Ontario’s top court has dismissed an appeal from the family of a brain dead Brampton woman who fought to keep her on life support, in a high profile case that centres around the definition of death. But the court did not rule on the heart of the issue, whether accommodation for religious beliefs should be part of determining when life ends.

Doctors declared then 27-year-old Taquisha McKitty “dead by neurological criteria” after a drug overdose in fall 2017 and recommended she be taken off life support.

Her family, devout Christians who believed that she was still alive because her heart was beating, got an emergency injunction and took the doctors to court to prevent them from removing a mechanical ventilator.

The case doesn’t have an impact on McKitty, whose heard stopped in Dec. 2018 without the removal of mechanical ventilator. She left behind a young daughter.

“Taquisha was able to live and die according to her own religious beliefs,” said the family’s lawyer, Hugh Scher.

“So her rights were respected, the issue is whether that will apply to other people going forward.”

The unanimous decision found that while death is not defined federally or provincially, common law considers someone dead when there is “irreversible cessation” of either cardiovascular or brain function. But, it noted that McKitty’s death rendered the ruling moot, and stated there was not enough information to settle the central issues of her case, whether it’s violation of the right to freedom of religion.

The same questions will likely emerge in other cases, the ruling says, laying out guidelines on how to assess those arguments in the future, and adding the lower court judge made several errors.

“There are some significant shortcomings in the record because the Attorney General of Ontario did not participate in this litigation. Accordingly, some of the issues raised should not be resolved in a moot appeal on this record and must await future litigation or legislation,” the three-judge panel wrote.

“Nevertheless, there is some correction and direction that this court is able to provide.”

The family, who Scher said wanted to “provide guidance to other families and health practitioners,” had hoped the court would go a step further.

“The family is obviously disappointed in the sense that the court didn’t take that extra step of incorporating a requirement of accommodation of religious beliefs as part of the process to determine death, but nor did it preclude that.”

Stanley Stewart, who brought the court challenge on his daughter’s behalf said in a statement through his lawyer:

“If a person can’t re​ly on their most sacred religious values and beliefs at the very moment of their death when they would most expect to derive comfort from them, one is left to wonder what is the value of a constitutional protection of religious liberty and equality. Courts and legislatures will need to address this mischief of the law in the future.”

He had argued that the Charter of Rights and Freedoms requires doctors to make accommodations for religious beliefs in deciding when someone has died.

The appeal court said the judge who heard the family’s application erred in saying the charter does not apply to McKitty because it only protects “persons” and a clinically dead patient is not legally a “person.”

The fact that McKitty was brain dead at the time should not preclude her from challenging the criteria used to declare her dead, the appeal court said.

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“Denying the opportunity to make the argument, on the basis of a criterion whose constitutionality is the subject of the litigation, begs the question that is in dispute,” it said.

Trudo Lemmens, a professor and Scholl chair in health law and policy at the University of Toronto, called the ruling “a sophisticated judgment in the discussion of what the definition of death means,” that “doesn’t close the door” to families with similar beliefs in the future.

It’s important, he added, that the appeal “court recognizes that the definition of legal death is not just a medical fact,” but involves “value judgments about the determination of when somebody is no longer declared to be a person.”

This gets to an “ongoing debate” about “who counts as a human being,” he added.

“We certainly have to realize that these are important questions to ask.”

Arthur Schafer, professor and founding director of the Centre for Professional and Applied Ethics at the University of Manitoba, said similar cases have come up with other religious families, in both Canada and the U.S.

One of the most famous was Florida woman Terri Schiavo, who was the centre of a right-to-die case that eventually involved politicians up to President George W. Bush, before her husband won a legal battle against her parents to remove her from life support.

There was a similar case in the GTA 2018. The family of a 25-year-old Orthodox Jewish man named Shalom Ouanounou won an injunction preventing an Etobicoke hospital from taking him off life support. But Ouanounou’s heart stopped before the court could rule.

The decision in McKitty’s case “is a message to families that the health care system will respect their religious convictions but that at a certain time when further treatment becomes futile in the sense that human personal life has been extinguished, that physicians have the discretion to withdraw life support,” said Schafer.

“This case confirms universal medical practice in Canada.”