Tuesday, February 12, 2019

Ontario court will issue decision in McKitty "Brain Death" case.

Alex Schadenberg
Executive Director - Euthanasia Prevention Coalition.

Taquisha McKitty with daughter
Taquisha McKitty, of Brampton, who was declared brain dead in September 2017, after a cardiac arrest related to a drug overdose, died of natural causes on December 31, 2018.

On February 11, the Ontario Court of Appeal announced that they will issue a decision in the case, even though McKitty has died.

McKitty was declared brain dead on September 20, 2017, after having a cardiac arrest on September 14. On October 17, 2017, 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On June 26, 2018 Ontario Superior Court Justice, Lucille Shaw, ordered that McKitty was to have the Life-Support withdrawn in a month.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 stated 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 argued in the court of appeal, last December, that McKitty’s Charter rights were breached in order to pronounce her dead. Scher stated:

"To say that she doesn't have Charter rights because she is dead is putting the cart before the horse."

“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 the Globe and Mail, that due to the extreme cost and complexity associated with court cases, like this one, that it is unlikely that this case, whatever the decision, will be appealed to the Supreme Court of Canada.

The McKitty case proves that Canada needs an organization that funds lawyers who take cases that are central to the public interest.

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