, and persons with disabilities as people at risk of adverse impacts in the event of the fogging to kill adult mosquitoes. The Canadian Human Rights Commission acknowledges that should the government choose to fog, it has a Duty to Accomodate. Keith Norton, the Chief Commissioner of the Ontario Human Rights Commission has stated that individuals disabled by environmental sensitivities must be accommodated under the Ontario Human Rights Code, regardless of any medical or social debate that may surround these issues. "Furthermore, disabled individuals, including the 15 to 30% of the population (according to recent research at Dalhousie University) that suffers from environmental sensitivities, have a right under the Charter and under the Ontario Human Rights Code to be free from discrimination. Disabled individuals must be accommodated by government in its provision of services and accommodation to the point of undue hardship. Undue hardship is a very high standard to meet, and any policy that has an adverse effect on disabled individuals is a discriminatory one." Several years ago, representatives
from Manitoba Health met with environmentalists, patients with MCS and
others concerned about this issue to talk about
accomodation. They decided that accomodating people would
be too difficult, so they wouldn't bother. According to the Manitoba Human Rights Code, human rights trump all other laws, even ministerial health orders. Paramountcy of Code On behalf of those people at risk
of adverse impacts in the event of fogging, I have recently made
complaints of discrimination and systemic discrimination against the
Province of Manitoba and Manitoba Health for failing to provide
accomodation under Section 13 of the Human Rights Code. As you
are well aware, the Human Rights Code of Canada guarantees me, in
Section 7, the Right to Life. I am sure no one could argue that
the Right to Life does not include the right to breathe.
The Code also provides me, under Sections 2(b) Freedom of expression
and 2(c) Freedom of peaceful assembly, as was recognized by the peace
officer who told us we could sit there for 5 minutes. What right
does he have to limit my freedom to 5 minutes? If it was my right
under the Charter to sit there, peaceably demonstrating my
objection to being poisoned, for 5 minutes, why was it not my right to
sit there for 5 hours? If I had elected to go to trial
and had the luxury of ten months to prepare, I am
sure I would have found a lot more evidence, perhaps in CEPA, the
Endangered Species Act, the
Water Protection Act and elsewhere of other laws being broken and
regulations being
bent. For example, personal
correspondence with Senior Administrators at the Pesticide Approvals
Branch reveals that the government usually has a policy of restricting
pesticide usage within 30 metres of open waterways. Although the
following data
requested from the Insect Control Branch has not yet been supplied, I
can
certainly report having
received numerous complaints of applicators failing to follow
wind-speed (a violation of the Environment Act) and temperature
guidelines (a violation of the permit) and
notification procedures, and
failing to turn off fogging equipment in the presence of people;
clearly a violation of Section 11 of the
Environment Act (M.R.
94/88 R), Requirements of a permit-holder: A person
operating under a provincial pesticide use permit shall By the way, just in case you were under the delusion that a single buffer zone substantially protects you, the Environment Act also defines "fogging" to mean "the use of a pesticide by the production of very fine droplets which are intended to remain suspended in the atmosphere for a significant length of time and drift with the wind." Defence of Necessity Were I to have pled
Not Guilty to these charges I would have used the defence of
Necessity. My lawyer tried to tell me that it wouldn't
work. He said, "Well, for one thing, you have to have a belief
that your action really is going to make them stop." So what's
the problem? He said, "Well, for another thing, you have to have
tried every other possible means." So, I would like to
conclude this explanation by demonstrating for you the extent to which
other means have been tried, personally, collectively, and
historically. History Lesson You may have been wondering why
you
hadn't heard much about this issue until West Nile virus arrived on the
scene. A review of the Clean Environment Commission's
Report of 1982
will reveal that permits as we know them today and buffer zones were
introduced following recommendations of the CEC. As we have just
seen
above, and as is openly acknowledged by City Councillors, in Chambers
even, buffer zones really don't protect people, especially those most
sensitive populations, but they do have the effect of appeasing the
public who don't want to be fogged, much as the fogging itself has long
been acknowledged to be a not-very-effective placebo--except that
placebos are benign. Even before the CEC hearings, politicians
knew it did not work. "We accept that it doesn't work, but it
makes some of our voters feel we're doing something. One could
call it spraying for 'psychological reasons'." (Bill Norrie, p
29, Cities
Under
Siege by Irene Paparo-Stein) Page 118 of the Report of Civic Environment Commission discusses Baygon. I bring it up as an example of how little things have changed. "The Federal Government officials, responsible for pesticide registration and testing, present at the hearings gave evidence to the Commission that Baygon is environmentally acceptable for aerial spraying when used in accordance with authorized dosage directions and application procedures for this purpose. Nevertheless, the possiblity exists that exposure to aerial spraying may adversely affect persons in a high risk category, particularly those persons with respiratory diseases and those with an unusual sensitivity to the chemical. The Commission does not consider this sufficient reason for disallowing aerial spraying with the chemical since one can avoid exposure without undue hardship." Irene Paparo-Stein tells us that, "In 1981 following the aircraft spraying of the City of Winnipeg with Baygon, twenty-one stillbirths were recorded. These infants organs grew externally on their bodies! Investigation showed the unprecedented number pointed to environmental causes. " (p150, Cities Under Siege) Pesticide concerns did not disappear in the years following the CEC hearings. Much more unrest must have preceded the striking of the 1991 City of Winnipeg Task Force on the Use of Chemical Pesticides. Again, I refer to a rather dated document as evidence of 2 things. 1) Very little has changed. 2) When the government gets advice that it doesn't want to follow; it buries it. The recommendations of this Task Force, which followed extensive and costly public consultation, were completely ignored. Many of those concerns mentioned are still quite relevant today. Consider these comments for example. "No one actually knows the extent of pesticide damage to the population of Winnipeg" (p 14) "One key flaw of the current system identified by the Federal Pesticide Registration Review process is that product testing focuses on active ingredients rather than the full formulation of what will be applied in the field." (p 13) If the City of Winnipeg is to continue exposing its citizens to toxic chemicals it must develop an accurate system of measuring human health impacts and costs. (p 14) It gets better. "The Task Force is not convinced that residential fogging for mosquito adulticiding has been demonstrated to be effective or safe for human and environmental health." and "Considering the amount of public disagreement that exists on health risks, a moratorium on residential fogging would be well advised." (p 20) On page 16, the document states, "Clearly the City of Winnipeg will have to develop an environmental impact testing battery to determine products with the least destructive environmental impact. This test battery should include: 1. Effects on key non-target species 2. Ground and surface water pollution 3. Environmental fate of both active and break-down products 4. Bio-accumulation The City Entomologist advised me yesterday that none of these effects have ever been monitored. Letters Very important people
have been writing to very important people. Please read this letter
from Pat
Martin, MP to Federal Minister of Health Ujjal Dosanjh. Andrew Basham writes to
MLA Rob Altemeyer, MP Pat Martin, City Councillor Harvey Smith, Premier
Gary Doer and Mayor Sam Katz, including the following attachments: Mosquito
Control---Ten Myths 040109.doc In the days and weeks leading up to and immediately following my arrest, I also delivered a steady stream of correspondence and phone calls to numerous levels of government, consistently requesting to meet with those having the authority to call off the fogging. After forcing a meeting with the Minister of Health (who signed the emergency health order) on July 15th, we were put off by his refusal to accept responsibility for the removal of buffer zones. Several more days
went by while we made repeated and urgent requests to meet with those
who were
responsible for that decision and who had the authority to overturn
it. Finally, we were granted a meeting
(on July 19th at 5 pm) with Medical Officers of Health, the Executive
Director of Manitoba Health, the Deputy Minister of Conservation and
others, only to be told that our views would not be considered, the
peer-reviewed research and government documents we had supplied would
not be considered, and our Human Rights would not be considered.
On the morning of July 19th, I sent a letter
initiating proceedings with the Manitoba Human Rights Commision.
On July 21st, this letter was sent to
Premier Gary Doer, and on July 28th, this letter was sent to
Prime Minister Paul Martin, federal Ministers of Health and
Justice, and others. Please tell me, after 6 pm on the day that my personal buffer zone was going to be ignored, after weeks (following years) of putting intense pressure on the government, what else could I have possibly done to stop the fogging? If there is something else within my means to do that I have not thought of doing, please tell me what it is. Please tell me because I am tired of these ridiculous games of shoot the messenger and blame the victim. Please tell me because I cannot be poisoned anymore and I cannot stand by and do nothing while fetuses, children, women, seniors and others with MCS are being poisoned, night after night, for interminable weeks. And if you are unable to come up with something within my power that I could have done to defend my buffer zone and make this ridiculous poisoning stop, then you cannot, in good conscience, grant anything in this case except an absolute discharge.
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