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defining death

Defining Death – The Court of Appeal Weighs in on McKitty v. Hayani

The abridged version of this article was originally on November 6, 2019 published by The Lawyer’s Daily, part of Lexis Nexis Canada Inc.

How do we know when someone has died? This question has been the subject of debate in Western societies since at least the eighteenth century, and in modern times has become increasingly fraught due to advancements in medical knowledge and resuscitative technology. Historically, the conception of the moment of death was largely based upon cessation of a person’s breathing and heartbeat. However, in recent years most countries have accepted that “brain death” is an additional basis upon which to define death. This has given rise to controversy as to how to define death in, for example, situations where total brain death occurs but a person’s respiratory system and heart are maintained by a ventilator. Is a person in such a situation legally dead? What role should the consensus view of the medical profession play in the law’s determination of this question? Should the person’s religious beliefs be considered and accommodated?1 These issues were the subject of a recent decision of the Court of Appeal for Ontario in McKitty v. Hayani.2

In this case, the parents of the appellant commenced a constitutional challenge on behalf of their daughter after she was found unconscious on a Brampton sidewalk and ultimately determined to be lacking in neurological function and pronounced dead by the respondent, the critical care physician who treated her at the hospital. The appellant asserted that the adoption of neurological criteria to determine that a person has died violates a person’s right to freedom of religion where they hold the belief that death does not occur until the heart stops beating (with or without the assistance of a ventilator). Following this, the appellant asserted that she had a religious obligation to remain on life support so long as her heart continued beating, and further, that the adoption of neurological criteria to determine death failed to accommodate this religious obligation and violated her Charter rights to freedom of religion.

The Court declined to make a determination on the core issues of violation of the appellant’s Charter rights and failure to accommodate her religious obligations given the sparse state of the record3 and the fact that the appeal was moot.4 However, it did weigh in on the legal definition of death and addressed the appellant’s submission that the current common law formulation inappropriately defers to the medical profession.

In assessing the current state of the law with respect to the definition of death, the Court reviewed current medical practice, applicable legislation, and the common law. Referencing various medical texts, the Court noted that the consensus in the medical profession is that death can occur if either (1) the heart and lungs irreversibly stop functioning, and/ or (2) total brain death (as opposed to neurological damage that does not amount to total brain death) occurs. Next, the Court reviewed the applicable legislation and affirmed the application judge’s finding that no federal or Ontario statute defines death, although some implicitly or explicitly adopt the criteria used by the medical profession.

The Court ultimately held that the application judge had appropriately found that the common law recognizes death as a result of both cardiovascular failure and neurological failure. As stated by the Court:

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.5

The Court went on to reject the appellant’s contention that this common law rule amounts to an abdication of the law’s responsibility to protect society’s most vulnerable by failing to set out a definitive declaration of what constitutes death. The Court found that the common law definition of death is not necessarily contingent on the medical definition (as asserted by the appellant) and rather is “inescapably a question of justice, informed but not ultimately determined by current medical practice, bioethics, moral philosophy, and other disciplines”.6  Due to these myriad considerations, the Court opined that a change in the medical consensus regarding the definition of death would not necessarily result in a change in the common law.

The Court was quite critical of the application judge’s reasons with respect to standing and application of the Charter. In fact, in reviewing the appellant’s factum it appears that the Court of Appeal accepted 40 out of 50 of the appellant’s arguments on appeal. Nonetheless, as noted above the Court found itself unable to go the last step of granting the appellant’s appeal, citing the thin state of the record.

On standing, the Court found that the application judge’s reasoning was substantially in error. The application judge had found that the appellant could not be a subject of Charter rights because (1) the appellant was physically incapable of exercising rights, and (2) the framers of the Charter did not intend to extend Charter rights to brain dead patients. The Court rejected this reasoning, finding, in essence, that where the question of a party’s standing is dependent on the outcome of their substantive Charter rights claim, it is appropriate to assume that the appellant has standing and to proceed to address the substantive question. Thus, on the particular facts of this case, the Court found it appropriate to assume that the appellant was the subject of Charter rights.

The Court found that the application judge had made errors of law with respect to section 2(a) Charter rights analysis and Charter values methodology, and well as palpable and overriding errors of fact with respect to the appellant’s religious beliefs.7 The Court went on to set out the proper methodology for determination of the appellant’s Charter rights and Charter values arguments, but declined to make any findings on the merits.

Thus, while the core issue – whether the absence of accommodation for persons who object to the concept of brain death on religious grounds is unconstitutional – will be left to another case, this decision lays the groundwork for a successful challenge with the benefit of a more complete record. While the decision does not appear to necessitate a change in the current practice of hospitals and physicians, this may not remain the case for long.

  1.   Some jurisdictions, such as Israel, New York, and New Jersey, have introduced legislation requiring that an individual’s religious objections to the concept of neurological death be accomodated.
  2.   2019 ONCA 805.
  3.   The Attorney General of Ontario was not a party to the proceeding and evidence was not filed with respect to the applicability of section 1 of the Charter.
  4.   The appellant’s heart stopped beating while the Court’s decision was under reserve.
  5.   Para. 26.
  6.   Para. 29.
  7.   Para, 57.

The authors of this blog are Peter Askew and Charles Wagner. Peter was a partner at Wagner Sidlofsky LLP and a member of the firm’s Estate and Commercial Litigation Groups. Charles is a Certified Specialist in Estates and Trusts and partner at Wagner Sidlofsky LLP.

This Toronto office is a boutique litigation law firm whose practice is focused on estate, commercial and tax litigation. If you are interested in these types of issues we invite you to follow us on twitter.

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This blog is not intended to serve as a comprehensive treatment of the topic. It is not meant to be legal advice. Every case turns on its specific facts and it would be a mistake for the reader of this blog to conclude how it might impact on the reader’s case. Nothing replaces retaining a qualified, competent lawyer, well versed in this niche area of practice and getting some good legal advice.
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