Brain death ruling challenged

Family cites charter in appealing decision

An Ontario judge erred in ruling the Charter of Rights and Freedoms does not apply to a Brampton woman because she has been declared brain dead, the woman’s family argues in challenging a decision that would have taken her off life support. Taquisha McKitty was 27 when doctors declared her “dead by neurological criteria” in September of last year fol- lowing a drug overdose.

McKitty’s family turned to the courts to prevent doctors from taking her off life support, saying her Christian faith defines death as the cessation of heartbeat, not of brain function.

An Ontario Superior Court judge ruled against them over the summer, saying the charter does not apply to McKitty because the document only protects “persons” and McKitty, because she is clinically brain dead, is not legally a “person.”

McKitty’s family is asking Ontario’s highest court to overturn the decision, set aside her death certificate and refer any dispute about her treatment to the Consent and Capacity Board, an independent tribunal.

Lawyers representing McKitty’s doctor, meanwhile, say the family’s appeal relies on evidence that was rejected by the lower court and misstates a number of facts. They say the judge correctly found that brain death is death in the eyes of the law.

The appeal is expected to be heard in Toronto on Wednesday.