An unvaccinated woman who was removed from the top of the organ transplant list is hoping her case will be heard by Canada’s top court.
In November, three Alberta appeal court judges unanimously affirmed a lower court ruling that clinical judgements are not subject to Charter scrutiny, ending Annette Lewis’ bid to return to the top of the organ transplant list.
This week, Lewis filed a court application asking the Supreme Court of Canada to hear her case against Alberta Health Services (AHS).
Allison Pejovic, the Justice Centre for Constitutional Freedoms lawyer representing Lewis, said her client is nearing “the end of the legal road.”
“She has made the difficult choice to stand against an unethical and unscientific vaccine mandate which has come between her and her chance to survive. We hope the Supreme Court of Canada is interested in hearing this very important case,” Pejovic said in a statement.
Lewis is dying of a terminal illness. She has been challenging the constitutionality of Covid-19 vaccine requirements for transplant candidates put in place by AHS, an Alberta Hospital, and six transplant doctors, for more than a year.
She was unsuccessful at both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal in 2022, with both levels of court finding that the Canadian Charter of Rights and Freedoms does not apply to the Covid-19 vaccine policies of AHS, the Alberta Hospital where she would receive her transplant, or her transplant doctors. Both courts also dismissed her claims under The Alberta Bill of Rights.
According to the JCCF, Lewis’ Supreme Court of Canada Leave Application focuses on the national importance of her case. She hopes the Supreme Court will make definitive findings on whether doctors working within a provincial government transplant program are immune from scrutiny under the Charter and provincial bills of rights legislation.
She’s also asking the court to consider whether government health care providers like AHS can avoid Charter scrutiny of their policies, which are similar to doctors’ policies for transplant candidates, and whether it is constitutional to remove a dying person’s chance at life-saving surgery when she does not agree to take a “novel drug still in clinical trials.”
Finally, Lewis asks the court to clarify provincial health care providers’ obligations under the Charter to patients, the role of the Charter and provincial bills of rights legislation in the healthcare sphere, and whether the Charter protects dying Canadians’ rights to life “without a condition of taking an experimental drug that has caused injury and death.”
In its November ruling, the appeal court said medical judgments must sometimes be made about how to use scarce resources “in the face of competing needs.” The decisions are difficult, but must be made, the court said.
“We are not persuaded this court can, or ought to, interfere with generalized medical judgments or individualized clinical assessments involving Ms. Lewis’ standard of care,” the court wrote.
“While Ms Lewis has the right to refuse to be vaccinated against COVID-19, the charter cannot remediate the consequences of her choice.”
The court also acknowledged that it is a “virtual certainty” Lewis will die without an organ transplant.
The organ Lewis requires and her doctors’ names are under a publication ban.
