Religious rights at issue in case of brain-dead Toronto man

By Cristina Howorun

A 25-year-old Toronto man declared brain dead in September will remain on life support until at least February, when a judge will hear his family’s lawyers argue that according to his faith, he is still alive.

“Our client’s deeply held religious beliefs celebrate the sanctity of life, even at its very end,” explained Mark Hendelman, a lawyer representing Shalom Ouanounou’s family. “That’s what he seeks to have respected in this case, deeply held religious beliefs.”

Ouanounou’s family, devout orthodox Jews who don’t believe neurological demise means death, insist the 25-year-old is still alive. Lawyers for the family are arguing that Ouanounou’s constitutional right to freedom of religion is being trampled on.

“The case is fundamentally about accommodation and respect of religious difference,” head lawyer Hugh Scher said. “In a city like Toronto that is so diverse and pluralistic, I think it’s imperative that we respect different faiths, different beliefs and that our laws accord that same respect in their accommodation, and in the context of determining if someone is alive or dead.”

The neurological determination of death is a widely accepted medical standard. If the brain stops most functions, the person is determined to have died. But according to a small sect of orthodox Judaism — and many other religions — death only occurs when a heart stops beating and can’t be resuscitated.

The case has support from several human rights organizations, including the B’nai Brith of Canada League for Human Rights, the Centre for Israel and Jewish Affairs and Vaad Harabanim. All have been granted intervenor status.

“This is an issue that affects more than the Ouanounou family,” said Brendan Donovan, who represents the groups. “It is a tragedy for the Ouanounou family but the decision could also be a tragedy for a number of people who are interested in having their religious rights respected.

“It’s important in terms of interpreting the Charter and the rights and freedoms of religions and equality and the right to life.

Dozens of members of the Jewish community packed a University Avenue courtroom Tuesday to hear what lengths medical staff would have to take to keep Ouanounou in his current state, while the case is heard. Hospital staff are obliged to try cardiopulmonary resuscitation if Ouanounou’s heart stops.

Ouanounou had an asthma attack which led to cardiac arrest. He was declared brain dead on Sept. 30 and has been at Humber River Hospital ever since.

The case echoes that of Taquisha McKitty, a Brampton woman on life support awaiting a similar decision.

She too was declared brain dead in September, at Brampton Civic Hospital. Unlike Ouanounou, however, McKitty continues to move her legs, arms, torso and head — movements her family argues are signs of life but which doctors say are spinal cord reflexes.

Scher is confident Ouanounou’s case will change the way death is defined in the legal community, giving room for religious beliefs to be considered.

“I think it will redefine an exemption for those who do not accept neurological determination of death,” Scher explained. “It will enable the time-honoured tradition of cardiopulmonary death to be used as the determination of death.”

The case will be heard on Feb. 12 and 13.

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