Alberta’s Court of Appeal dismisses case against COVID-19 vaccine requirement for organ transplant

Alberta Health Services’ COVID-19 vaccination requirements for organ transplant patients do not impede the Charter of Rights and Freedoms, Alberta’s Court of Appeal has ruled.

According to a decision published on Tuesday, appellant Annette Lewis suffers from a “progressive” and “debilitating” condition that requires an organ transplant.

She has not been able to get an organ transplant to date because she refused to be vaccinated against COVID-19 prior to the procedure. As a result, her doctor has labelled her as “inactive” on the organ transplant waiting list.

Lewis claims that the COVID-19 vaccination requirement violates her Charter rights, specifically the freedom of conscience, life, liberty and security of a person, and equality rights. Lewis claimed she was “being threatened” to take an “experimental medical treatment” or die, which is a “complete affront” to her conscience and free will.

She asked the Court of King’s Bench to declare the COVID-19 vaccine requirement ineffective because it violated her Charter rights, but the case was dismissed by a judge in July. She then filed an appeal shortly after.

Lewis argued to the Court of Appeal that the judge made a number of errors while considering her application. She asked the Court of Appeal to make the same declaration against the COVID-19 vaccination requirement.

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But three Court of Appeal judges dismissed Lewis’ appeal, saying the COVID-19 vaccination requirement did not infringe on her Charter rights nor did the Charter apply to COVID-19 vaccination policies.

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The COVID-19 vaccination requirement also did not meet the criteria of discrimination under the Charter, according to the judges. Lewis’ vaccination status is not a personal identity but a choice.

“The unfortunate reality is this: Ms. Lewis is dying because she has a terminal illness… The COVID-19 vaccine requirement is not a prohibition on access to medical treatment at all; it is part of the medical treatment,” the judges wrote.

They also said Alberta did not deprive her of exercising her right to refuse the COVID-19 vaccines and the consequences for this decision aren’t caused by AHS.

“The state has not deprived Ms. Lewis of exercising her autonomous right to refuse to be vaccinated against COVID-19, which refusal is consistent with her right to refuse any medical treatment,” the judges wrote in their decision.

“The consequences that flow from her autonomous decision to refuse the COVID-19 vaccines were not caused by the respondents… It is well understood that a patient’s decisions can result in serious risks or consequences, including death.”

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Appellant’s lawyer considering Supreme Court appeal

In an emailed statement, the Justice Centre for Constitutional Freedom (JCCF) said it is disappointed in the Court of Appeal’s decision to dismiss Lewis’ case.

“We are deeply disappointed with today’s decision. Ms. Lewis has fought against this discriminatory policy not only for herself but for all transplant candidates who are similarly being discriminated against,” said Allison Pejovic, Lewis’ lawyer.

“We will review the decision further and consider an appeal to the Supreme Court of Canada.”