Court cases raise questions about legal definition of death

Two Ontario court cases involving people deemed brain dead are raising questions about whether what constitutes death should be clearly spelled out under Canadian laws.

The issue is at the crux of separate legal battles to keep 27-year-old Taquisha McKitty of Brampton, Ont., and 25-year-old Shalom Ouanounou of Toronto on life support. Both cases involve religious objections to the concept of brain death.

The lawyer representing both families argues the absence of a legal definition of death creates somewhat of a grey area, particularly when it comes to issues such as religious accommodation. Only Manitoba has legislation that explicitly defines death, which it says takes place “at the time at which irreversible cessation of all that person’s brain function occurs.’’

Most other provinces and territories allude to the matter in legislation surrounding organ donation, typically by saying death will be determined according to accepted medical practices, without specifying what those are. But some legal and medical experts say enshrining the definition of death in law wouldn’t change much, nor would it necessarily prevent future court challenges. And imposing a rigid definition could create issues down the road, they say.

“A lot of this stuff is not precisely defined for the simple reason that there are medical standards and medical expertise that in some cases evolve,’’ said Dr. James Downar, who serves on the board of the Canadian Critical Care Society, an association representing critical care physicians. “The fact that something is not defined in law does not mean that it doesn’t have legal backing, as a concept. There are many (instances in law) where it makes reference to accepted medical standards.’’ Hilary Young, a law professor at the University of New Brunswick, said it’s extremely rare for the nature of death to be at the heart of a court case, partly because brain death is widely recognized.

In Quebec, the court was called to weigh in on the issue in the early 2000s in a case involving a fatal car crash. The court had to decide exactly what constitutes brain death in order to figure out whether a woman or her toddler had died first, which would then determine who would inherit.