This Alberta Court of Appeal (“ABCA”) case involved a Plaintiff that suffered from a progressive and debilitating condition that required an organ transplant. As the ABCA stated, it was a virtual certainty she would not survive without the transplant, but there was also no guarantee that the organ transplant would extend the Plaintiff’s life. The Plaintiff refused to get vaccinated for COVID-19, and the organ transplant program (the “Program”) at the hospital required patients to be vaccinated for COVID-19 prior to transplantation.
The Plaintiff, was amongst other things, seeking a declaration that the vaccine requirement violated her Charter rights, such as freedom of conscience under section 2(a); right to life, liberty and security of the person under section 7; and right to equality under section 15.
The court of first instance found that the Program’s COVID-19 vaccine requirement (the “Vaccine Requirement”) did not engage the Charter, and therefore did not analyze the constitutionality of the Vaccine Requirement.
The ABCA went over the Program in detail, explaining how it was run through a committee composed of physicians and other health professionals. Ultimately, this committee assessed whether a patient was viable for an organ transplant in the program. There were 3 status groups: Status 0, 1 and 2. Status 0 being the least urgent to receive an organ, but possibly needing it in the future, Status 1 meaning a patient was stable, and met the criteria for transplantation and would benefit from it, and Status 2 meaning the highest priority, and the patient was deteriorating and would most benefit from transplantation.
The Plaintiff was placed on Status 2 in October 2020. The Plaintiff had also been assessed to possess unique medical characteristics that made finding an organ donor difficult. She remained on Status 2 until November 2021 without finding a suitable donor, and then was placed on Status 0 because of her refusal to be vaccinated for COVID-19.
The ABCA went through various factors that the Program viewed as relevant in denying Status 2 (and thereby high priority to receive an organ) to the Plaintiff. Amongst many factors, the ABCA regarded the “significant morbidity and mortality risk that COVID-19 presents to unvaccinated and highly immunosuppressed [organ] transplant patients” and the “scarcity of organ donors in context of other vaccinated candidates who could also benefit from a given donor organ” (at para 15).
The Court’s Analysis:
Ultimately, the ABCA found that the main question to answer in this case was “whether one discrete requirement – namely, that [the Plaintiff] obtain a COVID-19 vaccination – attracts Charter scrutiny” (at para 20). To find this, the ABCA first determined the nature of the Vaccine Requirement, which would then assist their determination of whether the Charter applied.
The ABCA quoted a Supreme Court of Canada (“SCC”) case, Eldridge v British Columbia (Attorney General),  3 SCR 624 that stated that “only government action engages the Charter, where (assuming legislation is not at issue) the party in question is either an apparatus of the government or because the party is engaging in governmental function or activity” (at para 22). The ABCA agreed with the Chambers Judge in that the Defendant physicians were not engaging in a government function. It was not the nature of the entity performing the impugned act that determined Charter applicability, it was the nature of the activity. The ABCA found that the Defendants “in exercising their clinical judgment in formulating pre-conditions for [organ] transplantation, were not implementing a specific government policy or program” (at para 24). Ultimately, clinical decisions, which oversaw a myriad of clinical and medical factors, were found by the ABCA to not be government action. The Plaintiff, rather, had argued that the Vaccine Requirement was government action through development and implementation of the policy from the top-down from AHS.
Conclusion of the ABCA:
The ABCA stressed that “this is not the first-time medical judgments about allocation of scarce resources have been made in the face of competing needs” (at para 74). In this decision, the Charter did not apply to the Defendants’ exercise of clinical judgments in formulating pre-conditions to organ transplantation, which included the Vaccine Requirement during the pandemic.
However, the ABCA did conduct a brief Charter analysis, detailed below, which was an aside to the ultimate decision above.
The ABCA’s Charter Analysis:
The ABCA had already found that the clinical judgment of the physicians constituting the Program that placed the Plaintiff from Status 2 to Status 0 did not attract Charter scrutiny. Therefore, the Charter analysis was inconsequential to the decision. However, the Charter analysis is concisely broken down as follows:
- Section 2(a) – Freedom of Conscience and Religion
The Plaintiff had argued that the Vaccine Requirement offended her conscience, arguing that she was being threatened, under duress, to take an experimental medical treatment or face the loss of her life, which was an affront to her conscience and belief in free will (paras 37-38). The ABCA found that concerns about conscientious belief in bodily autonomy were better addressed under section 7 of the Charter.
- Section 7 – Right to Life
The ABCA stated that “in order for a claimant to establish a deprivation of a section 7 right, a sufficient causal connection must exist between the state action and the prejudice suffered” (at para 45). The ABCA found that the Plaintiff’s case had no such causal connection. The ABCA found that “it is one thing to assert that the state is unlawfully prohibiting one from accessing life-saving treatment; quite another for the Plaintiff to selectively choose which treatment criteria she will comply with” (Ibid). The ABCA found that the Plaintiff’s refusal to get vaccinated was an autonomous decision and aspect of medical self-determination, and it is well understood that a patient’s decisions can result in serious risks or consequences, including death.
- Section 7 – Liberty
The right to liberty and security of the person guarantees competent adult individuals’ ability to direct course of their medical care by making decisions regarding their own bodily integrity. The Plaintiff had argued that it was coercive to ask patients like her to take a required pre-transplant COVID-19 vaccine when the alternative was death, and consent given would necessarily be made under duress (at para 51). The ABCA found that the Plaintiff did not have the liberty to insist on medical treatment while refusing to abide by medically appropriate pre-conditions. As the right to liberty protects “fundamental personal choices”, these decisions are protected from state interference only where “they implicate basic choices going to the core of what it means to enjoy individual dignity and independence” (at para 53).
- Section 7 – Security of the Person
The Plaintiff had argued that the Vaccine Requirement infringed her security of the person rights under the Charter. The ABCA laid out the test for this right from the SCC case Carter v Canada (Attorney General), 2015 SCC 5 [Carter]. Carter found that section 7 security of the person is engaged by state interference that causes “serious psychological suffering” (at para 64). The ABCA stressed that the Plaintiff’s stress caused by uncertainty of whether she would receive a potentially life-sustaining organ transplant was foremost a result of there being insufficient cadaveric organs to match her specific medical situation. Therefore, the ABCA found that it was inappropriate to hold the government accountable for harms brought about by third parties that were not acting as agents of the state. Given that any psychological stress that the Plaintiff incurred was not “state imposed”, which is required for a section 7 Charter right to be breached, the Plaintiff’s security of the person rights was not breached by the Defendants.
- Section 15 – Equality Rights
The ABCA laid out the 2-part test for when section 15 of the Charter is breached:
- The challenged law or government action creates a distinction, on its face or in its impact, on the basis of an enumerated or analogous ground, and
- The distinction imposed a burden or denies a benefit in a discriminatory manner, by having the effect of reinforcing, perpetuating, or exacerbating a disadvantage (at para 63).
The ABCA found that the Plaintiff’s section 15 claim failed on the first part of the test, and any distinction created by the Vaccine Requirement was not based on an enumerated or analogous ground (ie. race, national or ethnic origin, colour, religion, sex, age or mental or physical disability). The ABCA found that the Plaintiff’s COVID-19 vaccine status was “not who she is. It is not an immutable personal characteristic, nor is it one that is changeable only at unacceptable cost to personal identity” (at para 67). The ABCA stated that the Plaintiff’s choice to get vaccinated against COVID-19 was a choice, personal, fluid, made at a moment in time and based on available information and often in response to specific circumstances and influences (at para 68).
Nielsen Beatty, Associate
Grey Wowk Spencer LLP