Judge won’t rule if brain dead means legally dead in case of Jewish man

TORONTO — The demise of an Orthodox Jewish man has made it unnecessary to rule on the validity of the death certificate issued when he was declared brain dead, a judge has decided in a case that pitted medical practice against religious values and went to the heart of what constitutes being legally dead.

The decision by Ontario Superior Court Justice Glenn Hainey that the case had become moot upset relatives of Shalom Ouanounou, who had found themselves at odds with the doctors caring for him.

“The case was one of fundamental importance to the Orthodox Jewish community,” said Hugh Scher, the Ouanounou family lawyer. “By declaring the case to be moot despite an ongoing conflict between death certificates, the court has let down members of the Orthodox Jewish, Muslim and Christian communities whose religious beliefs are violated by the application of neurological death rather than biological death as death.”

Scher said on Wednesday he had no instructions on whether to try to appeal.

Doctors at Humber River Hospital in west-end Toronto declared Ouanounou, 25, brain dead in September 2017 after he had a severe asthma attack. The coroner then issued a death certificate, but the family went to court to challenge the certificate. They also won an injunction preventing the hospital from taking Ouanounou off life support.

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In their application, they argued that, according to their religious beliefs, Ouanounou was still alive because his heart was still beating and he was still breathing — albeit with the help of machines. They maintained he should not have been declared dead and wanted a declaration that he was, in fact, still alive as Jewish law considered him to be.

Ouanounou’s heart did finally stop on March 9 — before Hainey could rule. A Jewish doctor issued a second death certificate, recording his death as having occurred on that date, and Ouanounou was laid to rest.

However, the family still wanted Hainey to render a decision on their application in hopes of setting a legal precedent that would clarify the law and prevent a similar conflict for others. Late last week, Hainey declined to decide the issues in a case he called tragic.

“Shalom’s death is now undisputed,” Hainey said. “No party has advanced any argument about what, if anything, turns on the fact that there are two different death certificates.”

Hainey also said another judge had already decided the same issues in a separate case involving a brain-dead Christian woman, Taquisha McKitty, 27, of Brampton, Ont., whom doctors had declared dead over the objections of her family.

The judge in the McKitty case decided the medical profession had established death criteria used across the country, and brain death was one of those conditions. Superior Court Justice Lucille Shaw also said the charter did not apply to a brain-dead person. Shaw’s decision is currently under appeal to Ontario’s top court.

While the two cases are similar, they rest on a “completely different” evidentiary record, Scher said.

“All parties called on the court to resolve the conflict over competing death certificates and over the question of the accommodation of religious difference in the determination of death in the Ouanounou case,” Scher said.

Colin Perkel, The Canadian Press