THE CHARTER’S BLIND SPOT

Part 1 of 3

Section 1: Executive Summary and Introduction

Executive Summary

This paper examines a fundamental defect in the practical operation of the Canadian Charter of Rights and Freedoms: its inability to safeguard citizens when governments outsource coercive action to nominally independent actors.

The analysis centres on the 2023–2024 judicial decisions in Lewis v. Alberta Health Services, in which Alberta courts held that transplant physicians were not subject to the Charter when they denied a life-saving organ transplant to Sheila (Annette) Lewis because she refused COVID-19 vaccination.

The Lewis decisions reveal a constitutional blind spot. During the COVID-19 era, governments at every level dictated medical policy through emergency orders, licensing directives, and centralized protocols. Physicians who attempted alternative treatments or who reported vaccine-injury data faced professional discipline and loss of licence.

Within this environment, the physicians who denied Ms Lewis’s transplant were not exercising free clinical discretion but implementing state-mandated policy. Yet the courts treated them as private professionals beyond constitutional scrutiny.

By misclassifying state-directed actors as private agents, the judiciary effectively allowed governments to circumvent the Charter. The result is a legal architecture in which the state may compel behaviour, delegate enforcement to professionals, and remain insulated from accountability.

The paper advances three principal findings:

1. Functional State Action – Physicians operating under statutory monopoly, funded by public medicare, and bound by government-issued directives satisfy the Eldridge v. British Columbia (Attorney General) “government function” test and should fall within s. 32 of the Charter.

   
   

2. Delegated Coercion – COVID-19 health directives created a vertically integrated command structure that eliminated professional independence; consequently, Charter rights to life, liberty, security of the person, and equality were violated by proxy.

   
   

3. Structural Reform Required – Legislative and judicial reforms must clarify that any person or body acting under statutory authority, government funding, or delegated policy implementation is subject to Charter duties, and that effective remedies must exist for victims of unconstitutional medical or administrative acts.

   
   

The discussion also references the Garnet Harper incident in Ontario (2023), in which an unvaccinated kidney-transplant candidate died after being denied surgery. Though never litigated, that case illustrates the national reach of the same policy regime that claimed Ms Lewis’s life and demonstrates the absence of practical judicial recourse for ordinary citizens facing imminent death.

The paper concludes that the Charter, as currently interpreted, permits lethal violations of rights through bureaucratic delegation. Unless its scope and enforcement mechanisms are re-examined, Canadians remain vulnerable to repetition of these failures in future public-health or emergency contexts.

Introduction

When the Canadian Charter of Rights and Freedoms was proclaimed in 1982, it was heralded as a constitutional guarantee that government power would forever be restrained by the fundamental rights of individuals. Four decades later, the events of the COVID-19 pandemic exposed profound weaknesses in that assumption.

Rights that appeared absolute in theory proved provisional in practice, readily curtailed by regulation, emergency decree, or bureaucratic directive. The death of Sheila Lewis in 2023—after Alberta Health Services and her treating physicians refused to perform a transplant unless she accepted vaccination—has become emblematic of this failure.

This paper contends that Ms Lewis’s case demonstrates not an isolated judicial error but a systemic design flaw in the Charter’s enforcement structure. The Charter applies to “Parliament and government” (s. 32), yet courts have interpreted “government” narrowly, excluding a wide range of actors who implement government policy.

In Lewis, the Alberta courts invoked this narrow view to hold that physicians, though publicly funded and operating within a government-run health authority, were exercising private professional judgment. Consequently, the Charter did not apply, and no constitutional remedy was available.

The flaw is not merely semantic. During the pandemic, governments dictated virtually every aspect of medical practice through binding orders and licensing rules. Doctors who diverged from approved protocols faced suspension or loss of licence.

The functional reality was one of state control over medicine. To describe the denial of Ms Lewis’s transplant as a “private medical decision” ignores that structural reality and absolves the state of responsibility for the predictable consequence—her death.

The same pattern emerged across Canada. In Ontario, the widely reported death of Garnet Harper following a vaccine-based transplant refusal underscores that such decisions were systemic, not exceptional.

Numerous sworn testimonies before the National Citizens Inquiry detailed similar coercion, censorship, and punishment of medical professionals who attempted to deviate from government protocols. These testimonies confirm that by 2021 the physician’s role had effectively merged with that of a state administrator enforcing public-health policy.

This paper proceeds from the premise that when government compels action through regulation, funding, or licensing power, the acts of those who execute that compulsion must be regarded as acts of government. Anything less permits the state to do indirectly what it may not do directly.

The analysis that follows is organized in eleven substantive sections.

Section 2 traces the hierarchical control of medicine in Canada during COVID-19.

Section 3 reconstructs the legal reasoning of the Lewis decisions.

Section 4 demonstrates the inconsistency of those rulings with Supreme Court jurisprudence, notably Eldridge v. British Columbia (Attorney General).

Sections 5 through 8 draw upon testimony and documentary evidence to show that physicians were instruments of government policy, not independent professionals.

Sections 9 and 10 propose legislative and judicial reforms to close this constitutional loophole.

Section 11 concludes that the Charter, while symbolically powerful, remains operationally fragile until its reach and enforcement mechanisms are recalibrated to meet modern forms of state delegation.

Section 12 examines how we can reclaim accountability and the promise of the Charter.

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Section 2: Government Control of Medicine in the COVID-19 Era

2.1 From Public-Health Emergency to Administrative Control

Between 2020 and 2023, Canada’s health-care system operated under an emergency command architecture that fused legislative, executive, and professional authority. The federal government declared a national public-health emergency through the Public Health Agency of Canada Act and the Quarantine Act; every province and territory invoked its own emergency statutes, granting health ministers and Chief Medical Officers of Health extraordinary powers to issue binding orders.

These measures were not merely advisory. They displaced ordinary clinical discretion and substituted centrally imposed protocols for what had previously been individualized medical judgment.

The combined effect was the transformation of a nominally pluralistic medical system into a unified regulatory hierarchy—a structure within which physicians acted as agents of government policy.

2.2 Federal Direction and the Vaccine Mandate Framework

Health Canada and PHAC

Health Canada controlled product authorizations and effectively monopolized treatment options. Only therapies approved under its Interim Order regime could be lawfully imported or promoted. By design, this excluded early or off-label treatments.

The Public Health Agency of Canada (PHAC) issued nationally standardized guidance that provincial ministries then transposed verbatim into binding directives.

Financial Leverage

The federal government reinforced compliance through fiscal mechanisms: cost-shared transfer agreements under the Canada Health Act, vaccine-procurement contracts, and “safe-restart” funding conditions. Provinces that diverged risked funding claw-backs or loss of federal indemnities.

The result was uniform adoption of identical vaccine requirements and hospital policies across the country.

2.3 Provincial and Territorial Control

Chief Medical Officers of Health (CMOHs)

Each province’s CMOH wielded sweeping emergency authority to issue mandatory public-health orders under statutes such as Alberta’s Public Health Act and Ontario’s Health Protection and Promotion Act.

These orders governed hospital access, visitor policies, and vaccination requirements for both staff and patients. Physicians were bound to comply as a condition of licensure and hospital privileges.

Regulatory Colleges

Provincial Colleges of Physicians and Surgeons translated government orders into enforceable professional obligations. They issued policy statements warning that “misinformation” or deviation from public-health guidance could constitute professional misconduct.

Several doctors who prescribed unapproved therapies or questioned vaccine safety were suspended or subjected to fitness-to-practice investigations. This established a climate of coercive conformity.

Regional Health Authorities

Entities such as Alberta Health Services (AHS), Ontario Health, and British Columbia’s Provincial Health Services Authority operated as direct administrative arms of government. They promulgated internal directives—effectively ministerial orders—mandating vaccination for transplant eligibility, surgical access, and employment.

Within these systems, individual hospitals and transplant programs lacked discretion to contravene provincial policy.

2.4 Professional Suppression & Loss of Clinical Independence

The concentration of power during the pandemic extended beyond infection control to the control of professional speech. Physicians who attempted to report adverse vaccine reactions or to document alternative treatment outcomes faced disciplinary action or termination.

Sworn testimony before the National Citizens Inquiry in 2023 and 2024 described an environment in which doctors were instructed that “public criticism of government policy” would be considered “conduct unbecoming.”

Consequently, the classical model of an independent medical profession—one that mediates between science and state—collapsed into a regime of bureaucratic compliance. Clinical independence, the ethical prerequisite for individualized care, ceased to exist in practice.

2.5 Transplant Policy as an Instrument of Enforcement

By mid-2021 every major transplant centre in Canada had implemented a COVID-19 vaccination requirement for both recipients and, in some provinces, living donors. These requirements originated not from individual clinical assessments but from provincial and federal coordination through the Canadian Blood Services / Canadian Transplant Society advisory networks. The resulting policies were uniform nationwide.

In this environment, the decisions that led to the deaths of Sheila Lewis (Alberta, 2023) and Garnet Harper (Ontario, 2023) were not acts of independent professional discretion. They were the administrative execution of state-approved policy under threat of disciplinary sanction for non-compliance. Yet, as the Lewis judgments illustrate, courts continued to characterize such acts as private medical decisions beyond the Charter’s reach.

2.6 Consequences for Charter Accountability

The pandemic governance structure demonstrates how governments can circumvent constitutional oversight through delegation. By embedding coercive policy within professional regulators and publicly funded institutions, the state ensured both obedience and legal insulation. When challenged, it could argue—as Alberta successfully did in Lewis—that the immediate actors were private professionals, not “government” under s. 32 of the Charter.

This arrangement left Canadians in a constitutional vacuum: rights were theoretically guaranteed but practically unenforceable. The Charter’s promise of protection from governmental overreach was defeated not by overt repeal but by bureaucratic design.

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Section 3: The Case of Sheila (Annette) Lewis — Judicial Misclassification and the Denial of Constitutional Protection.

3.1 Chronology and Procedural History

• June 2021 – August 2022: Ms Lewis, an Alberta resident suffering from a terminal lung condition, was approved for transplant eligibility but removed from the list after refusing COVID-19 vaccination. The requirement was issued by Alberta Health Services (AHS) in consultation with the University Hospital transplant program and its attending physicians.

  
  

• September 2022: Represented by counsel, Ms Lewis filed an application for judicial review, alleging breaches of s. 7 (life, liberty and security of the person), s. 15 (equality), and s. 2(a) (freedom of conscience) of the Charter of Rights and Freedoms.

  
  

• July 2022 (QB 2022 ABQB 479): Justice Belzil of the Alberta Court of Queen’s Bench dismissed the application, holding that the Charter did not apply to the physicians’ transplant decisions.

  
  

• November 2022 (2022 ABCA 329): The Alberta Court of Appeal upheld the ruling, finding no reviewable governmental action.

  
  

• June 2023: The Supreme Court of Canada declined leave to appeal. Ms Lewis died shortly thereafter while still ineligible for transplant.

3.2 Key Judicial Reasoning in the Court of Queen’s Bench

Justice Belzil’s decision rested on two propositions:

1. That AHS was a government entity, and therefore subject to the Charter in principle; but

2. That the transplant physicians, in exercising “clinical judgment,” were not acting as government, even when participating in an AHS-operated program.

He characterized the vaccination requirement as “a matter of medical judgment grounded in professional standards,” distinct from “policy decisions of the Crown.” The court declined to engage with the substantive rights arguments, concluding that because the Charter did not apply, there was “no justiciable constitutional issue.”

3.3 Findings of the Court of Appeal

The Court of Appeal endorsed this reasoning. It emphasized that transplant eligibility involves “complex individualized assessments” requiring deference to professional expertise. The court warned that applying the Charter to such decisions could “judicialize medicine” and “destabilize the doctor-patient relationship.” It affirmed that although AHS is a statutory body, the operative decision was made by physicians “exercising independent clinical discretion,” and was therefore private in nature.

3.4 Analytical Faults in the Rulings

A. Misapplication of Section 32

Section 32(1) extends the Charter to “Parliament and government of Canada” and “the legislature and government of each province.” In Eldridge v. British Columbia (A.G.) (1997 SCC 5), the Supreme Court held that non-governmental entities implementing a government program or performing a governmental function are subject to the Charter “in respect of those functions.”

Under this test, the transplant program satisfies every element:

• It is funded entirely through the public health budget;

• It operates within AHS, a statutory health authority created by government;

• Eligibility criteria derive from public-health directives and national transplant guidelines approved by government actors; and

• Participation is not optional for citizens seeking life-saving care.

The Lewis courts nonetheless focused on the identity of the immediate decision-makers (physicians) rather than the public function they performed. This formalistic approach contradicts Eldridge, which expressly rejected such categorical distinctions.

B. Neglect of Eldridge, Dunmore, and McKinney

• In Eldridge, the Supreme Court found that the Charter applied to private hospitals providing publicly funded medical services because they were implementing a government program.

• In Dunmore v. Ontario (A.G.) (2001 SCC 94), the Court held that government can violate Charter rights through inaction or through structural arrangements that effectively exclude a group from protection.

• In McKinney v. University of Guelph (1990 SCC 682), although universities were not found to be government for all purposes, the Court emphasized that where statutory bodies implement specific government programs, the Charter may apply to those functions.

  
  

Had the Lewis courts applied these precedents, they would have recognized that AHS and its physicians, while not government in every respect, were performing a core government function when administering life-saving medical services under provincial law.

C. Factual Error — Assumed Independence of Physicians

Evidence on record and publicly available documentation from AHS demonstrate that transplant physicians were bound by provincial policy mandating vaccination for recipients. Failure to comply would have constituted breach of AHS policy and potential professional misconduct. To label such actors “independent” is to ignore the realities of employment, funding, and regulatory control. The “clinical judgment” invoked by the courts was illusory.

D. Judicial Deference Misapplied

The courts invoked the doctrine of deference to professional expertise to avoid Charter scrutiny. However, deference presupposes a domain of independent expert decision-making. When professional autonomy is eliminated by government directive, deference becomes a mechanism of immunity. The result is a closed loop in which state policy is executed by professionals and then declared non-reviewable because it is “professional.”

3.5 Consequences of Judicial Misclassification

The immediate effect was the extinction of Ms Lewis’s constitutional remedy. The broader consequence is structural: governments may now circumvent the Charter simply by delegating coercive acts to licensed professionals and regulatory bodies. This creates a dual system of accountability—direct state action is reviewable, but delegated state action is not—precisely the condition the Charter was designed to prevent.

3.6 Implications for Future Jurisprudence

If left unchallenged, the Lewis precedent invites governments to expand delegated control into other sectors—education, employment, media—safe from constitutional scrutiny. The Supreme Court’s refusal to grant leave thus represents not merely a missed appeal but a de facto ratification of a doctrine that erodes the practical reach of the Charter.

The result is a jurisprudence of avoidance where the state may act through others and deny responsibility for the consequences.

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Section 4: The Legal Conflict — Lewis vs. Supreme Court Precedent (Eldridge, Dunmore, McKinney)

4.1 The Constitutional Framework of Section 32

Section 32(1) of the Canadian Charter of Rights and Freedoms defines the Charter’s reach: it binds “the Parliament and government of Canada” and “the legislature and government of each province.”

The Supreme Court of Canada (SCC) has repeatedly interpreted this provision purposively: the Charter applies to all actors performing governmental functions or implementing government policy, even when those actors are not formally part of the state.

This purposive interpretation reflects the Charter’s raison d’être—preventing governments from achieving unconstitutional ends through delegation or privatization. The Alberta courts in Lewis ignored that foundational principle.

4.2  Eldridge v. British Columbia (1997 SCC 5)

Facts and Holding

In Eldridge, deaf patients alleged discrimination because provincial hospitals failed to provide sign-language interpretation for medical services. The hospitals argued that they were private, non-governmental entities. The Supreme Court of Canada (SCC) unanimously rejected that claim, holding that the Charter applied because the hospitals were delivering a publicly funded, statutory health-care program.

Principle Established

The Court held that the Charter applies to:

1. Entities carrying out a specific governmental policy or program; and

2. Entities that are statutorily empowered to implement that policy and are substantially controlled or funded by government.

Justice La Forest wrote:

“It would be absurd if governments could evade their Charter responsibilities simply by delegating the implementation of their policies to private entities.”

Application to Lewis

Every element of the Eldridge test is satisfied:

• AHS and the transplant program operate under provincial statute;

• Funding and policy direction are wholly governmental;

• The transplant program implements a core component of the provincial health plan.

The Alberta courts’ refusal to apply Eldridge constitutes a direct doctrinal departure and re-opens the very loophole the SCC closed in 1997.

4.3  Dunmore v. Ontario (Attorney General) (2001 SCC 94)

Facts and Holding

In Dunmore, agricultural workers were excluded from Ontario’s labour-relations regime. The SCC found that the government could violate Charter rights not only by acting but also by structuring legal regimes that effectively suppress rights.

Principle Established

Dunmore expanded the scope of state responsibility:

• Government action includes statutory omissions or institutional designs that make it impossible to exercise rights.

• Where the state creates a legal environment that denies access to constitutional protection, it is responsible for the resulting deprivation.

Application to Lewis

By structuring a medical regime in which transplant programs must follow ministerially approved vaccine directives, and by licensing physicians who are bound to those directives, the state created the very legal structure that extinguished Ms Lewis’s rights. The omission of Charter oversight in that structure is itself a Dunmore-type constitutional wrong.

4.4  McKinney v. University of Guelph (1990 SCC 682)

Facts and Holding

McKinney concerned university professors challenging mandatory-retirement policies. The SCC held that universities, though publicly funded, were not “government” for all purposes because they retained institutional independence.

Principle Established

While limiting the Charter’s reach in that instance, McKinney emphasized that functional analysis—not mere form—determines whether an entity acts as government. When autonomy exists, the Charter may not apply; when autonomy is absent and the entity performs statutory duties, it does.

Application to Lewis

Unlike universities, physicians within AHS lacked institutional independence during the pandemic. They were subject to binding AHS policies, provincial health-minister directives, and College enforcement. The McKinney rationale for exclusion therefore does not apply.  Lewis misused McKinney’s autonomy concept to justify Charter avoidance where no autonomy remained.

4.5 The Pattern of Deviation

Supreme Court Principle	Established Case	How Lewis Contradicts It
Delegated implementation of public programs triggers Charter obligations.	Eldridge(1997)	Treats AHS physicians implementing transplant policy as private actors.
Government liability extends to structural omissions that suppress rights.	Dunmore(2001)	Ignores that the legal design of pandemic health policy foreclosed Charter review.
Functional, not formal, analysis determines state action.	McKinney(1990)	Relies on formal labels (“clinical judgment”) despite total governmental control.

The combined effect is a jurisprudential regression: Lewis resurrects pre-Eldridge formalism, undermines purposive interpretation, and legitimizes constitutional evasion through delegation.

4.6 Broader Doctrinal Implications

The Lewis reasoning, if replicated, endangers constitutional accountability across the public sector. Any government could delegate coercive powers to “independent professionals” or “private administrators” and thereby escape Charter scrutiny.

The SCC’s long-standing commitment to a purposive and generous application of rights, first articulated in Hunter v. Southam (1984 SCC 145), is effectively nullified in this domain.

4.7 Interim Conclusion

The conflict between Lewis and Supreme Court precedent is categorical, not incremental. Where the SCC built a doctrine to prevent governmental evasion, the Alberta courts re-opened the door to it.

The result is that individuals such as Sheila Lewis—who died seeking access to a public medical service—were denied both treatment and constitutional remedy. Unless corrected by higher judicial review or legislative clarification, this precedent entrenches a two-tiered Charter: one that binds only the visible hand of the state while leaving its delegated instruments untouched.