Brain death is death: Ontario court provides important clarification on definition of death

Global Publication July 2018

In a closely watched Ontario Superior Court of Justice decision, Justice Lucille Shaw recently held that a physician could remove the mechanical ventilation of a 27-year-old woman who had been declared dead by neurological criteria. In so holding, Justice Shaw determined that the common law definition of “death” includes brain death as determined by medical criteria published in the Canadian Medical Association Journal (CMAJ guidelines). She also concluded a brain-dead person does not qualify as a “person” who can assert Charter rights.

McKitty v Hayani provides important clarification for physicians, hospitals and health authorities dealing with family requests to keep patients who have suffered brain death on life support in jurisdictions without legislation defining death. It also ensures the definition of death is consistent with medical criteria physicians apply across Canada to declare death.


Ms. McKitty was found unconscious without a pulse and admitted to ICU after receiving emergency treatment that restored cardiac function. She was placed on a ventilator but ultimately sustained significant brain damage.

The respondent physician, Dr. Hayani, and four other physicians concluded Ms. McKitty met the criteria for neurologic brain death. Despite these diagnoses, Ms. McKitty’s family maintained she was alive based on bodily movements they observed while at her bedside. Ms. McKitty’s parents, as her substitute decision makers, sought an injunction restraining Dr. Hayani from withdrawing mechanical ventilation of their daughter. They succeeded in obtaining an interlocutory injunction that continued in effect up until the date of Justice Shaw’s final decision.

Issues before the court

The applicant advanced a number of arguments before Justice Shaw that required her to answer five main questions:

  • What is the common law definition of death?

  • Does Ms. McKitty meet that definition?

  • Does the Charter apply?

  • If not, is the common law definition of death nevertheless inconsistent with Charter values?

  • Does the Consent and Capacity Board of Ontario (CCB) have jurisdiction in situations where the person has been declared dead?

The court’s findings: “death” includes brain death, the Charter doesn’t apply and the CCB has no jurisdiction

First, Justice Shaw concluded death includes brain death, which is to be defined according to the CMAJ guidelines.

Second, Justice Shaw accepted both parties’ expert evidence that Ms. McKitty’s bodily movements originated in the spinal cord, not the brain. She concluded Ms. McKitty was brain dead despite those movements.

Third, Justice Shaw concluded the Charter does not apply to Ms. McKitty because the Charter does not confer personhood on a brain-dead individual. She also concluded the Charter would not apply to Dr. Hayani in declaring Ms. McKitty dead because that was not a government act.

Fourth, Justice Shaw held that the values underlying the s. 2(a) religious freedom guarantee were not engaged because the applicant was seeking to protect not just her belief (that life ends when the heart stops beating as that is when the soul leaves the body), but the object of her belief (the soul), which is beyond the scope of s. 2(a).

In the alternative, if s. 2(a) values were engaged, the competing value of the need for certainty, predictability and clarity in the law regarding the determination of death militated in favour of upholding the common law definition of death as including brain death. Justice Shaw noted the practical implications if the law were to hold otherwise.

She also rejected the applicant’s reliance on New Jersey legislation providing an exemption to the declaration of death based on neurologic criteria for those whose religious beliefs are inconsistent with such a declaration. She noted legislation did not address the significant policy considerations associated with accepting that position and the Ontario government had not taken such an approach.

Finally, Justice Shaw concluded the CCB does not have jurisdiction to resolve disputes between physicians and substitute decision makers where the former has declared a person dead. An individual declared brain dead is not a person for whom any treatment is required as that person is dead, not incapable.

Ultimately, Justice Shaw dismissed the application and vacated the injunction. She suspended the operation and effect of her decision until the 30-day deadline in which to file the notice of appeal expires.


It is important to emphasize the category of patients to whom the McKitty decision applies: patients who have met the criteria for brain death, which includes the lack of capacity for consciousness, lack of capacity to breathe and absence of brain stem function. This is to be distinguished from patients who are in a persistent or minimally vegetative state for whom some brain stem function remains.

While there may be issues the Court of Appeal could grapple with if the decision is appealed, the policy rationale underlying Justice Shaw’s decision is sound. If her decision stands, it will provide important clarification for physicians tasked with declaring patients dead: they can objectively apply the CMAJ guidelines without having to take into account or inquire into the subjective religious beliefs of individuals. It will similarly provide clarity for hospitals and health authorities tasked with the broader systemic implications of indefinitely maintaining mechanical ventilation for patients who have suffered brain death.

British Columbia is one of the many jurisdictions in Canada without legislation defining death. The Human Tissue Gift Act requires only that the death of a person for purposes of a post mortem transplant, be determined by at least two medical practitioners “in accordance with accepted medical practice.” The Vital Statistics Act requires physicians complete a medical certificate following death without further defining when death occurs. Accordingly, the McKitty decision provides important guidance for physicians and health authorities in BC.


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