Should a religious belief supersede common sense?

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This very long article is about concerns of freedom of religion and its challenge to the medical policies that are accepted by Ontario’s common law (existing laws) and legislation to determine that a person has actually died.

 More particularly, it is about the end of the life of Taquisha Deseree McKitty and it is also about her parents, Stanley Stewart and Alyson Selena McKitty who are her substituted decision makers and the three are also  referred in this article as the Applicants.

This article is also about  the attempt to honour what her parents who as her representatives understood to be her  conscience and her religious commitments, and whether there is a duty on others to accommodate the demands placed on Ms. McKitty by her own religious beliefs.  

  Determining when a person has died usually presents no difficulty. It is most often obvious even to a lay person when a person has taken her or his final breath, and her or his heart has stopped beating irreversibly. Total brain death, and the death of every living cell, typically follows shortly thereafter.

But in circumstances where a patient has been maintained on a mechanical ventilator and during that time has suffered total brain death, things are more complicated. With mechanical assistance, the heart and lungs can keep oxygenating the cells in the body even after the brain has entirely ceased functioning and can no longer direct the heart and lungs. Where mechanical ventilation is provided, organs can continue to perform their ordinary functions. Cells can continue to grow. The body remains capable of fighting off infection and healing wounds. But is the person really alive if their brain isn’t functioning?

 Notwithstanding that a human body can continue this degree of functioning when the heart is still functioning even when the brain is not functioning,  there is a consensus in Canadian medical practice that if total brain death  ( or a neurologically determined death ) has occurred, the human person has legally died. The common law definition is the same: death has occurred where there is either an irreversible loss of cardiorespiratory function or total loss of neurological function. Although there is no Ontario legislation that prescribes a definition of death, several statutes elsewhere are clearly premised on this definition.

Ms. McKitty’s substitute decision-makers (her parents) brought a challenge in McKitty’s name to the constitutionality of the statutory and common law approaches to defining death. Specifically, the claim is that the adoption of neurological criteria to establish the  death  of those persons who hold a  religious belief that life does not end until the heart stops beating (with or without mechanical assistance) which violates such persons’ religious freedom. The representatives of the appellant     ( Taquisha McKitty ) asserted a religious obligation not to acquiesce in the removal of life support as long as her heart is beating. The representatives (her parents) also argued that the law, by accepting neurological criteria to determine death, fails to accommodate her religious obligations and as such, it violates  McKitty’s Charter rights which guarantees everyone their rights to their freedom of religion.

The appellants (parents) sought an order rescinding the certificate of medical death filed by the respondent, Dr. Omar Hayani, and a declaration that their daughter is not dead because she is alive according to the precepts of her Christian faith and therefore she is entitled to continue to receive medical treatment. The appellants (parents) also served a notice of constitutional question, challenging the determination and definition of death. 

The application judge of the Superior Court dismissed the application, primarily on the basis that the appellants are not the bearers of Charter rights and the respondent, as a private party, was not acting as an agent of government and that the Charter benefit therefore did not apply to the |Applicants (parents).

Some weeks after this appeal was argued, the appellant’s(  the girl) heart ceased beating on its own  satisfying the condition for death   according to cardiovascular criteria. The appeal thus became insignificant. Both parties nevertheless requested that this court consider the appeal. The court agreed to do so because of the issue being one that should be dealt with as a decision that can be made and followed in later similar cases dealing with the same kinds of issues.  

McKitty had suffered significant brain damage due to a period of hypoxia (lack of oxygen supply to the brain). She was placed on a ventilator. Initially, her brain   stem was still functioning and she was able to breathe spontaneously. While she was in the hospital, a second hypoxic event resulted in the loss of the ability to breathe without a ventilator. On September 20, 2017, the respondent, Dr. Hayani, a critical care physician at the hospital, conducted diagnostic tests on the appellant’s brain functioning and determined that the appellant met the neurological criteria for death. He completed a  death certificate the next day.

There has been at least one other case before the Ontario courts which had similarly become insignificant before it could be resolved.  The issues presented in this appeal will likely arise again in urgent circumstances. Although the court said t would dismiss the appeal, some correction from this court is needed with respect to the issues of standing, the analysis of s. 2(a) freedom of religion claims, and the methodology for applying Charter values to the development of the common law. It was also desirable for this court to clarify the concept of legal death  at common law. There were some significant shortcomings in the record because the Attorney General of Ontario did not participate in this litigation. Accordingly, some of the issues raised could not be resolved in a oot appeal on this record and must await future litigation or legislation. Nevertheless, there was some correction and direction that this court is able to provide on the pertinent issues raised by all parties in this case.

On September 21, 2019 the appellant’s parents, acting as her substitute decision-makers, sought an interlocutory injunction restraining the respondent from withdrawing mechanical ventilation. The injunction was granted. The underlying application sought various remedies, including an order rescinding the appellant’s death   certificate, a declaration that the appellant was not dead, a declaration that the Consent and Capacity Board has jurisdiction to adjudicate any disputes regarding the appellant’s treatment as well as the determination of her death  and a declaration that the appellant’s Charter rights had been breached. The hospital where Dr. Hayani served as a critical care physician is not a party to the application. Nor is any government actor. However, a notice of constitutional question was served on the Attorney General for Ontario and the Attorney General of Canada, who both declined to participate in the litigation.

The notice of constitutional question in the Superior Court challenged the constitutional validity and applicability of the Vital Statistics Act  and its regulations, particularly s. 21(1) of the Act, and 35(2) of the Regulation with respect to the requirements to determine and certify ddeath in Ontario and the unconstitutional actions of the Respondent in the failure of the Respondent to take into serious consideration the Applicant's religious beliefs as part of the legal process to determine and certify death pursuant to the Canadian Guidelines and the Vital Statistics Act

The appellants sought to invalidate legislation and the common law relating to the definition of death, and replace them with a new definition that allowed for religious accommodation, on the basis that existing law violated the appellant’s (the girl) Charter rights. A Charter rights claim invokes the court’s extraordinary power under s. 52 of the Constitution Act, 1982 to declare law, including legislation, to be of no force or effect.

With the second argument – the Charter values argument – the appellants requested that the court use its inherent power to modify the existing law to require religious accommodation. Whereas Charter rights can only be invoked against legislation and government action, Charter values can be used in litigation between private parties to guide incremental change to the existing laws. 

The distinction between these two arguments for changing the law was explained in Hill v. Church of Scientology in which the court ruled in part;

“When determining how the Charter applies to the existing  law, it is important to distinguish between those cases in which the constitutionality of government action is challenged and those in which there is no government action involved. It is important not to import into private litigation the analysis which applies in cases involving government action.’” unquote

It should be noted that the Charter sets out those specific constitutional duties which the state owes to its citizens. When government action is challenged, whether it is based on legislation or the existing law, the cause of action is founded upon a Charter right. The claimant alleges that the state has breached its constitutional duty. The state, in turn, must justify that breach.

Private parties owe each other no constitutional duties and cannot found their cause of action upon a Charter right. The party challenging the existing law law cannot allege that the existing law violates a Charter right because, quite simply, Charter rights do not exist in the absence of state action. The most that the private litigant can do is argue that the exisiting law is inconsistent with Charter values. It is very important to draw this distinction between Charter rights and Charter values. Care must be taken not to expand the application of the Charter beyond that established by s. 32(1), either by creating new causes of action, or by subjecting all court orders to Charter scrutiny. Therefore, in the context of civil litigation involving only private parties, the Charter will “apply” to the existing  law only to the extent that the existing law is found to be inconsistent with Charter values.

   Because the application judge concluded that the appellants are not a subject of Charter rights, she did not proceed to a substantive analysis of the Charter rights claims. She expressly stated that she declined to make any findings about the appellant’s (the girl) religious beliefs. Nevertheless, in conducting a Charter values analysis in the alternative, the application judge wrongly imported a section 2(a) Charter rights analysis, and made factual findings about the appellant’s religious beliefs. In the course of doing so, the application judge made errors of law with respect to section 2(a) Charter rights analysis and Charter values methodology, as well as palpable and overriding errors of fact with respect to the appellant’s religious beliefs. I will first address the section 2(a) rights errors and the errors of fact in the context of the section  2(a) rights analysis that ought to have been undertaken, and then address the Charter values analysis.

The judge who wrote the decision in the court of Appeal  said in part;

 “The more ultimate question of whether the appellant’s s. 2(a) rights have been limited is better left, however, to a case with a more developed record. Neither would it be appropriate here to assume a first-stage finding that a Charter right has been limited, for the purpose of continuing with a second-stage inquiry into whether a Charter right has been violated. A finding of a Charter rights violation, where the limit in question is prescribed by law, can only be made after a s. 1 inquiry in which it is determined that the limit is not justified. Justification of a limit requires that a court consider the reasons for the limitation. The proper party to supply those reasons and defend the limitation is, in this case, the Attorney General for Ontario. As that party was not before the court, there is no record that would allow for an assessment of the reasonableness of the limit, and I would not do so in this particular moot appeal.” unquote

 Freedom of religion encompasses not only the right to hold beliefs and engage in private or corporate acts of worship, but also it has the right to manifest those beliefs publicly. This is the reason why religious belief is deserving of constitutional protection through its conduct and practices that are shaped by those beliefs.

In order to ensure that society does not interfere with profoundly personal beliefs that govern one’s perception of oneself, humankind, nature, and, in some cases, a higher or different order of being  in which  these beliefs, in turn, govern one’s conduct and practices, the Charter exisits to protects those rights.  For the religious believer, religion shapes the understanding of what is right and what is wrong.  

Many believer’s relationship with God or creation is central to all their activities. It concerns their capacity to relate in an intensely meaningful fashion to their sense of themselves, their community and their universe.  It also affects the believer’s view of society and recognizes the distinction between right and wrong and what is permissible and what is not impermissible, what is mandatory and what is optional.  

It would have been helpful had the evidence of the appellant’s (girl) religious beliefs been more fully developed. There was, for example, no evidence as to whether the religious beliefs propounded by Mr. Stewart on the appellant’s (daughter))behalf were understood to be universally held by Christians, unique to particular Christian denominations such as Baptist and Seventh-day Adventist, or idiosyncratic to the appellant and her family.

Mr. Stewart identified the appellant as a “lifelong Christian” who attended a Baptist church when with him and her grandparents, and a Seventh-day Adventist church when with her mother’s side of the family.

The freedom of religion guarantee, of course, does not depend on whether one’s religious beliefs are shared by one’s coreligionists or indeed by anyone else. A claimant is under no obligation to provide any evidence that these beliefs are held by others. But where, as here, a rights claimant professes membership in a particular religious community, it can be helpful if there was some evidence before the court as to the beliefs of that community, for the purpose of simply helping the judge to understand what the claimant believes. Even where the rights claimant dissents from the beliefs of her community in some respect, the community teachings or precepts can serve as a point of contrast to bring the claimant’s beliefs into sharper focus. Here, for example, the appellant’s end-of-life ethics might have been clarified by contrast with the principle of inviolability or sanctity of life itself that is incorporated into the existing laws.  Although one may never intentionally take the life of the morally innocent, no one is under any obligation to accept every life-extending treatment, no matter how burdensome or futile it can become.

Without adequate evidence, judges will not be well-placed either to provide an adequate description of a claimant’s beliefs, or to understand the significance of the limitation from the perspective of the rights claimant. This  places a judge in a difficult position throughout the constitutional analysis, but particularly when assessing whether a limit on freedom of religion is justified.

The Charter value of religious freedom does not extend to protecting the object of the belief which, in this case, is the soul. The application judge concluded that the appellant sought to protect “not just her belief, but to protect her soul which she believes does not leave the body until the heart stops beating.

 It is not at all clear what the application judge meant by soul or protection of the soul. The appellant’s claim was not framed in these terms. As I understand the evidence of Mr. Stewart, the relevant religious beliefs of the appellant can be summarized as follows. First, a human being remains alive until such time as his or her heart stops beating.

Second, there is a divinely instituted and exceptionless moral norm that one must never intentionally kill a human person, including self-killing and acquiescing in one’s own killing.

Third, ending life support of a person whose brain is dead but heart is beating constitutes intentional killing of a human person.

Fourth, to breach this norm against killing (including acquiescing in one’s own killing) is to choose to defy God and to separate oneself from him.

Her father stated that his daughter had made it clear to him that she wanted to have her life preserved, including through life support measures, so long as her heart was beating. He attributed her opposition to the withdrawal of life support to what he characterized as a Christian theology that their world view and belief has always been that it is not the brain, but the beating heart that determines and is essential to life. The rejection of brain death as a criterion for death was characterized by him as prescribed by her Christian beliefs and faith; Further,  it would be against her fundamental and express religious beliefs to withdraw mechanical ventilation, and to allow the determination of her death by neurological criteria to stand. Accordingly, he asserted that cessation of life support while her heart was still beating would be a wrongful taking of life – it would be murder. It would be just as wrong for her to acquiesce in her killing and for her substitute decision-maker to do so for her.

I have serious doubts that he and his daughter had such a discussion.  It would have been helpful had the evidence of the appellant’s religious beliefs been more fully developed. There was, for example, no evidence as to whether the religious beliefs propounded by Mr. Stewart on the appellant’s behalf were understood to be universally held by Christians. let alone by his daughter.  The father said that it was unique to particular Christian denominations such as Baptist and Seventh-day Adventist, or idiosyncratic to the appellant and her family. The freedom of religion guarantee, of course, does not depend on whether one’s religious beliefs are shared by one’s coreligionists or indeed by anyone else. However, a claimant is under no obligation to provide any evidence that these beliefs are held by others.

But here in this case where, a rights claimant professes membership in a particular religious community, it can be helpful if there is some evidence before the court as to the beliefs of that community in order to help the judge understand what the claimant believes. Even where the rights claimant dissents from the beliefs of her community in some respect, the community teachings or precepts can serve as a point of contrast to bring the claimant’s beliefs into sharper focus.

When Mr. Stewart was asked on cross-examination why he believed his daughter shared his understanding of this particular religious norm, he replied:

“Well, I would say that because that is one, was my view that I was raised on, that life begins with conception, and life ends up when your heart stops beating, and your soul leaves your body. That’s the context of when I was taught as a young man growing up from my family. And that’s the same value system that I’ve passed down to my four children, and my granddaughter as well. So, growing up, that would be the way that I would have instructed my children, or taught them in, in relation to life and death.” unquote

Quite frankly, I don’t think he discussed with his daughter that she would not want the medical apparatus removed if she wSbrain dead.

My wife and I have discussed that issue but we never discussed it with our daughters or grandchildren.

It would have been helpful had the evidence of the appellant’s (girl)religious beliefs been more fully developed. There was, for example, no evidence as to whether the religious beliefs propounded by Mr. Stewart on his daughter’s behalf were understood to be universally held by Christians, unique to particular Christian denominations such as Baptist and Seventh-day Adventist, or idiosyncratic to the daughter and her family.

The freedom of religion guarantee, of course, does not depend on whether one’s religious beliefs are shared by one’s coreligionists or indeed by anyone else.   A claimant is under no obligation to provide any evidence that these beliefs are held by others. But where, as here, a rights claimant professes membership in a particular religious community, it can be helpful if there is some evidence before the court as to the beliefs of that community, simply to help the judge understand what the claimant believes.

Even where the rights claimant dissents from the beliefs of her community in some respect, the community teachings or precepts can serve as a point of contrast to bring the claimant’s beliefs into sharper focus.  In this case,, for example, the dsughter’s end-of-life ethics might have been clarified by contrast with the principle of inviolability or sanctity of life (itself incorporated into the existing laws, and later modified in other cases previously heard.

The application judge also identified competing principles as Charter values, including “a need for certainty, predictability and clarity in the law regarding the determination of death.” In addition to these, she raised concerns about unjustifiably privileging some religions over others, the financial cost of maintaining the appellant in an intensive care unit, and the impact on the organ donation system. The application judge ultimately concluded that the consideration of all of the relevant matters of principle “are beyond the scope of this court to consider but must be addressed if there is to be an accommodation of religious beliefs in the determination of death.”

Although one may never intentionally take the life of any morally innocent person however, no doctor is under any obligation to provide every life-extending treatment, no matter how burdensome or futile that existing life is.   Of course there have been many doctors who have pulled the plug so to say on brain dead patients.

Consider the following rhetorical question;

It is morally right to ask the tax payers to pay the millions of dollars to keep a brain dead patient’s body alive for years so that the patients’ family will be able to visit their  brain dead loved one who is physically alive but totally brain dead?

The Ontario court of appeal ruled that its court was not an appropriate court to determine the jurisdiction of the Consent and Capacity Board. Such a review should be by way of judicial review of an actual decision of the Board by the appropriate court.

This means that this case will be heard by the Consent and Capacity Board.  When I learn what its decision is, I will update this article with that decision.