Medical - Death. McKitty v. Hayani
In McKitty v. Hayani (Ont CA, 2019) the Court of Appeal considered a challenge to the legal definition of death, in doing so it reviews the current state of the law on ... well, 'death":
(1) The criteria for death at statute and common law
a. Medical practice
 Historically, the single criterion used to determine death medically was cardiorespiratory failure. As a practical matter, this is the simplest test and remains the test that is applied in the vast majority of cases. According to this test, a person is considered dead when the heart and lungs irreversibly stop functioning. However, medical practice developed a second criterion: neurologically determined death. Satisfaction of either criterion is sufficient to determine death.
 The relationship between the two criteria is that absent medical intervention cardiorespiratory failure inevitably results in total brain death. It is brain death that results in “the disintegration of the organism as a whole”: John C. Irvine, Philip H. Osborne & Mary Shariff, Canadian Medical Law: An introduction for Physicians, Nurses and other Health Care Professionals, 4th ed. (Toronto: Carswell, 2013), at p. 425, citing Defining Death: Medical, Legal, and Ethical Issues in the Determination of Death (Washington, DC: President’s Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research, 1981), at p. 58. As explained by bioethicist Patrick Lee, “because the functioning of the brain is necessary for the integration of the human body – it integrates the various cells, tissues, and organs into a single organism – the complete loss of the functioning of the brain results in the complete loss of integration of the human body and death”: Patrick Lee, “Total Brain Death and the Integration of the Body Required of a Human Being” (2016) 41:3 J. Med. Philos. 300, at p. 300.
 Mechanical ventilation has made it possible to maintain cardiorespiratory functioning despite total brain death. With a mechanical ventilator, a person’s heart could be kept beating – and the other organs oxygenated and kept alive – even after total brain death has occurred. In such cases, diagnostic tests are used to establish the occurrence of total brain death.
 Total brain death must be distinguished from other neurological damage that does not constitute total brain death, such as that suffered by persons who are in a minimally conscious state. Nothing less than total brain death constitutes death of the human person.
 The criteria for determining death at law, as the application judge noted, have not been prescribed legislatively either federally or in Ontario. Although the Law Reform Commission of Canada in its 1981 report, Criteria for the Determination of Death (Report 15)(Ottawa: Law Reform Commission of Canada, 1981), at p. 25, proposed an amendment to the Interpretation Act, R.S.C. 1970, C. I-23, to state that “a person is dead when an irreversible cessation of all that person’s brain functions has occurred”, the proposal was never adopted legislatively.
 Some Ontario statutes establish rights, obligations, and powers that are contingent on a person’s death. None establish criteria for determining death, but rather adopt, expressly or implicitly, the criteria used in medical practice. For example, the Trillium Gift of Life Network Act, R.S.O. 1990, c. H.20, which authorizes post-mortem organ transplants, expressly provides that “the fact of death shall be determined … in accordance with accepted medical practice”: s. 7(1). The Vital Statistics Act, R.S.O. 1990, c. V.4, creates a number of obligations consequent to a person’s death, including the registration of death at s. 21, but implicitly leaves the determination of death to the standards of medical practice by requiring the medical certificate of death to be completed and signed by a legally qualified medical practitioner.
 As discussed below, the appellant argues that these statutes and others violate the Charter, and that the respondent’s actions in reliance on these statutes – both in treating the appellant and in completing a certificate of medical death - are therefore legally unauthorized.
c. The common law
The definition of death
 The medical practice of using neurological and cardiorespiratory criteria to diagnose death has been accepted by Canadian courts. In estates litigation, neurological criteria have been accepted in establishing the date of death for succession purposes. In the criminal law context, neurological criteria have been accepted in the analysis of causation of death: see e.g. Leclerc (Succession) v. Turmel,  J.Q. no 2451 (S.C.); and at least implicitly in R. v. Kitching (1976), 1976 CanLII 1418 (MB CA), 32 C.C.C. (2d) 159 (Man. C.A.), leave to appeal refused, 32 C.C.C. (2d) 159n (S.C.C.).
 On the application judge’s review of the law she appropriately found that Canadian medical practice has added the concept of neurologically determined death as a second sufficient criterion for establishing death, and that the common law has concurred with this practice.
 The current state of the common law is that a person is considered dead where there is either the irreversible cessation of cardiorespiratory function or the irreversible cessation of all brain function.
 Counsel for the appellant, however, argues that the state has an obligation to define death through law, and that the common law rule as formulated by the application judge is an abdication: it allows the medical profession an unfettered licence to set the criteria for death. In oral submissions, counsel argued that this passive stance could allow the medical profession to liberalize the definition of death to include not only persons who have suffered total brain death, but also persons with functioning, but severely compromised brains (e.g. the minimally conscious). Counsel argues that by deferring to current medical practice rather than making a definitive declaration of what constitutes death, courts have abdicated the responsibility to ensure that the benefit of the law extends to the most vulnerable.
 This is a serious concern. Nevertheless, it rests on a misunderstanding of the relevant common law rule. The criteria for determining whether death has occurred is not a technical question that is indefeasibly the province of the medical profession, to which the common law must defer. The two criteria for death have not been accepted by the common law because medical practice is determinative, but because they have been judged by the common law to provide a sound answer to the question of how to determine whether a person has died. Although contemporary medical practice accepts total brain death as a specific criterion that allows physicians to declare a patient to be dead, it does not follow that should a different medical practice emerge – for example if physicians were to accept that persons who are minimally conscious meet the medical definition of death – that the common law would be obliged to accept this as well.
 The determination of legal death is not simply, or even primarily, a medical or biological question. The question of who the law recognizes as a human being – entitled to all of the benefits and protections of the law – cannot be answered by medical knowledge alone. Facts about the physiology of the brain-dead patient are needed to determine what obligations are owed to the brain-dead patient, but the enquiry is not ultimately technical or scientific: it is evaluative. Who the common law ought to regard as a human being – a bearer of legal rights – is inescapably a question of justice, informed but not ultimately determined by current medical practice, bioethics, moral philosophy, and other disciplines.