Appeal court to rule in case involving legal definition of death

A judge has decided that the Taquisha McKitty case, which looks at the definition of death in Ontario, will continue its journey through the Ontario Court of Appeal.

Taquisha McKitty has been dead for a few weeks, or for 18 months - depending on who you ask

Taquisha McKitty was declared brain dead, but her family fought to keep her on life support, arguing that she was still alive. (Instagram)

A case looking at the legal definition of death in Ontario will continue its saga through the Ontario court system.

Last week, it was announced that the Ontario Court of Appeal will make a decision in the case of Taquisha McKitty — despite the fact that all parties involved in the protracted legal battle now agree that she has died.  

McKitty's family had fought to keep her on life support after she went into cardiac arrest and was declared brain dead in Sept. 2017, arguing that she showed signs of life and she was alive as long as her heart was beating, according to her Christian fundamentalist beliefs.

She remained hooked up to a ventilator in a hospital intensive care ward for 15 months. Her doctors insisted she had died, while her family maintained she was alive. 

In June, a judge rejected her family's plea to keep her on life support, writing in her potentially precedent-setting decision that the medical profession establishes the guidelines that determine death.

That decision was appealed by McKitty's family and their lawyer, Hugh Scher. When the young woman's heart stopped beating in late January, both sides made submissions on whether they thought the case was now moot.

As of last Thursday, the Court of Appeal has affirmed that they will make a decision on the case — news that was welcomed by Scher. 

"It is of critical importance for the court to determine the question of the accommodation of religious beliefs as part of the legal process to determine and certify death. The law provides little or no guidance on the point to date," Scher wrote in an email to the CBC this week.  

McKitty's case bears a striking similarity to that of Shalom Ouanounou, another deeply religious young person in Toronto who was declared brain dead and whose family fought to keep him on life support.

In the most recent development this past November, a judge declined to rule on whether doctors had an obligation to keep Ouanounou on life support, saying the McKitty decision made in June had already decided the issue. 

It is not known when the appeal decision in the McKitty case will be released.