There is no legal definition of death in Ontario. Hugh Scher says that needs to change.
Scher represents two families from different religious backgrounds – orthodox Judaism and Christianity – who are facing a similar problem; both are fighting to have their loved ones’ death declarations overturned – because they claim under their religious beliefs, they are not dead.
“There is no statutory, legal definition of death in Ontario.” Scher tells CityNews. “All that we are going by here are these medical guidelines that have been established back in 2003 and 2006. They’re not the law. Legislators determine the law, courts determine the law. Doctors can apply medical criteria to determine brain function … but they’re not there to play God”
That’s what he says physicians are doing when they fail to consider the religious beliefs of their patients before ending life support.
A case in point is that of Shalom Ouanounou – a 25-year-old man who was declared brain dead on Sept. 30 after an asthma attack. Last week, an injunction was granted in his case, preventing Humber River Hospital from pulling the plug on his ventilator. The Ouanounou family is challenging the lack of religious accommodation in the definition of neurological death – a concept that is also being challenged in a Brampton courtroom this week.
The case of Taquisha McKitty is raising the same constitutional questions. The 27-year-old Brampton mother was declared brain dead on Sept. 20 and remains on life support at Brampton Civic Hospital.
Her religious beliefs – specifically that she is still alive as long as her heart is beating – are calling into question the extent to which the medical definition of neurological death is applicable and how suitable it is as the final, determining factor for life or death.
In a Nov. 5 affidavit, McKitty’s father Stanley Stewart writes “I was never asked about Taquisha’s religious beliefs, express wishes or values including relative to the withdrawal of treatment of life support.” He adds that “it would be against Taquisha’s fundamental and religious beliefs to withdraw mechanical ventilation, and to allow the determination of death by neurological criteria alone to stand.”
In a supporting affidavit, Bishop Wendell Brereton of the Glorious Church Breakthrough Temple says he believes McKitty’s religious beliefs surrounding life and death can be best characterized, in part as: “death is when the soul leaves the body.”
He adds “Scripture says we are a living soul. A living soul is not just a brain, it is a soul. The breath of life is what animates man not the brain. Without the breath of life, nothing can move or function, with it we have the spark and essence of life.”
He argues that so long as McKitty still breathes, with or without the ventilator, her beliefs are that she is alive
“This is when our faith holds us firm to face challenges of life … to think those can be disregarded and disavowed … I think most Canadians would find that to be upsetting and disconcerting and I think it’s important,” Scher says.