McKitty case: Ontario Court of Appeal decides that religious beliefs are important in brain death determination.

Alex Schadenberg

Executive Director, Euthanasia Prevention Coalition

Taquisha with her daughter.

Taquisha McKitty, of Brampton was declared brain dead on September 20, 2017, after a cardiac arrest on September 14. McKitty died of natural causes on December 31, 2018.

Taquisha's family challenged the declaration of death at the Ontario Superior Court. On June 26, 2018 Ontario Superior Court Justice, Lucille Shaw, decided that McKitty was legally dead and ordered her life-support withdrawn in 30 days.

McKitty's family appealed the decision to the Ontario Court of Appeal.

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 was clinically brain dead, she was not legally a “person.”

Hugh Scher

At the Court of Appeal, Hugh Scher, the lawyer for the family, argued 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.”

Yesterday, the Ontario Court of Appeal issued a decision, in McKitty, even though the case was technically moot after Taquisha died of natural causes. According to the family of Taquisha Mckitty:

The Ontario Court of Appeal ruled that religious values and beliefs are essential to who we are as human beings and to the manner by which we chose to live our lives. The court has put off however the question of whether or not religious beliefs can be relied on to alter the common law definition of death. 

Taquisha's parents

Today’s court decision overturns the reasons given in the lower court and emphasized the importance of religious freedom, diversity and equality in Canada. Taquisha McKitty’s father Stanley Stewart brought this court challenge on his daughter’s behalf. He states as follows:

If a person can’t re​ly on their most sacred religious values and beliefs at the very moment of their death when they would most expect to derive comfort from them, one is left to wonder what is the value of a constitutional protection of religious liberty and equality. Courts and legislatures will need to address this mischief of the law in the future.

Death is legally and medically determined by employing one of two sets of criteria. Cardio-respiratory death is determined by the complete cessation of cardio-respiratory function. Neurological death is determined by the complete cessation of all neurological function. Both are legally and medically acceptable means to determine death throughout Canada. 

What we were asking is for the court to apply basic constitutional protections of life, equality and religious freedom that are enshrined in laws in jurisdictions like New York state, New Jersey, California, and Illinois states Taquisha’s father Stanley Stewart. 

The notion tha​t Taquisha McKitty would be considered alive in New Jersey where her religious freedoms are respected but would be considered legally and medically dead in Toronto, Ontario, only a hundred miles away is extremely troubling and must be corrected by lawmakers, states Stewart. 

The law mu​st change to respect and accommodate religious difference in the definition and determination of death if basic Canadian values of pluralism, diversity and religious liberty are to flourish, states Toronto lawyer Hugh Scher who represented the McKitty family in court as well as other families across Canada.

May Warren, reporting for the Toronto Star interviewed ethicist, Trudo Lemmens, a professor and Scholl chair in health law and policy at the University of Toronto who called the ruling "a sophisticated judgement in the discussion of what the definition of death means." He stated:

It’s important, he added, that the appeal “court recognizes that the definition of legal death is not just a medical fact,” but involves “value judgments about the determination of when somebody is no longer declared to be a person.”

This gets to an “ongoing debate” about “who counts as a human being,” he added.

Decisions related to ones personal beliefs must be respected, and yet science should be the determiner of medical truth. The problem arises when someone, who is not dead, is declared legally dead.

Link to the article in the Law Times.