Alberta Court of Appeal Upholds Covid-19 Vaccine Requirement for Transplant Candidates

Alberta: The Justice Centre is disappointed that the Alberta Court of Appeal decided that the Canadian Charter of Rights and Freedoms does not apply to Alberta Health Services’ and Alberta transplant doctors’ Covid-19 vaccine policy for transplant candidates. Sheila Annette Lewis challenged AHS’ and her transplant doctors’ Covid-19 vaccine policy which required her to receive the Covid-19 vaccines before she could receive a life-saving transplant.

The appeal was heard on Thursday, October 20, 2022, by video-conference. Ms. Lewis argued that the Covid-19 vaccine policy infringed on her Charter-protected rights of conscience, life, liberty and security of the person, and equality rights. Even though the Court of Appeal agreed with the lower court that the Charter did not apply to the policies, it proceeded to issue reasons finding that her Charter rights were not infringed.

Ms. Lewis also argued that the lower court erred in its finding that the Alberta Bill of Rights did not apply to Covid-19 vaccine policies because the Charter didn’t apply. The Court of Appeal did not deal with this ground of appeal or make any findings in respect of it.

This case is under a publication ban. Due to a Court Order, the Justice Centre may not reveal the names of the doctors, the hospital, the city where the transplant program is located, or the name of the organ that Ms. Lewis needs for life-saving surgery.

In support of her Charter and Alberta Bill of Rights arguments, Ms. Lewis filed expert reports from an award-winning immunologist, and a viral immunologist, who is also a vaccinologist. These reports showed that the Covid-19 vaccines are still in clinical trials to assess their safety and efficacy, that they are not effective, and that they have a concerning safety profile. She also filed an expert report from a surgeon with a Master’s degree in Health Care Ethics. This surgeon opined that the benefit of vaccination for Ms. Lewis was so small that it was unethical to require her to get the Covid-19 vaccine prior to her transplant. The existing policies make no allowance for natural immunity. Ms. Lewis notes that AHS will do transplants for patients who are not vaccinated for Covid-19, provided they have a medical exemption.

“We are deeply disappointed with today’s decision,” states Ms. Allison Pejovic, legal counsel for Ms. Lewis. “Ms. Lewis has fought against this discriminatory policy not only for herself, but for all transplant candidates who are similarly being discriminated against. We will review the decision further and consider an appeal to the Supreme Court of Canada.”