Who gets to decide when a person is dead?
The medical profession and many lay people accept that someone who is brain dead is legally dead, such that removing them from life support or removing their organs for transplant is not considered to be homicide. But as McKitty v Hayani illustrates, some people have a religious or other belief that a person is alive as long as their heart continues to beat, even if through mechanical assistance. While the issue was ultimately moot in McKitty, the Ontario Court of Appeal stressed that death is not a purely biological fact, but includes profound spiritual and moral dimensions. How can we take these into account in law? Can we accommodate religious belief in the legal definition of death? And at what level of unconsciousness does a person cease to be a rights-holder under the Charter?
Presenter
Professor Erika Chamberlain
Faculty of Law, Western University
Erika Chamberlain, LLB, PhD (Cantab), is Professor and former Dean (2017-2024) at the Faculty of Law, Western University. Prior to joining the Faculty in 2005, she was a law clerk for Mr. Justice Major at the Supreme Court of Canada and was called to the Ontario bar in 2002. Her main research area is torts, particularly the tort liability of police and public authorities. Among her publications, she is the author of Misfeasance in a Public Office (2016), and co-author of Fridman’s The Law of Torts in Canada, 4th ed (2020) and Hogg’s Liability of the Crown, 5th ed (2024). Chamberlain is also a researcher and advocate in impaired driving law and policy, alcohol-related liability and healthcare law. She is a six-time Ironman finisher.
