A woman suffering from an idiopathic condition requiring an organ transplant challenged the legality of the measure that imposes COVID-19 vaccination as a pre-transplant requirement for patients on the waitlist.
The plaintiff submitted that the refusal to take the vaccination is not only based on personal convictions but also on a demonstrated medical exemption. In an effort to remain active on the transplant waitlist without having to be vaccinated against COVID-19, the plaintiff sought a declaration that the vaccine requirement is of no force or effect because it violates her rights under the Charter of Rights and Freedoms — specifically, freedom of conscience under Section 2(a), the right to life, liberty and security of the person under Section 7, and the right to equality under Section 15.
The judge of first instance dismissed the application on the basis that the COVID- 19 vaccine requirement did not engage the Charter. In particular, the Court accepted the submissions by the medical specialists that being unvaccinated against COVID- 19, in the absence of a valid medical exemption supported by expert consultation, is a contraindication to organ transplantation for several reasons, including the following:
- the significant morbidity and mortality risk that COVID-19 presents to unvaccinated and highly immunosuppressed transplant recipients;
- the risk that an unvaccinated transplant recipient would pose to other [organ] transplant recipients during routine post-operative care (e.g., in clinic and in physiotherapy);
- the demonstrated safety, both in initial studies and now surveillance data, of the currently approved and available COVID- 19 vaccines, which present negligible risk to [organ] transplant candidates;
- the attenuated/ineffective response and resultant protection if the vaccine is administered after transplant; and
- the now published and demonstrated benefit of COVID- 19 vaccination before transplant vs. after transplant.
By decision no. 2203-0163AC of 8 November 2022, the Alberta Court of Appeal dismissed the appeal against the above decision. With regards to the claim related to the freedom of conscience and religion, as enshrined in Section 2(a) of the Charter, the Court found that, while the scope of the latter provision is broader than freedom of religion, extending to the protection of strongly held moral and ethical beliefs that are not necessarily found in religion, a conscientious belief in bodily autonomy can be addressed under Section 7 of the Charter which deals with the right to life, liberty and security. Hence, the claim based on the alleged violation of Section 2 is dismissed.
With regards to Section 7 of the Charter, the Court considered that the right to life is endangered where the law or state action imposes death or an increased risk of death on a person, either directly or indirectly. Based on the above, it rejected the plaintiff’s claim that imposing mandatory vaccination would cause an increased risk of death because vaccine requirement is not a prohibition on access to medical treatment, but it is part of the medical treatment itself. Hence, by refusing to get vaccinated, the plaintiff is exercising the autonomous right to refuse to receive medical treatment. With regards to the right to liberty, the Court considered that Section 7 guarantees competent adult individuals the ability to direct the course of their medical care by making decisions regarding their own bodily integrity. Based on the above, the Court found that the plaintiff has freely made, and will continue to be free to make, fundamental personal choices without any interference by the state or by the hospital. With regards to the right to security, while the plaintiff submitted that the COVID- 19 vaccine requirement causes serious psychological suffering and emotional stress, the Court found that Section 7 only covers psychological stress imposed by state activity. In the case at stake, the plaintiff’s anguish was caused by her own refusal to get vaccinated, and it has nothing to do with the state.
Finally, with regards to the right to equal treatment and protection enshrined in Section 15 of the Charter, the Court found no evidence that the pre-transplant COVID-19 vaccine requirement discriminates on the basis of any enumerated ground in s 15(1), namely “race, national or ethnic origin, colour, religion, sex, age or mental or physical disability”, nor on the basis of any of the four grounds recognized by the Supreme Court of Canada, namely (i) citizenship; (ii) marital status; (iii) sexual orientation; and (iv) off-reserve residence for Indigenous Peoples.
