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Shaw ruled that while Ontario does not have a statutory definition of death, physicians in the province and across the country define death by the cessation of neurological functions.Asked to consider whether the common law definition of death violated the values underpinning the charter, such as Mc Kitty’s religious beliefs, the court noted that it was being asked to break new ground.His family argued that his heart and lungs were still functioning and that under Jewish law, he was still alive and should therefore continue to receive the benefit of mechanical intervention.While the Ouanounou family still hasn’t heard whether an Ontario Superior Court judge will make a decision in their son’s case – which will no doubt affect other Jewish patients in the future – a different judge from the same court ruled on June 26 that the Christian beliefs of Taquisha Mc Kitty should not impact the medical decision over whether to remove her from life support.
“The common law definition of death as including brain death is not inconsistent with the charter value of religious belief to believe in the soul and to manifest that belief.
The issue has attracted the attention of the news media as well as advocacy groups, including the Council on American-Islamic Relations. Religious Discrimination Prohibited Title VII and the Colorado Anti-Discrimination Act (CADA) both prohibit employment discrimination on the basis of religion.
These laws protect against offering less favorable terms or conditions of employment, such as pay, job assignments, promotions, training, fringe benefits, etc., as well as prohibiting workplace harassment and retaliation based on religion.
In a 111-page judgment that touched on the common law definition of death, religious beliefs, charter rights, charter values and even on the concept of the soul, Judge Lucille Shaw ruled that Mc Kitty is brain dead and could be removed from mechanical ventilation.
She suspended the order pending a 30-day appeal period, during which the Mc Kitty family can take the case to a higher court.