Is an Ontario woman dead or is she alive?

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition

Taquisha McKitty's daughter.

The case concerning a woman who has been declared brain dead by a Brampton hospital is heading to the court of appeal. The issue at hand is the definition of brain death.

Taquisha McKitty (27) of Brampton Ontario was declared brain dead on September 20, 2017, after having a cardiac arrest on September 14 related to a drug overdose. On October 17, Hugh Scher, the lawyer for her family, asked the court for more time for medical tests to prove that Taquisha is alive.

On June 26, 2018 Ontario Superior Court Justice, Lucille Shaw, ordered that McKitty was to have the Life-Support withdrawn in a month.

McKitty's family appealed the decision preventing the removal of life-support and challenging the brain death designation.

In the lower court decision Justice Shaw decided that McKitty was dead and that the Charter of Rights and Freedoms did not apply to McKitty, because it only protects “persons,” and because McKitty is clinically brain dead, is not legally a “person.”

Hugh Scher

Scher is arguing in the appeal, that McKitty’s Charter rights were breached in order to pronounce her dead. "To say that she doesn't have Charter rights because she is dead is putting the cart befre the horse." Scher also said:

“The Court’s predetermination of Taquisha’s death to justify non-application of the Charter of Rights and Freedoms ... dehumanizes Taquisha as a non-person from the outset,” 

“Taquisha is an individual under the law deserving of Charter protection.”

Scher told CBC news that in some jurisdictions Taquisha would be considered alive. CBC news reported:

"Taquisha remains alive in Nova Scotia, New York, New Jersey and elsewhere, but according to [Ontario Superior Court] is dead in Ontario."

CBC news reported, the family believes that Taquisha is alive. She continues to move and she is breathing.