Woman Denied Organ Transplant Because of Vaccine Status Asks Supreme Court to Hear Her Case

An Albertan exits a mass COVID-19 vaccination clinic in Calgary, Alta., Thursday, April 22, 2021. THE CANADIAN PRESS/Jeff McIntosh

A terminally ill woman is seeking a Supreme Court of Canada decision on the constitutionality of the COVID-19 vaccine requirement for receiving an organ transplant, says the Justice Centre for Constitutional Freedoms (JCCF).

Sheila Annette Lewis, who is not vaccinated for COVID-19, filed a leave to appeal application this week against Alberta Health Services (AHS) and six doctors who reportedly removed her from an organ transplant list on which she had high-priority status.

JCCF said on Jan. 11 that Lewis has been challenging the constitutionality of COVID-19 vaccination requirements for transplant candidates put in place by AHS for the past year, but was unsuccessful at both the Alberta Court of Queen’s Bench and the Alberta Court of Appeal in 2022. Both found that the Canadian Charter of Rights and Freedoms doesn’t apply to the COVID-19 vaccine policies of AHS, the Alberta Hospital where she would receive her transplant, or her transplant doctors.

Both courts have also dismissed Lewis’s claims under the Alberta Bill of Rights, according to the JCCF.

“Ms. Lewis is nearing the end of the legal road,” Allison Pejovic, a JCCF lawyer and legal counsel for Lewis, said in a press release. “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.”

The JCCF said Lewis’s court application “focuses on the national importance of her case,” and hopes to convince the Supreme Court to give definitive findings on the following:

1. Whether doctors working within a provincial government transplant program are immune from scrutiny under the Charter and provincial bills of rights legislation
2. Whether government health care providers such as AHS can avoid Charter scrutiny of their policies which are similar to doctors’ policies for transplant candidates
3. 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

After Lewis lost her case in the Alberta Court of Appeal last winter, Alberta Premier Danielle Smith questioned the ruling that a transplant candidate must follow mandatory COVID-19 vaccine policies.

“I am seeking a second opinion on that particular case, and I know that there is at least one other case as well,” Smith said at a Nov. 29, 2022, press conference. She told reporters on Nov. 28 that she had also made phone calls to organizations that reportedly have discriminated against unvaccinated residents.

The JCCF said Lewis had “renewed hope for her survival” hearing the premier say she was seeking a second medical opinion with respect to the COVID-19 vaccine policy for transplant candidates.

Following Smith’s announcement, the Alberta hospital’s transplant team contacted Lewis and told her she had 10 days to get the COVID-19 vaccines before they removed her from the transplant program entirely. JCCF said this move would likely make Lewis ineligible for an organ transplant—even if the premier removed the COVID-19 vaccine policy for transplant candidates—unless she started over and re-applied to the transplant program.

The court application noted that without an organ transplant, Lewis’s death “is a certainty.”

“Ms. Lewis does not have time to waste; her health is deteriorating by the day,” JCCF said.

JCCF said there is no guarantee that the Supreme Court of Canada will agree to hear Lewis’s case, noting that the Supreme Court considers an average of between 500 to 600 applications for leave to appeal, and only hears about 65 to 80 cases.

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 Lewis needs for life-saving surgery.