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CANADIAN CHARTER OF RIGHTS AND FREEDOMS - Availability of Charter protection - Natural persons

Wednesday, November 20, 2019 @ 8:10 AM  


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Appeal by the patient’s parents as her substitute decision makers from a decision dismissing her application for an order rescinding the certificate of medical death filed by the respondent and a declaration that she was not dead because she was alive according to the precepts of her Christian faith and therefore entitled to continue to receive medical treatment. She also challenged the constitutionality of the determination and definition of death. The application judge dismissed the application primarily on the basis that the appellant was not a bearer of Charter rights and the respondent, as a private party, was not acting as an agent of government and that the Charter therefore did not apply. The appellant, while on a ventilator, suffered brain death. Based on the common law definition of death, she was considered dead. The appellant asserted a religious obligation not to acquiesce in the removal of life support as long as her heart is beating. Her central submission was that the common law’s acceptance of neurological determination of death and the legislature’s implicit reliance on it in statutes, without providing accommodation for religious communities that rejected total brain death as constitutive of death, violated the appellant’s rights under s. 2(a) of the Charter. The appellant’s heart had now stopped, and her appeal was thus moot.

HELD: Appeal dismissed. Although the application judge erred in his analysis, his ultimate conclusion that the appellant’s claim, as brought by her parents, could not succeed was upheld. The application judge erred in concluding that the appellant could not be a subject of Charter rights. On the exceptional facts of this case, it was appropriate to assume the appellant was a subject of Charter rights. Where an appellant’s status as a subject of Charter rights depended on the outcome of the substantive Charter rights claim, it was appropriate to assume for the purposes of the analysis that the appellant was a subject of Charter rights and proceed to address the substantive question. The appellant did not establish that the respondent was performing a governmental function or acting as a government agent. The respondent did not, therefore, owe any duties to the appellant under the Charter, and the application judge made no error in this regard. The constitutional status of the Vital Statistics Act, and the nature of a physician’s responsibilities under the Act, would be better left to a future case in which there was a proper record explaining how a physician’s duties to treat a patient were thought to flow from the physician’s statutory obligations. The application judge mischaracterized the appellant’s claim as a matter of protection from interference with worship. Although the record was sparse, it was sufficient to establish that the appellant held the beliefs attributed to her by her father, that these beliefs were sincerely held, and that they had the requisite nexus with religion to come within the protection of s. 2(a) of the Charter. Absent a finding, however, that there was an obligation to accommodate the religious conviction that a person who had suffered brain death was not dead, the appellant had not advanced any theory as to how she could bring herself within the protections of the Charter. The application judge also erred in this analysis, both with respect to common law and Charter values methodology generally, and specifically with respect to the application of freedom of religion and other relevant principles. Given the deficiencies in the record, whether a common law rule should be crafted to provide accommodation for persons whose religious convictions could not accept neurological criteria for death, was a question that must, ultimately, be left for another case. The court would not, on this record in a moot appeal, attempt to determine whether such a change to the law was within the institutional capacity of courts to make incremental changes to the common law or was the type of far-reaching change that must be left to the legislature.

McKitty (Litigation guardian of) v. Hayani, [2019] O.J. No. 5134, Ontario Court of Appeal, D.H. Doherty, B. Miller and D. Paciocco JJ.A., October 9, 2019. Digest No. TLD-November182019007