Vaccine

By judgment of 8 June 2023, the Supreme Court of Canada dismissed the appeal filed by a patient suffering from terminal illness who had been removed from the high priority waiting list to receive a life-saving organ transplant on account of her refusal to get the COVID vaccine.

The applicant had taken all other vaccines required by the policy of the hospital but had refused to get the COVID vaccine because she deemed it was “experimental” in nature and thus violated her conscience. She had already challenged the vaccine-requirement before the Alberta Court of Queen’s Bench and the Alberta Court of Appeal, alleging that the hospital policy in this respect was in breach of the Canadian Charter of Rights and Freedoms. However, as explained in a post published on 21 November 2022, the courts held that the COVID-19 vaccine requirement did not engage the Charter. Particularly, the Court of Appeal held that the applicant’s alleged conscientious belief in bodily autonomy could be addressed under Section 7 of the Charter, which deals with the right to life, liberty and security; against this background, the Court then rejected the applicant’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.

In conclusion, the Court highlighted that this was “not the first-time medical judgments about allocation of scarce resources have been made in the face of competing needs. While such decisions are doubtless exceedingly difficult, they nevertheless must be made. In this case, the Charter does not apply to the respondents’ exercise of clinical judgments in formulating pre-conditions to [organ] transplant, including requiring vaccination against COVID-19 in the wake of the pandemic [...] 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. In the circumstances of this appeal, while Ms Lewis has the right to refuse to be vaccinated against COVID-19, the Charter cannot remediate the consequences of her choice”. After the dismissal of the applicant’s request to appeal, the above judgment is now final.

Reference: Annette Lewis v. Alberta Health Services, et al., Supreme Court of Canada, 8 June 2023.

Full text of the decision available at scc-csc.lexum.com en