Oct 2019 Charity & NFP Law Update
A The Court of Appeal decision in McKitty v Hayani, released on October 9, 2019, concerns a freedom of religion challenge to the common law definition of when death has occurred. As the court’s analysis is complicated, only a brief summary of the main issues will be provided. In this case, Taquisha McKitty had suffered total brain death but was maintained on life support, which allowed her heart and lungs to continue functioning. Although the respondent, Dr. Hayani, had determined that Ms. McKitty had met the common law neurological criteria for death, Ms. McKitty’s parents, as her substitute decision-makers, were granted an interlocutory injunction preventing Dr. Hayani from withdrawing life support on the basis that, according to Ms. McKitty’s Christian beliefs, death only occurred when the heart stopped.
Although no Ontario legislation defines “death”, the court affirmed that the consensus of Canadian medical practice and the common law concur that death occurs “where there is either an irreversible loss of cardiorespiratory function or total loss of neurological function.” Ms. McKitty’s parents challenged the constitutionality of this approach to defining death, arguing that this view violated religious freedom, failed to accommodate religious obligations, and violated Ms. McKitty’s rights under the Canadian Charter of Rights and Freedoms (“Charter”). However, the application judge dismissed the application because (1) Ms. McKitty was physically incapable of exercising her Charter rights, and therefore did not fall under the scope of “everyone” under section 2 of the Charter and, as such, was “not a bearer of Charter rights”; and (2) because the Charter does not impose duties on private individuals such as Dr. Hayani who are not state actors.
Although Ms. McKitty had passed away prior to the appeal, rendering the appeal moot, the Court of Appeal considered the matter nonetheless. It upheld the common law definition of death which includes brain death, but also found that a common method of determining death was heart failure. While it found religious beliefs ought to be considered in determining when death has occurred , the Court did not decide whether Dr. Hayani’s declaration of death infringed Ms. McKitty’s Charter rights because this case did not have an adequate evidentiary record, due to the lack of participation by the Attorney General and because it was moot,
The Court of Appeal dismissed the lower court’s conclusion that Ms. McKitty was not a bearer of Charter rights as being overly broad, stating that many people are unable to exercise many of their Charter rights due to impairment, but that this has no bearing on their status as subjects of Charter rights, and that “…at least some of the Charter rights protect not only one’s interest in doing but simply in being. The rights govern how one is to be treated by others. These include, for example, the right not to be deprived of life and the right to equal benefit of the law.” Further, with regard to whether Ms. McKitty fell under the scope of “everyone”, the Court indicated that the lower court ought to have adopted the Privy Council’s approach in Edwards v Canada (Attorney General) by “apply[ing] a presumption of membership in the class (“everyone”) who is to benefit from the Charter.”
Concerning the Charter’s application, the Court found that Dr. Hayani did not owe any duties to Ms. McKitty under the Charter, as it could not be established that Dr. Hayani was performing a governmental function or acting as a government agent. Although the appellants argued that the Vital Statistics Act compelled Dr. Hayani to complete a medical certificate of death and therefore violated Ms. McKitty’s freedom of religion, the Court indicated that the main issue was the continuation of Ms. McKitty’s medical treatment, and left this matter to be decided by a future case.
The Court considered a “Charter rights argument” seeking to use section 52 of the Constitution Act, 1982 to invalidate the law relating to the definition of death and replace it with one that accommodates religious freedoms. In this regard, it found that Ms. McKitty’s beliefs fell within the protection of freedom of conscience and religion under subsection 2(a) of the Charter. In this regard, the Court characterized her religious beliefs to be that life stops when the heart ceases to beat, that stopping life support to stop a heartbeat would amount to intentionally killing Ms. McKitty, and that breaching the rule against killing would be to defy God. However, the Court also held that the question of whether Ms. McKitty’s right to freedom of religion had been limited would be “better left […] to a case with a more developed record.”
The Court also considered a “Charter values argument” whereby the Court was asked to use its inherent power to “modify the common law to require religious accommodation.” Charter values arguments rely on “moral norms, principles, and aspects of well-being associated with the particular provisions of the Charter,” and are used in litigation between private parties to “guide incremental change to the common law.” However, Charter values are “not Charter rights by another name” and while they can change the common law, they cannot change legislation. The Court stated that Charter values should be approached with careful attention to the rules, as “unlike Charter rights, [Charter values] are not taken from a canonical text,” and have no methodology to guide their formulation or resolve priority in a conflict. Again, given the evidentiary deficiencies and that the appeal was moot, the Court concluded that “whether a common law rule should be crafted to provide accommodation for persons whose religious convictions cannot accept neurological criteria for death, is a question that must, ultimately, be left for another case,” and dismissed the appeal.
Although the case lacked the proper evidentiary basis to do a full Charter rights or Charter values analysis and the case was moot, the Court’s distinction between Charter rights and Charter values and elucidation of the Charter values methodology has provided a helpful roadmap for similar cases in the future which are bound to arise.