



COURT OF APPEAL FOR ONTARIO

CITATION: McKitty v. Hayani, 2019 ONCA 805

DATE: 20191009

DOCKET: C65690 & M49886

Doherty, Miller and Paciocco
    JJ.A.

BETWEEN

Taquisha Deseree McKitty, by her
    substituted decision makers, Stanley Stewart and Alyson Selena McKitty

Applicant (Appellant)

and

Dr. Omar Hayani

Respondent (Respondent)

Hugh R. Scher, for the appellant

Erica J. Baron, Christine Wadsworth and
    Leah Ostler, for the respondent

Heard: December 12-13, 2018

On appeal from the judgment of Justice M.
    J. Lucille Shaw of the Superior Court of Justice, dated May 26, 2018, with
    reasons reported at 2018 ONSC 4015, 411 C.R.R. (2d) 310.

B.W. Miller J.A.:


TABLE OF CONTENTS

A.

Overview
.
3

B.

Background
.
6

C.

Issues on appeal

8

D.

Analysis
.
9

(1)

The criteria for death at statute and
    common law
.
9

a.

Medical practice
.
9

b.

Legislation
.
11

c.

The common law
.
12

(2)

The appellants status as a
Charter
rights holder

15

a.

The meaning of everyone  capacity to
    exercise rights
.
17

b.

The meaning of everyone  the intentions of
    the framers
.
19

(3)

Application of the
Charter

22

(4)

Charter
rights and
Charter
values
.
24

a.

Charter
rights
.
27

i.

Freedom of religion under s. 2(a)

27

ii.

Section 1: limitations on rights
.
36

iii.

Section 7 and 15(1) claims
.
37

b.

Charter
values - modification of the
    common law
.
37

i.

Charter
values methodology
.
39

ii.

Charter
values and the common law
.
41

iii.

The application judges
Charter
values analysis
.
44

(5)

The jurisdiction of the Consent and
    Capacity Board
.
46

(6)

Leave to appeal costs
.
46

E.

Disposition
.
47



A.

Overview

[1]

This appeal concerns a freedom of religion challenge
    to the medical criteria accepted by Ontarios common law and legislation to
    determine that a person has died. More particularly, it is about the end of
    Taquisha McKittys life, her familys attempt to honour what they understood to
    be her religious commitments, and whether there is a duty on others to
    accommodate the demands placed on Ms. McKitty by her own religious conscience.

[2]

I would uphold the application judges ultimate
    conclusion that Ms. McKittys claim, as brought by her substitute
    decision-makers, cannot succeed. I would, accordingly, dismiss the appeal. However,
    for the benefit of parties to future cases of this nature, these reasons
    explain the analytical approach that should have been followed.

[3]

Determining when a person has died usually presents
    no difficulty. It is most often obvious  even to a lay person  when a person has
    taken her final breath, and her heart has stopped beating irreversibly. Total brain
    death, and the death of every living cell, typically follows shortly thereafter.

[4]

But in circumstances where a patient has been
    maintained on a mechanical ventilator and during that time has suffered total
    brain death, things are more complicated. With mechanical assistance, the heart
    and lungs can keep oxygenating the body even after the brain has entirely
    ceased functioning and can no longer direct the heart and lungs. Where
    mechanical ventilation is provided, organs can continue to perform their
    ordinary functions. Cells can continue to grow. The body remains capable of
    fighting off infection and healing wounds.

[5]

Notwithstanding that a human body can continue
    this degree of functioning, there is a consensus in Canadian medical practice
    that if total brain death (or neurologically determined death) has occurred,
    the human person has died. The common law definition is the same: death has
    occurred where there is either an irreversible loss of cardiorespiratory
    function or total loss of neurological function. Although there is no Ontario legislation
    that prescribes a definition of death, several statutes are clearly premised on
    this definition.

[6]

Ms. McKittys substitute decision-makers brought
    a challenge in the appellants name
[1]
to the constitutionality of the statutory and common law approaches to defining
    death. Specifically, the claim is that the adoption of neurological criteria to
    establish the death of those persons who hold a religious belief that life does
    not end until the heart stops beating (with or without mechanical assistance)
    violates such persons religious freedom. The appellant asserted a religious
    obligation not to acquiesce in the removal of life support as long as her heart
    is beating. The appellant also argued that the law, by accepting neurological
    criteria to determine death, fails to accommodate her religious obligations and
    violates her
Charter
rights.

[7]

The appellant sought an order rescinding the
    certificate of medical death filed by the respondent, Dr. Omar Hayani, and a
    declaration that she is not dead because she is alive according to the precepts
    of her Christian faith and therefore entitled to continue to receive medical
    treatment. She also served a notice of constitutional question, challenging the
    determination and definition of death.

[8]

The application judge dismissed the application,
    primarily on the basis that the appellant is not a bearer of
Charter
rights and the respondent, as a private party, was not acting as an agent of
    government and that the
Charter
therefore did not apply.

[9]

Some weeks after this appeal was argued, the
    appellants heart ceased beating, satisfying the condition for death according
    to cardiovascular criteria. The appeal thus became moot. Both parties
    nevertheless requested that this court decide the appeal. We agreed to do so.
    There has been at least one other case before the Ontario courts which had
    similarly become moot before it could be resolved.
[2]
The issues presented in this
    appeal will likely arise again in urgent circumstances. Although I would
    dismiss the appeal, some correction from this court is needed with respect to
    the issues of standing, the analysis of s. 2(a) freedom of religion claims, and
    the methodology for applying
Charter
values to the development of the
    common law. It is also desirable for this court to clarify the concept of legal
    death at common law. As explained below, however, there are some significant shortcomings
    in the record because the Attorney General of Ontario did not participate in this
    litigation. Accordingly, some of the issues raised should not be resolved in a
    moot appeal on this record and must await future litigation or legislation. Nevertheless,
    there is some correction and direction that this court is able to provide.

B.

Background

[10]

The appellant was found unconscious on a
    Brampton sidewalk and taken to hospital. She had suffered significant brain
    damage due to a period of hypoxia (lack of oxygen supply to the brain). She was
    placed on a ventilator. Initially, her brain stem was still functioning and she
    was able to breathe spontaneously. While she was in the hospital, a second
    hypoxic event resulted in the loss of the ability to breathe without a
    ventilator. On September 20, 2017, the respondent, Dr. Hayani, a critical care
    physician at the hospital, conducted diagnostic tests on the appellants brain
    functioning and determined that the appellant met the neurological criteria for
    death. He completed a death certificate the next day.

[11]

On September 21, the appellants parents, acting
    as her substitute decision-makers, sought an interlocutory injunction
    restraining the respondent from withdrawing mechanical ventilation. The
    injunction was granted. The underlying application sought various remedies,
    including an order rescinding the appellants death certificate, a declaration
    that the appellant was not dead, a declaration that the Consent and Capacity
    Board has jurisdiction to adjudicate any disputes regarding the appellants
    treatment as well as the determination of her death, and a declaration that the
    appellants
Charter
rights had been breached. The hospital where Dr.
    Hayani served as a critical care physician is not a party to the application. Nor
    is any government actor. However, a notice of constitutional question was
    served on the Attorney General for Ontario and the Attorney General of Canada,
    who both declined to participate in the litigation.

[12]

The notice of constitutional question in the
    Superior Court challenges: the constitutional validity and applicability of
    the
Vital Statistics Act,
R.S.O. 1990, c.V-4, and its regulations,
    particularly s. 21(1) of the Act, and 35(2) of the Regulation with respect to

the
requirements
to determine and certify death in Ontario.; and
    the unconstitutional actions of the Respondent in the failure of the
    Respondent to

take into consideration the Applicant's religious
    beliefs as part of the legal process to determine and certify death pursuant to
    the Canadian Guidelines and the
Vital Statistics Act,
R.S.O. 1990,
    cV-4. [
sic
]

[13]

The notice of constitutional question in this
    court is somewhat broader, referencing more legislation and the common law. The
    appellant challenges: the constitutional validity and applicability of the
Public
    Hospitals Act
and its Regulations, particularly Regulation 965, s. 17(1),
    and the
Vital Statistics Act,
R.S.O. 1990, c.V-4, and its regulations,
    particularly s. 21(1) of the Act, and 35(2) of the Regulation, particularly
    with respect to the statutory duty imposed on Doctors to determine and certify
    death in Ontario.; the unconstitutional application of the Common Law to
    determine and define death in a manner that fails to account for and respect
    the individual wishes, values and beliefs of the Appellant, or
Charter
values and the application of the
Charter
to the Appellant and
    Respondent.; and the unconstitutional actions of the Respondent in the
    failure of the Respondent to take into consideration the Appellants wishes,
    values and religious beliefs as part of the legal process to determine and
    certify death pursuant to the Statutory Duty imposed upon Doctors.

[14]

On June 26, 2018, the application judge
    dismissed the application.

C.

Issues on appeal

[15]

The appellant argued that the application judge erred
    in finding that:

1.       death at common law
    includes death by neurological criteria;

2.       the appellant is not a
    subject of
Charter
rights;

3.       the
Charter
does
    not apply to the respondent;

4.       the appellants rights
    under ss. 2(a), 7, and 15(1) of the
Charter
were not engaged; and

5.       the Consent and Capacity
    Board had no jurisdiction over the appellant.

[16]

These issues are addressed below. Although there
    was an additional ground of appeal  that the application judge erred in
    finding that the appellant satisfied the neurological criteria for the
    determination of death  that ground was not pursued in oral argument and there
    is no need for this court to address it. Finally, I will consider the
    appellants request for leave to appeal costs.

D.

Analysis

(1)

The criteria for death at statute and common law

a.

Medical practice

[17]

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.

[18]

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: Presidents 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.

[19]

Mechanical ventilation has made it possible to
    maintain cardiorespiratory functioning despite total brain death. With a
    mechanical ventilator, a persons 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.

[20]

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.

b.

Legislation

[21]

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 persons brain functions has occurred, the
    proposal was never adopted legislatively.

[22]

Some Ontario statutes establish rights,
    obligations, and powers that are contingent on a persons 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 persons 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.

[23]

As discussed below, the appellant argues that
    these statutes and others violate the
Charter
, and that the
    respondents 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

[24]

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
, [2005] J.Q. no 2451 (S.C.); and at least
    implicitly in
R. v. Kitching
(1976), 32 C.C.C. (2d) 159 (Man. C.A.),
    leave to appeal refused, 32 C.C.C. (2d) 159n (S.C.C.).

[25]

On the application judges 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.

[26]

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.

[27]

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.

[28]

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.

[29]

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.

The
    accommodation of religious commitments

[30]

The appellants primary submission, however, is
    not that the common laws acceptance of total brain death as a criterion of
    death is inherently unconstitutional or unjust. The main submission is that the
    absence of accommodation for persons who object on religious grounds to the
    concept of brain death is unconstitutional.

[31]

This challenge to the common law was framed in
    the application in two ways. First, the appellant argued that the respondent violated
    her
Charter
rights by relying on criteria for death recognized by the common
    law  which does not recognize a religious exemption  in making the diagnosis
    that the appellant had died. Second, she argued in the alternative that the
    common law should nevertheless be developed to provide for accommodation of
    religious conscience, such that the appellant would be considered to be living,
    and entitled to medical treatment. The application judge rejected both of these
    arguments.

[32]

The arguments on appeal are addressed below,
    beginning with the preliminary questions of whether the appellant is a subject
    of
Charter
rights, and whether the
Charter
applies to the
    respondent. Thereafter, I address the substantive
Charter
rights
    argument, followed by the
Charter
values argument.

(2)

The appellants status as a
Charter
rights holder


[33]

The appellants central submission is that the
    common laws acceptance of neurological determination of death (and the legislatures
    implicit reliance on it in statutes such as the
Vital Statistics Act
and
Trillium Gift of Life Network Act
), without providing
    accommodation for religious communities that reject total brain death as
    constitutive of death, violates the appellants
Charter
rights. The
    appellant argues that, to be compliant with the
Charter
, the common
    law definition of death must be modified by a legal proposition: where a
    persons religious beliefs preclude acceptance of the neurological determination
    of death, death should be determined only according to cardiorespiratory
    criteria. The result would be that with respect to such persons, until such
    time as the heart stops beating, whether unassisted or through the use of a
    mechanical ventilator, a physician would be precluded from diagnosing or
    certifying death, and the person would remain entitled to the full protection
    and benefit of the law.

[34]

Before the appellants substantive
Charter
argument can be addressed, however, a preliminary question must be addressed: does
    a human being remain a subject of
Charter
rights after total brain
    death? The application judges conclusion was no, but the reasoning was in
    error. As explained below, on the exceptional facts of this case, it is
    appropriate to assume the appellant is a subject of
Charter
rights.
    Where an appellants status as a subject of
Charter
rights depends on
    the outcome of the substantive
Charter
rights claim, it is appropriate
    to assume for the purposes of the analysis that the appellant is a subject of
Charter
rights and proceed to address the substantive question. If the religious
    freedom argument is successful, then she remains a legal person. If it fails,
    she does not. However, as explained below, it is ultimately not possible on
    this appeal to resolve the substantive
Charter
rights issue: this case
    lacks a record that would allow for a s. 1 analysis as to whether the limit
    placed on the exercise of the right is reasonable. Nevertheless, it is
    necessary to address the application judges methodological approach to resolving
    the appellants status, which was substantially in error.

[35]

The application judge provided two bases for
    concluding that the appellant could not be a subject of
Charter
rights,
    both of which I would reject: (1) the appellant was physically incapable of
    exercising rights; and (2) the framers of the
Charter
did not intend
    to extend
Charter
rights to brain-dead patients.

a.

The meaning of everyone  capacity to exercise
    rights

[36]

The first basis for the application judges
    conclusion that the appellant is not a subject of
Charter
rights is
    that the appellant lacks any capacity to exercise those rights. In an argument
    that parallels the Supreme Courts conclusion in
Irwin Toy v. Quebec
    (Attorney General)
, [1989] 1 S.C.R. 927,

that everyone does not
    include corporations, the application judge reasoned that because the appellant
    has no brain stem function, she is unable to exercise any
Charter
rights.

[37]

In
Irwin Toy
, the Supreme Court
    concluded there could have been no intention to include corporations within the
    meaning of everyone in the context of s. 7 of the
Charter
, because
    the rights to life, liberty, and security of the person are premised on bodily existence.
    An artificial entity is physically incapable of exercising these rights. The
    application judge concluded analogously, and by drawing on
Tremblay v. Daigle
,
    [1989] 2 S.C.R. 530, that because the appellant was not able to exercise any of
    these rights and freedoms, she could not come within the meaning of everyone
    to whom the rights are extended.

[38]

This proposition is too broad and must be
    rejected. A great many persons, by reason of immaturity, decline, or other
    physical or mental impairment, have little or no present ability to exercise many,
    if not most, of the rights and freedoms guaranteed by the
Charter
.
    These impairments have no bearing on their status as subjects of
Charter
rights. Furthermore, at least some of the
Charter
rights protect not
    only ones interest in doing, but simply in
being
. The rights govern
    how one is to be treated by others. These include, for example, the right not
    to be deprived of life and the right to equal benefit of the law.

[39]

It is uncontroversial that a person whose body is
    dead is insensate and lacks any present or future capacity to participate in
    any of the human goods protected by the
Charter
. However, for the
    purposes of this litigation, it cannot be determined whether a human person who
    has died according to neurological criteria but not cardiovascular criteria 
    and who asserts that her
Charter
rights preclude the application of
    neurological criteria  is legally dead, prior to conducting the substantive
Charter
analysis that determines whether the application of neurological criteria would
    be unconstitutional.

b.

The meaning of everyone  the intentions of
    the framers

[40]

The second basis for the application judges
    conclusion that the appellant is not a subject of
Charter
rights is
    that a reading of the
Charter
as a whole does not display any
    intention [on] the part of the framers to consider the status of persons
    declared brain dead.

[41]

The application judge is correct that there is
    nothing in the text of the
Charter
addressing the concept of total brain
    death. The text of the
Charter
is entirely silent on the matter. Neither
    were we taken to any extratextual evidence that would suggest that the criteria
    for establishing death formed any part of the deliberations surrounding the
    drafting and enactment of the
Charter
. The question is what flows from
    this.

[42]

The application judge appeared to reason this
    way: (1) the common law pre-dating the
Charter
accepted total brain
    death as a criterion of death; (2) the framers of the
Charter
would
    have been aware of the state of the law in this regard; (3) nothing in the
Charter
purported to change the common law in this respect; and therefore (4) the
Charter
does not confer legal personhood upon someone who is brain dead.

[43]

There are three problems with this analysis. First,
    the
Charter
does not confer legal personality. That is not one of its
    functions. The
Charter
confers constitutional rights on certain
    categories of persons (e.g. everyone or every citizen), but it does not
    address who is a person. Who is recognized as a legal person under Canadian law
    is determined by common law and statute. Those determinations are subject to
    review for their consistency with
Charter
rights, but it is an error
    to draw any inference about the constitutionality of the concept of brain death
    from the fact that the
Charter
does not specifically address it.

[44]

Second, where a common law rule is relied on in
    order to perform a government function, the common law rule is subject to
Charter
rights:
Halpern v. Canada (Attorney General)
, (2003) 65 O.R. (3d)
    161 (C.A.). The mere fact that the common law rule predated the
Charter
,
    and the framers of the
Charter
may have been aware of it and showed no
    intention to change it, is not determinative that the rule is consistent with
Charter
rights.

[45]

Third, the methodology used by the application
    judge has been consistently rejected in constitutional adjudication since at
    least the
Persons Case
:
Edwards v. Canada (Attorney General)
,
    [1930] 1 D.L.R. 98 (P.C.). In the
Persons Case
, the Supreme Court reasoned
    in a fashion similar to the application judge, finding that the term qualified
    persons (those eligible for appointment to the Senate) in s. 24 of the
Constitution
    Act, 1867
could not include women because the common law at the time did
    not permit the appointment of women to public office and it could not have been
    the intention of the framers of the
Constitution Act, 1867
to change
    the common law by making women eligible for appointment.

[46]

In overturning the Supreme Court, the Privy
    Council was similarly focused on what had (and had not) been settled by the
    adoption of the constitutional text: the question is not what may be supposed
    to have been intended, but what has been said:
Persons Case
, at p. 107,
    citing
Brophy v. Attorney General (Manitoba)
, [1895] A.C. 202 (P.C.). Faced
    with an ambiguity in the text as to whether persons indicated male persons only
    or male and female persons, the Privy Council applied a presumption in favour
    of the more inclusive meaning, concluding that the text should be read as
    including male and female persons.

[47]

Similarly, the application judge was here required
    to interpret general terms (everyone or every individual). Uncontroversially,
    the ordinary meaning of these terms exclude persons who have died. But the
    terms themselves, read in context, say nothing whatsoever about the criteria to
    be used to determine death. In circumstances such as these, where a common law
    rule that limits access to the protections of the
Charter
is the very
    law whose constitutionality is impugned, the methodology of the
Persons
    Case
suggests that we apply a presumption of membership in the class (everyone)
    who is to benefit from the
Charter
, for the limited purpose of assessing
    the substantive
Charter
claim that purportedly establishes membership
    in the class. Denying the opportunity to make the argument, on the basis of a criterion
    whose constitutionality is the subject of the litigation, begs the question
    that is in dispute.

(3)

Application of the
Charter

[48]

Dr. Hayani is the only respondent in this
    application. As he is a private party and not a government actor, the
Charter
does not apply to him and cannot impose any duties on him unless, and only to
    the extent that, he is performing some specific government function or acting
    as a government agent:
R. v. Buhay
, 2003 SCC 30, [2003] 1 S.C.R. 631, at
    para. 25. It is not sufficient that he be carrying out some purpose that is
    regulated and for the public good:
Eldridge v. British Columbia (Attorney
    General)
, [1997] 3 S.C.R. 624, at para. 43,
McKinney v. University of Guelph
,
    [1990] 3 S.C.R. 229, at p. 269. The appellant has not established that the
    respondent was performing a governmental function or acting as a government
    agent. The respondent does not, therefore, owe any duties to the appellant
    under the
Charter
, and the application judge made no error in this
    regard.

[49]

However, even if the
Charter
cannot
    impose any duties on a party, the
Charter
may nevertheless bear on legislation
    that does. The analysis therefore needs to continue to ask whether the
    respondents legal obligations to the appellant were imposed by a statute, and whether
    that statute is in some way unconstitutional:
M. v. H.
, [1999] 2 S.C.R.
    3;
Miron v. Trudel
, [1995] 2 S.C.R. 418.

[50]

The appellant raised this argument below, but
    the application judge did not address it. The appellant relies on the obligations
    imposed on the respondent by s. 35(2) of R.R.O. 1990, Reg 1094 (the Regulation),
    enacted under the
Vital Statistics Act
, which requires physicians to complete
    a medical certificate of death consequent to diagnosing someone as having died.
    In this proceeding, the appellant not only sought an order that the respondent be
    restrained from discontinuing her medical treatment, but that the medical
    certificate of death he prepared be rescinded.

[51]

The
Vital Statistics Act
obligates the
    respondent to complete a medical certificate of death and forward it to a
    funeral director. Together with the Statement of Death prepared (usually) by
    family members, it is forwarded by the funeral director to the Registrar
    General, who generates a Death Certificate.

[52]

The respondents actions were this: on September
    20, 2017, he determined that the appellant had suffered total brain death,
    which, according to standard medical practice, meant that the appellant had
    died. He made and recorded his diagnosis. The following day, he completed a
    medical certificate of death, as he was required to do by s. 35(2) of the
    Regulation, made pursuant to the
Vital Statistics Act
.

[53]

The appellant argues that the respondent ought
    not to have completed the medical certificate of death as the statute
    compelling him to do so violated her freedom of religion. As noted above, this
    argument was not addressed by the application judge, and I would not consider it
    for the first time on this moot appeal. The main issue before the application
    judge was the continuation of the appellants medical treatment. The constitutional
    status of the
Vital Statistics Act
, and the nature of a physicians
    responsibilities under the
Act
, would be better left to a future case
    in which there is a proper record explaining how a physicians duties to treat
    a patient are thought to flow from the physicians statutory obligations.

[54]

This is enough to dispose of the
Charter
rights
    arguments. There remains the argument that the application judge erred by not
    amending the common law through an appeal to
Charter
values. Because
    the application judge to some extent confused the methodology for a
Charter
values analysis with the methodology for a
Charter
rights analysis, it
    is necessary to set out the distinction between them.

(4)

Charter
rights
    and
Charter
values

[55]

The appellant advanced two distinct arguments
    with respect to the
Charter
. With the first  the
Charter
rights argument  the appellant sought to invalidate legislation and the common
    law relating to the definition of death, and replace them with a new definition
    that allowed for religious accommodation, on the basis that existing law
    violated the appellants
Charter
rights. A
Charter
rights
    claim invokes the courts extraordinary power under s. 52 of the
Constitution
    Act, 1982
to declare law, including legislation, to be of no force or
    effect.

[56]

With the second argument  the
Charter
values argument  the appellant requested that the court use its inherent power
    to modify the common law to require religious accommodation. Whereas
Charter
rights can only be invoked against legislation and government action,
Charter
values can be used in litigation between private parties to guide incremental
    change to the common law. The distinction between these two bases for changing
    the law was explained in
Hill v. Church of Scientology
, [1995] 2 S.C.R.
    1130, at paras. 93-95:

When determining how the
Charter
applies
    to the common law, it is important to distinguish between those cases in which
    the constitutionality of government action is challenged, and those in which
    there is no government action involved. It is important not to import into
    private litigation the analysis which applies in cases involving government
    action.

In
Dolphin Delivery
it was noted
    that the
Charter
sets out those specific constitutional duties which
    the state owes to its citizens. When government action is challenged, whether
    it is based on legislation or the common law, the cause of action is founded
    upon a
Charter
right. The claimant alleges that the state has breached
    its constitutional duty. The state, in turn, must justify that breach.



Private parties owe each other no constitutional
    duties and cannot found their cause of action upon a
Charter
right.
    The party challenging the common law cannot allege that the common law violates
    a
Charter
right because, quite simply,
Charter
rights do not
    exist in the absence of state action. The most that the private litigant can do
    is argue that the common law is inconsistent with
Charter
values. It
    is very important to draw this distinction between
Charter
rights and
Charter

values
. Care must be taken not to expand the
    application of the
Charter
beyond
    that established by s. 32(1), either by creating new causes of action, or by subjecting
    all court orders to
Charter
scrutiny. Therefore, in the context of
    civil litigation involving only private parties, the
Charter
will apply
    to the common law only to the extent that the common law is found to be
    inconsistent with
Charter
values. [Emphasis in original.]

[57]

Because the application judge concluded that the
    appellant is not a subject of
Charter
rights, she did not proceed to a
    substantive analysis of the
Charter
rights claims. She expressly stated
    that she declined to make any findings about the appellants religious beliefs:
    at para. 228. Nevertheless, in conducting a
Charter
values analysis in
    the alternative, the application judge wrongly imported a s. 2(a)
Charter
rights analysis, and made factual findings about the appellants religious
    beliefs. In the course of doing so, the application judge made errors of law
    with respect to s. 2(a)
Charter
rights analysis and
Charter
values methodology, as well as palpable and overriding errors of fact with
    respect to the appellants religious beliefs. I will first address the s. 2(a)
    rights errors and the errors of fact in the context of the s. 2(a) rights
    analysis that ought to have been undertaken, and then address the
Charter
values analysis.

[58]

In what follows immediately, I set out the
    applicable doctrine of freedom of religion, review the evidence of the
    appellants religious beliefs, and conclude that the appellants beliefs come
    within the protection of s. 2(a). The more ultimate question of whether the
    appellants s. 2(a) rights have been limited is better left, however, to a case
    with a more developed record. Neither would it be appropriate here to assume a first-stage
    finding that a
Charter
right has been
limited
, for the
    purpose of continuing with a second-stage inquiry into whether a
Charter
right has been
violated
. A finding of a
Charter
rights
    violation, where the limit in question is prescribed by law, can only be made
    after a s. 1 inquiry in which it is determined that the limit is not justified.
    Justification of a limit requires that a court consider the reasons for the
    limitation. The proper party to supply those reasons and defend the limitation
    is, in this case, the Attorney General for Ontario. As that party was not
    before the court, there is no record that would allow for an assessment of the
    reasonableness of the limit, and I would decline to do so in this moot appeal.

a.

Charter rights


i.

Freedom of religion under s. 2(a)

[59]

A claimant establishes a limit on the exercise
    of a s. 2(a) right by showing, (1) a sincere belief having a nexus with
    religion; and (2) state conduct that interferes with the ability to act in
    accordance with these religious beliefs in a manner that is more than trivial
    or insubstantial: Guy Régimbald & Dwight Newman,
The Law of the Canadian
    Constitution
, 2nd ed. (Markham: LexisNexis Canada, 2017), at p. 614;
Alberta
    v. Hutterian Brethren of Wilson Colony
, 2009 SCC 37, [2009] 2 S.C.R. 567,
    at para. 32;
Syndicat Northcrest v. Amselem
, 2004 SCC 47, [2004] 2
    S.C.R. 551, at para. 65; and
Law Society of British Columbia v. Trinity
    Western University
, 2018 SCC 32, [2018] 2 S.C.R. 293, at para. 63.

[60]

The breadth of the interests protected by this
    fundamental freedom has been continually stressed from the earliest articulations
    of s. 2(a) doctrine in
R. v. Big M Drug Mart Ltd.
, [1985] 1 S.C.R. 295,
    at pp. 336-37:

The essence of the concept of freedom of
    religion is the right to entertain such religious beliefs as a person chooses,
    the right to declare religious beliefs openly and without fear of hindrance or
    reprisal, and the right to manifest religious belief by worship and practice or
    by teaching and dissemination.



Freedom in a broad sense embraces both the
    absence of coercion and constraint, and the right to manifest beliefs and practices.

[61]

Freedom of religion thus encompasses not only
    the right to hold beliefs and engage in private or corporate acts of worship,
    but also to manifest those beliefs publicly through conduct and practices that
    are shaped by those beliefs.

[62]

The reason why religious belief is deserving of
    constitutional protection was explored in
R. v. Edwards Books and Art Ltd.
,
    [1986] 2 S.C.R. 713, at p. 759: to ensure that society does not interfere with
    profoundly personal beliefs that govern ones perception of oneself, humankind,
    nature, and, in some cases, a higher or different order of being. These
    beliefs, in turn, govern ones conduct and practices. For the religious
    believer, religion shapes the understanding of what is right and wrong,
    permissible and impermissible, mandatory and optional. As expressed by Sachs J.
    of the Constitutional Court of South Africa in
Christian Education South
    Africa v. Minister of Education
, [2000] ZACC 11, 2000 (4) S.A. 757, at
    para. 36:

For many believers, their relationship with
    God or creation is central to all their activities. It concerns their capacity
    to relate in an intensely meaningful fashion to their sense of themselves,
    their community and their universe.  It affects the believers view of society
    and founds the distinction between right and wrong.

[63]

The protection of religious conscience is not a
    matter of protecting lifestyle choices, but of not interfering with what a
    person understands to be an obligation, regardless of whether it is something she
    desires or would much rather avoid. For this reason, subject to such
    limitations as are necessary to protect public safety, order, health, or morals
    or the fundamental rights and freedoms of others, no one is to be forced to act
    in a way contrary to his beliefs or his conscience:
Big M
, at p. 337.

[64]

What, then, were the beliefs of the appellant?

The religious beliefs of the
    appellant

[65]

The record before the application judge on the
    question of the appellants religious beliefs was sparse. The only evidence of the
    appellants religious beliefs came from the fourth affidavit of Mr. Stewart
    (the appellants father), sworn on November 5, 2017, and his cross-examination
    on that affidavit.

[66]

Mr. Stewart identified the appellant as a
    lifelong Christian who attended a Baptist church when with him and her
    grandparents, and a Seventh-day Adventist church when with her mothers side of
    the family.

[67]

Her father stated that the appellant made clear
    to him that she wanted to have her life preserved, including through life
    support measures, so long as her heart was beating. He attributed her
    opposition to the withdrawal of life support to what he characterized as a Christian
    theology: [her] world view and belief has always been that it is not the
    brain, but the beating heart that determines and is essential to life. The
    rejection of brain death as a criterion for death was characterized by him as
    prescribed by her Christian beliefs and faith; it would be against [her]
    fundamental and express religious beliefs to withdraw mechanical ventilation,
    and to allow the determination of her death by neurological criteria to stand.
    Accordingly, he asserted that cessation of life support while her heart was
    still beating would be a wrongful taking of life  it would be murder. It would
    be just as wrong for her to acquiesce in her killing (and for her substitute
    decision-maker to do so for her).

[68]

When Mr. Stewart was asked on cross-examination
    why he believed the appellant shared his understanding of this particular religious
    norm, he replied:

Well, I would say that because that is one,
    was the [view] that I was raised on, that life begins with conception, and life
    ends up when your heart stops beating, and your soul leave[s] your body. Thats
    the  thats the context of, I was taught as a, as a young man growing up from
    my family. And thats the same value system that Ive passed down to my four
    children, and my granddaughter as well. So, growing up, that would be the way
    that I would have instructed my children, or taught them in, in relation to
    life and death.

[69]

It would have been helpful had the evidence of the
    appellants religious beliefs been more fully developed. There was, for
    example, no evidence as to whether the religious beliefs propounded by Mr.
    Stewart on the appellants behalf were understood to be universally held by
    Christians, unique to particular Christian denominations such as Baptist and
    Seventh-day Adventist, or idiosyncratic to the appellant and her family. The
    freedom of religion guarantee, of course, does not depend on whether ones
    religious beliefs are shared by ones coreligionists or indeed by anyone else:
Amselem
,
    at para. 54. A claimant is under no obligation to provide any evidence that
    these beliefs are held by others. But where, as here, a rights claimant
    professes membership in a particular religious community, it can be helpful if there
    is some evidence before the court as to the beliefs of that community, simply
    to help the judge understand what the claimant believes. Even where the rights
    claimant dissents from the beliefs of her community in some respect, the
    community teachings or precepts can serve as a point of contrast to bring the
    claimants beliefs into sharper focus. Here, for example, the appellants end-of-life
    ethics might have been clarified by contrast with the principle of inviolability
    or sanctity of life (itself incorporated into the common law, and later modified
    in cases such as
Rodriguez v. British Columbia (Attorney General)
,
    [1993] 3 S.C.R. 519 and
Carter v. Canada (Attorney General),
2015 SCC
    5, [2015] 1 S.C.R. 331) that although one may never intentionally take the life
    of the morally innocent, no one is under any obligation to accept every life-extending
    treatment, no matter how burdensome or futile:
John
    Keown,
Euthanasia, Ethics and Public Policy: An Argument Against Legalization
,
    2nd ed. (New York: Cambridge University Press, 2018)
, at pp. 38-49 and
    397-404.

[70]

Parties should not assume that judges share or can
    readily understand their religious commitments without assistance. As Prof. Dwight
    Newman recently cautioned in Judicial Method on Rights Conflicts in the
    Context of Religious Identity in Iain T. Benson & Barry W. Bussey, eds.,
Religion,
    Liberty and the Jurisdictional Limits of Law
(Toronto: LexisNexis, 2017)
    245 at p. 257:

[C]ourts within a more secularized society  may
    simply not have sufficiently extensive knowledge about religion. Tests in the
    religious-freedom context are often designed so as to avoid the need for judges
    to inquire into the details of religious beliefs  but some understanding of
    religious beliefs will nonetheless be unavoidable in various contexts. Canadian
    courts have largely not tended to offer discussions of religion that show much
    understanding of religions deep significance to those of faith.

[71]

The failure of courts to accurately describe the
    religious practices and beliefs of parties from the point of view of the people
    whose beliefs they are, has drawn academic criticism: in addition to Newman, see
    Benjamin L. Berger,
Laws Religion: Religious Difference and the Claims of Constitutionalism
(Toronto: University of Toronto Press, 2015); and Howard Kislowicz,
    Faithful Translations? Cross-Cultural Communications in Canadian Religious
    Freedom Litigation (2014) 52 Osgoode Hall L.J. 141.

[72]

Without adequate evidence, judges will not be well-placed
    either to provide an adequate description of a claimants beliefs, or to understand
    the significance of the limitation from the perspective of the rights claimant.
    This places a judge in a difficult position throughout the constitutional
    analysis, but particularly when assessing whether a limit on freedom of
    religion is justified. A clearer evidential record may have prevented the
    application judge from mischaracterizing the appellants evidence.

The application judges s. 2(a)
    errors

[73]

The appellant sought to fulfill what she
    understood to be her obligation, as informed by religious teaching, to observe
    an exceptionless moral norm. As I explain below, the application judge
    mischaracterized the appellants claim as a matter of protection from
    interference with worship: protecting her spiritual focal point of worship
    and object of belief. As the appellants claim was not about protecting the
    object of her worship, or with interference with worship generally, the
    application judge erred in analogizing the claim to the one advanced in
Ktunaxa
    Nation v. British Columbia (Forests, Lands and Natural Resource Operations)
,
    2017 SCC 54, [2017] 2 S.C.R. 386.

[74]

Ktunaxa
presented
    a novel claim under s. 2(a). A First Nation in British Columbia objected to
    government approval of a land development project on the basis that the
    development would, as a side effect, cause the departure of the Grizzly Bear
    Spirit, a spiritual entity believed to inhabit that geographic area. The
    development would thus desecrate a place of great spiritual significance to the
    Ktunaxa. The claim was that the development would remove the basis of [the
    Ktunaxa Nations] beliefs and render their practices futile: at para. 59. The
    Supreme Court majority understood the Ktunaxa to be seeking to protect the
    presence of Grizzly Bear Spirit in Qatmuk. As such, it characterized the
    claim as a matter of using s. 2(a) to protect the object of beliefs and the spiritual
    focal point of worship, the Grizzly Bear Spirit itself: at paras. 70-71. The
    court held that s. 2(a) does not protect the object of beliefs.

[75]

Relying on
Ktunaxa
, the application
    judge concluded the
Charter
value of religious freedom does not
    extend to protecting the object of the belief which, in this case, is the
    soul. The application judge concluded that the appellant sought to protect
    not just her belief, but to protect the soul which she believes does not leave
    the body until the heart stops beating.

[76]

It is not at all clear what the application
    judge meant by soul or protection of the soul. The appellants claim was not
    framed in these terms. As I understand the evidence of Mr. Stewart, the
    relevant religious beliefs of the appellant can be summarized as follows. First,
    a human being remains alive until such time as his or her heart stops beating. Second,
    there is a divinely instituted and exceptionless moral norm that one must never
    intentionally kill a human person, including self-killing and acquiescing in
    ones own killing. Third, ending life support of a person whose brain is dead
    but heart is beating constitutes intentional killing of a human person. Fourth,
    to breach this norm against killing (including acquiescing in ones own
    killing) is to choose to defy God and to separate oneself from him.

[77]

In short, on the evidence of Mr. Stewart, the
    appellant understood that she had a religious obligation to have life support
    maintained as long as she was alive, which she understood  according to the
    tenets of her religious faith  to be determined by whether her heart was
    beating. Insisting that she be recognized as a living human person who is
    entitled to all the benefits of law and membership in a political community is
    a manifestation of that religious belief.

[78]

To succeed on a s. 2(a) claim, a claimant must
    demonstrate that she has a sincere belief or practice that has a nexus with
    religion, and that the impugned state conduct interferes in a manner that is
    more than trivial or insubstantial with the ability to manifest that belief:
Trinity
    Western
, at para. 63;
Amselem
, at para. 65. Although the record
    is sparse, I would conclude that it is sufficient to establish that the
    appellant held the beliefs attributed to her by her father, that these beliefs
    were sincerely held, and that they have the requisite nexus with religion to
    come within the protection of s. 2(a) of the
Charter
.

[79]

A more difficult question, given the state of
    the record would be whether these beliefs, and the practices associated with
    them, have been limited by legislation or the common law. That question is best
    left to a case in which the record related to the beliefs of the claimant is more
    fully developed than this record.


ii.

Section 1: limitations on rights

[80]

Again, in order to clarify the methodology to be
    followed in future adjudication, it is appropriate to comment briefly on the s.
    1 analysis that follows a finding that the exercise of a s. 2(a) right has been
    limited.

[81]

It is only possible to determine that a
    claimants
Charter
rights have been violated after considering whether
    the limit placed on the exercise of a
Charter
right is justified. A
    finding of a rights limitation at the first stage of the analysis is not a
    finding that a claimants rights have been violated, which is the product of
    the second stage analysis under s. 1.

[82]

It is at this stage of the analysis that a court
    would address the claim that some regime of religious accommodation, as is
    found in the legislation of some American states, could potentially remedy an
    unjustified limitation. As noted above, however, there is no record on which to
    base a s. 1 analysis. Although the application judge speculated about
    floodgates, impacts on health care resources, and difficulties in
    administrating a regime of reasonable religious accommodation, there was no evidence
    on which to make any findings in this regard.


iii.

Section 7 and 15(1) claims

[83]

Counsel for the appellant conceded in oral
    argument that the appellants claim of violations of ss. 7 and 15(1) of the
Charter
depend on the success of the claim that her s. 2(a) rights have been
    violated by governmental reliance on the common law acceptance of neurological
    criteria as a determinant of death. Absent a finding that there is an
    obligation to accommodate the religious conviction that a person who has
    suffered brain death is not dead, the appellant has not advanced any theory as
    to how she could bring herself within the protections of the
Charter
. As
    explained, with these parties and this record, it is not possible to conduct a
    s. 1 analysis and thereby determine whether the
prima facie
limit on
    the appellants exercise of her s. 2(a) rights is, all things considered, a
Charter
violation. Given that this is a moot appeal and that it is not possible to make
    the determination that is a necessary precondition to establishing either the
    s. 7 or s. 15(1) claims, it would be inadvisable to engage in an adjudication
    of those claims. However, nothing in the reasons should be taken as an
    endorsement of the application judges s. 7 or s. 15(1) analyses.

b.

Charter values - modification of the common law

[84]

The application judge considered an alternative
    basis for the appellants claim  that the common law rule recognizing total brain
    death as a criterion of death is inconsistent with
Charter
values and
    should therefore be modified so as not to apply to persons whose religious beliefs
    preclude the acceptance of total brain death as a determinant of death.

[85]

The application judge concluded that [t]he
    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. In the alternative, she found that if the common law
    definition of death as including brain death does violate the
Charter
value of religious freedom, the competing value which must be considered is
    that of a need for certainty, predictability and clarity in the law regarding
    the determination of death. The application judge concluded that the religious
    accommodation sought by the appellant would create the potential for disputes
    among family members as to the actual religious beliefs of the patient, as well
    as the type, extent, and duration of medical services to be provided. It would
    create confusion among physicians as to their obligations. It would complicate
    other legal disputes where ascertaining the date and time of death is relevant,
    it would impose additional costs on the public health care system, and have
    possible adverse impact on the organ donation system. Taking these concerns
    into account, the application judge concluded that the common law definition
    of death as including brain death is consistent with
Charter
values.

[86]

As explained below, the application judge erred in
    this analysis, both with respect to common law and
Charter
values
    methodology generally, and specifically with respect to the application of freedom
    of religion and other relevant principles.


i.

Charter
values
    methodology

[87]

In litigation between private parties, it is
    open to a party to argue that an applicable common law principle or rule is
    inadequate in some respect and ought to be changed. In deciding whether it
    would be appropriate to modify the common law, courts must consider the reasons
    for the proposed change. To identify relevant considerations and to minimize
    judicial subjectivity, courts have sometimes sought guidance from principles that
    motivated the enactment of particular provisions of constitutional texts,
    including the
Charter
:
RWDSU v. Dolphin Delivery Ltd.
, [1986]
    2 S.C.R. 573, at p. 603
.
The various moral norms, principles, and aspects of well-being
    associated with the particular provisions of the
Charter
are sometimes
    referred to as 
Charter
values.

[88]

Charter
values
    are not
Charter
rights by another name or in a different setting; they
    are a different juridical concept. They do not extend the application of
Charter
rights by imposing
Charter
duties on private parties:
Hill
,
    at para. 95. Although they

can supply a reason to change the common
    law, they cannot be used to invalidate legislation.

[89]

Charter
values
    are, essentially, a catalogue of some of the human goods that judges can use in
    legal reasoning, all of which were known to the common law prior to the
    enactment of the
Charter
, though of course imperfectly realized. As
    Dickson C.J. noted in
R. v. Oakes
, [1986] 1 S.C.R. 103, at p. 136, the
    underlying values and principles of a free and democratic society are the
    genesis of the rights and freedoms guaranteed by the
Charter
.

[90]

Recent decisions from the Supreme Court and this
    court have scrutinized the use of
Charter
values. There is a concern
    that although the concept of
Charter
values is intended to reduce
    judicial subjectivity in moral reasoning, the selection of
Charter
values and their prioritization are both unavoidably idiosyncratic: see
Trinity
    Western
,
per
McLachlin C.J. (concurring), at para. 111,
per
Rowe J. (concurring in the result), at paras. 171-72, and
per
Côté and
    Brown JJ. (dissenting) at paras. 307-11; see also
Gehl v. Canada (Attorney
    General),
2017 ONCA 319, 138 O.R. (3d) 52, at para. 79;
E.T. v. Hamilton-Wentworth
    District School Board
, 2017 ONCA 893, 140 O.R. (3d) 11, at paras. 103-4.
Charter
values, unlike
Charter
rights, are not taken from a canonical text. There
    is no methodology to guide the degree of abstraction at which they are
    formulated, or to resolve claims of priority when they conflict. Their
    formulation and use in judicial reasoning should therefore be approached with
    careful attention to the rules that govern their use in different contexts.

[91]

Appeals to
Charter
values have been
    made in five main adjudicative contexts: (1) common law reasoning, (2)
    statutory interpretation, (3) exercises of discretion by judges and
    administrative decision-makers, (4)
Charter
rights limitations analysis
    in administrative law, and (5)
Charter
rights limitations analysis in
    the context of
Charter
challenges to legislation. In each context,
    there are different rules that govern how
Charter
values can be used.
    As a result, it cannot be assumed that case law governing the use of
Charter
values in one context can be transposed to another. This is particularly the
    case in the context of administrative law, where the relationship between
Charter
rights and
Charter
values remains unsettled: see e.g.
Trinity Western,
at paras. 41 and 169.


ii.

Charter
values
    and the common law

[92]

In the context of a proposal to change a common
    law rule, the use of appeals to
Charter
values are subject to the
    ordinary constraints on making changes to the common law. The obligation to
    interpret the common law in a manner consistent with
Charter
principles is simply a manifestation of the inherent jurisdiction of the court
    to modify or extend the common law:
Hill
,

at para. 94. A
    courts power to change the common law is unlike the legislatures wholesale power
    to amend or repeal statutes, and must be exercised interstitially. The reasons
    for avoiding far-reaching change were articulated by McLachlin J. in
Watkins
    v. Olafson
, [1989] 2 S.C.R. 750, at pp. 760-61:

There are sound reasons supporting this
    judicial reluctance to dramatically recast established rules of law. The court
    may not be in the best position to assess the deficiencies of the existing law,
    much less problems which may be associated with the changes it might make. The
    court has before it a single case; major changes in the law should be
    predicated on a wider view of how the rule will operate in the broad generality
    of cases. Moreover, the court may not be in a position to appreciate fully the
    economic and policy issues underlying the choice it is asked to make. Major
    changes to the law often involve devising subsidiary rules and procedures
    relevant to their implementation, a task which is better accomplished through
    consultation between courts and practitioners than by judicial decree. Finally,
    and perhaps most importantly, there is the long-established principle that in a
    constitutional democracy it is the legislature, as the elected branch of
    government, which should assume the major responsibility for law reform.

[93]

In
Hill
, the Supreme Court explained
    that the constraints on the power of the judiciary to change the law are no
    different where the reason for the change is to better align the common law with
Charter
values or other moral norms. Courts have traditionally been
    cautious regarding the extent to which they will amend the common law.
    Similarly, they must not go further than is necessary when taking
Charter
values into account. Far-reaching changes to the common law must be left to the
    legislature:
Hill
, at para. 96.

[94]

Even where it would be appropriate  according
    to the criteria articulated in
Watkins
and
Hill


for
    a judge to amend the common law, a judge who seeks to be guided by
Charter
values and thereby avoid idiosyncrasy faces the hidden traps mentioned above:
    (1) the problem of identifying or choosing
Charter
values; and (2) the
    problem of prioritizing particular
Charter
values against other
    considerations.

[95]

As noted above, there is no set list of
Charter
values, or canonical formulation of them. The category of
Charter
values is extremely broad, including human goods derived from the enumerated
    rights and freedoms, from s. 1s principles of a free and democratic society,
    and entailments from even more abstract principles, such as human dignity, as
    in
Hill
, at para. 120. So a judge who would rely on
Charter
values in common law reasoning must not only select some values from among
    others, but must formulate them at an appropriate level of abstraction. The
    Supreme Court has provided some guidance in this regard.

[96]

The methodology for applying
Charter
values in common law reasoning has been most fully developed in cases addressing
    the moral norms associated with freedom of expression: see e.g.
Grant v.
    Torstar Corp.
, 2009 SCC 61, [2009] 3 S.C.R. 640;
Dagenais v. Canadian
    Broadcasting Corp.,
[1994] 3 S.C.R. 835; and
Hill
. The first step
    in the methodology applied in those cases was to identify the core rationales
    or purposes behind the adoption of the
Charter
right  that is, those aspects
    of human flourishing the
Charter
right is intended to promote. In the
    case of s. 2(b), the underlying purpose has been characterized as a matter of
    furthering democratic discourse, truth-finding, and self-fulfillment:
Irwin
    Toy
, at p. 976.

[97]

Having considered why and how the constitutional
    provision in question furthers human well-being, the second step is to consider
    whether the impugned common law rule (in the s. 2(b) cases, often the law of
    defamation and its defences) adequately promotes or protects these goods, when
    considered alongside competing goods.

[98]

In the context of a proposal to change a common
    law rule where freedom of religion is of concern, an appeal to the
Charter
values corresponding to freedom of religion must therefore be a deeper inquiry
    than simply reading off the text of the
Charter
. It requires an
    account, similar to that provided in the context of freedom of expression in
Irwin
    Toy
, of the human goods served by protecting the right. Without this, it would
    be difficult to engage in the appropriate reconciliation of principle.

[99]

With respect to weight or priority, although
    what has been characterized as a
Charter
value may be significant to
    judicial reasoning, it does not have indefeasible priority over competing
    considerations:
Gehl
, at paras. 78-82. Although a fully specified
Charter
right (that is, a right whose limitation has been found to have been justified
    under s. 1) operates as a trump, a
Charter
value does not.
    Accordingly, in common law reasoning, it may be that little turns on whether a
    reason for modifying the common law is characterized as a
Charter
value or not. What matters is the salience of the reason for changing the law
    and not the label that is attached to it:
E.T. v. Hamilton
, at para.
    104.


iii.

The application judges
Charter
values analysis

[100]

The application judges formulation of the relevant
Charter
value was stated in terms of s. 2(a): the value protected by s. 2(a) is the
    right to hold religious beliefs and manifest those beliefs without fear or
    coercion. This formulation, however, is simply a restatement of the scope of
    the
Charter
right and is not adequate. As in
Grant
,
Dagenais
,
    and
Hill
, to get to a principle it is necessary to ask what reason there
    is to respect conscientious religious beliefs and acts of persons. It is
    necessary to explain how the manifestation of the particular religious belief
    in question is important from the perspective of the claimant: a person who
    engages in religious practice in order to understand truths about the world.
    This would involve an analysis of the type outlined in paragraphs 59-62 above,
    in the discussion of s. 2(a) rights. But the analysis is not necessarily
    restricted to principles that are directly analogous to the substantive
Charter
rights. Other salient principles would include, for example, the inviolability
    of life:
Rodriguez
, at p. 595;
Carter
, at para. 63.

[101]

The application judge also identified competing principles as
Charter
values, including a need for certainty, predictability and clarity in the law
    regarding the determination of death. In addition to these, she raised
    concerns about unjustifiably privileging some religions over others, the
    financial cost of maintaining the appellant in an intensive care unit, and the
    impact on the organ donation system. The application judge ultimately concluded
    that the consideration of all of the relevant matters of principle are beyond
    the scope of this court to consider but must be addressed if there is to be an
    accommodation of religious beliefs in the determination of death.

[102]

As outlined above, the reasoning of the application judge, including
    the inadequate characterization of the nature of freedom of religion, the idiosyncratic
    identification of a need for certainty, predictability and clarity in the law
    regarding the determination of death as
Charter
values, and the equally
    idiosyncratic weighing of the various
Charter
values against each
    other, amply illustrates the difficulties inherent in using
Charter
values to amend the common law.

[103]

Given the deficiencies in the record, whether a common law rule should
    be crafted to provide accommodation for persons whose religious convictions
    cannot accept neurological criteria for death, is a question that must,
    ultimately, be left for another case. I would not, on this record in a moot
    appeal, attempt to determine whether such a change to the law is within the
    institutional capacity of courts to make incremental changes to the common law
    or is the type of far-reaching change that must be left to the legislature.

(5)

The jurisdiction of the Consent and Capacity
    Board

[104]

This is not an appropriate case to determine the jurisdiction of the
    Consent and Capacity Board. Such a review should be by way of judicial review
    of an actual decision of the Board by the appropriate court.

(6)

Leave to appeal costs

[105]

No costs were awarded in the court below. The appellant argued below for an order for special costs on the basis that the appellant is a public interest litigant. The application judge refused to grant costs on this basis. It must be noted that the party from whom costs were sought was Dr. Hayani, a private party, and not the Crown. I would deny leave to appeal the costs award below.

E.

Disposition

[106]

I would dismiss the appeal and dismiss the motion for leave to
    appeal the award of costs below. As the respondent is not seeking costs, I
    would make no order as to costs of the appeal.

Released: DD OCT 9 2019

B.W.
    Miller J.A.

I
    agree. Doherty J.A.

I agree.
    David M. Paciocco J.A.





[1]

This proceeding was commenced by Ms. McKittys parents as
    her substitute decision-makers. There was some issue below as to whether the
    substitute decision-makers had standing to bring an application on behalf of
    someone who had been declared dead. Because the question of standing depended
    on the outcome of the
Charter
rights argument, the application judge
    decided to proceed as though the appellant had standing, and that aspect of the
    judgment has not been appealed.



[2]

Ouanounou v. Humber River Hospital
, 2018 ONSC 6511.


