This week, the Ontario Superior Court ruled on what Justice Lucille Shaw described as “the first instance where the court has been asked to consider the values associated with the common law definition of death.”
In McKitty v Hayani, Ms. McKitty was found to be brain dead by Dr. Hayani, and was set to be taken off of mechanical ventilation; however, her family argued that according to her religious beliefs, death would not occur until her heart stopped beating. Her family contended that based on freedom of religion as protected by the Canadian Charter of Rights and Freedoms, the definition of brain death must include accommodation for those whose religious beliefs do not recognize brain death as death. Counsel for Dr. Hayani, however, claimed that under the common law and Canadian medical definitions of death, brain death is indeed death. As such, Ms. McKitty should be considered dead, and her Charter rights extinguished.
While a complex decision involving both medical and legal analysis of a number of issues, the primary consideration from a civil liberties perspective lies in Justice Shaw’s analysis of the potential infringement of Ms. McKitty’s freedom of religion, through imposing a definition of “death” upon her with which she would not agree. Ruling in favour of Dr. Hayani, Justice Shaw agreed that Ms. McKitty’s Charter rights were extinguished as she met the medical understanding of death, and the Charter only applies to living persons. However, of broader importance is Justice Shaw’s analysis of whether the definition of death itself violates Charter values.
Ms. McKitty’s family argues that in order to fully realize the Charter-protected freedom of religion, the common law definition of death must include the patient’s religious beliefs alongside medical factors. Accordingly, they suggest there should be an accommodation for those who sincerely believe that life is defined by a beating heart, rather than the capacity for consciousness. They cite New Jersey’s Declaration of Death Act as an example, which provides an exemption from a declaration of brain death on the basis of contradictory religious beliefs, instead stating that the definition of death should rely solely on a cardiorespiratory basis when such a conflict arises. Ms. McKitty’s family argues that this exemption more properly reflects the values of the Canadian Charter in protecting freedom of religion.
In response, Justice Shaw relies on the recent Ktunaxa decision of the Supreme Court of Canada, in which the Court failed to find a violation of religious freedom in the construction of a ski resort that the Ktunaxa Nation believed would drive the Grizzly Bear Spirit, a central religious figure, from the land. The SCC held that the Charter protects “everyone’s freedom to hold such beliefs and to manifest them in worship and practice…but does not protect the spiritual focal point of worship.” They thus conclude that the claim falls outside the scope of Section 2(a) of the Charter because the Ktunaxa Nation “are not seeking protection for the freedom to believe in Grizzly Bear Spirit or to pursue practices related to it. Rather, they seek to protect Grizzly Bear Spirit itself and the subjective spiritual meaning they derive from it.”
Similarly, Justice Shaw reasons that in cases like Ms. McKitty’s, the family is “seeking to protect not just her belief, but to protect the soul which she believes does not leave the body until the heart stops beating.” She concludes that “[a]pplying the evidence of Ktunaxa, this would be beyond the scope of 2(a),” because just as religious freedom did not extend to protecting the Grizzly Bear Spirit, it would not extend to protecting Ms. McKitty’s soul, as the object of belief itself. Ceasing mechanical ventilation in cases of brain death, then, does not infringe upon religious freedom, as it does not undermine protection for religious beliefs and practices, it simply does not extend protection to the soul, around which these beliefs and practices may revolve.
McKitty v Hayani, like Ktunaxa before it, raises substantial questions about how we interpret religious freedom, and the implications of separating the beliefs and practices of a religion with the object or focal point of the religion. While Ktunaxa and McKitty both suggest a neat separation between the two, arguably the line between the expression of religion and the object of religion may not be as clear-cut as indicated in these decisions. As Justice Moldaver recognized in Ktunaxa, such an approach runs the risk of reducing religious practices to “empty words and hollow gestures,” as belief and practice, when devoid of the “spiritual focal point of worship,” may lose their spiritual significance.
This blog post was written by a CCLA student. Opinions expressed do not necessarily reflect the views of the CCLA.
 2018 ONSC 4015 at para 234.
 Ibid at para 30.
 Ibid at para 31.
 Ibid at para 205, 207.
 Ibid at 175.
 2017 SCC 54.
 Ibid at 71.
 McKitty, supra note 1 at 239.
 Ktunaxa, supra note 6 at 133.