In October the Ontario Court of Appeal released its decision in the McKitty v. Hayani case.

McKitty v. Hayani, 2019 ONCA 805 http://www.ontariocourts.ca/decisions/2019/2019ONCA0805.pdf

Despite the fact that Taquisha McKitty’s heart stopped beating on December 31^st 2018 the court agreed to proceed to judgment in the appeal and issue its reasoning.  The appeal was denied, however Justice Miller was scathing in his criticism of the reasoning of the lower court.  (See: https://healthethics.ca/dead-enough/ for some of those arguments.)

Justice Miller agreed that the common law accepts total brain death (neurologically defined death) as death.

26 The current state of the common law is that a person is considered dead where there is either the irreversible cessation of cardiorespiratory function or the irreversible cessation of all brain function.

However, he does not cede defining death to medicine or science:

28 …The criteria for determining whether death has occurred is not a technical question that is indefeasibly the province of the medical profession, to which the common law must defer. The two criteria for death have not been accepted by the common law because medical practice is determinative, but because they have been judged by the common law to provide a sound answer to the question of how to determine whether a person has died…

29 The determination of legal death is not simply, or even primarily, a medical or biological question. The question of who the law recognizes as a human being – entitled to all of the benefits and protections of the law – cannot be answered by medical knowledge alone. Facts about the physiology of the brain-dead patient are needed to determine what obligations are owed to the brain-dead patient, but the enquiry is not ultimately technical or scientific: it is evaluative. Who the common law ought to regard as a human being – a bearer of legal rights – is inescapably a question of justice, informed but not ultimately determined by current medical practice, bioethics, moral philosophy, and other disciplines.

These are fighting words.  The argument is that personhood, and accordingly the rights that attach to a person, are legal concepts subject to legal definition.  Currently that legal definition accords with medical practice in defining death but it need not be so – either because medical practice might change in ways that were not acceptable on legal grounds or because legislation explicitly identified an alternative approach.

The lawyers for the appellant argued, among other things, that the current common law acceptance of brain death as death fails to accommodate religious beliefs that are protected under section 2 of the Charter.  This gives rise to an interesting point – Charter Rights apply to “everyone.”  Justice Shaw in her original judgment in June 2018 said that Charter rights could not apply to McKitty, because, as she was dead, she could not be a bearer of rights.  Justice Miller, in the appeal took a different approach.  He said that the very thing that was the subject of the Charter challenge – the definition of death and whether a brain dead “person” could have rights to religious freedom, could not be used to negate the challenge.  That is, one had to assume that the rights could apply in order to work through the analysis.

This, I think, really opens the floodgates.  It seems reasonable, to me, to imagine that the drafters of the Charter meant it to apply to everyone – all persons, and not to apply to non-persons.  And, of course, when a person dies – there is no longer a person.  (Justice Miller rejects this idea citing precedent back to the “persons” case of 1930, where the Privy Council overturned a Supreme Court of Canada judgment.  The issue concerned the appointment of women to the Senate.  Common law at the time prevented the appointment of women to public office.  But the Privy Council ruled that what was written in the Constitution Act of 1867 was “persons” not male persons and the more inclusive reading was required.) I don’t agree that this is persuasive.

Justice Miller determined that McKitty’s beliefs were protected under Section 2 of the Charter.  But he declined to rule on whether either her charter rights or charter values were unjustifiably infringed by the  common law acceptance of the brain death as death.

103) Given the deficiencies in the record, whether a common law rule should be crafted to provide accommodation for persons whose religious convictions cannot accept neurological criteria for death, is a question that must, ultimately, be left for another case. I would not, on this record in a moot appeal, attempt to determine whether such a change to the law is within the institutional capacity of courts to make incremental changes to the common law or is the type of far-reaching change that must be left to the legislature.

I believe this judgment significantly undermines current practice and generates considerable uncertainty.  The judgment in effect asks for a further case to settle the substantive issues.  This puts considerable pressure on physicians declaring a patient brain dead.  If a family raises issues of religion and religious belief concerning the definition of death a physician may be reluctant to declare a patient brain dead for fear of being embroiled in future litigation.

Robert Butcher November 2019