Hugh Scher said Taquisha McKitty’s Charter rights were violated in order to declare her dead.

The case concerning a woman who has been declared brain dead by a Brampton hospital is heading to the Ontario court of appeal. The issue at hand is the definition of brain death.

Taquisha McKitty, 27, of Brampton, was declared brain dead on Sept. 20, 2017, after having a cardiac arrest on Sept. 14 related to a drug overdose. On Oct. 17, Hugh Scher, the lawyer for her family, asked the court for more time for medical tests to prove that McKitty is alive.

On June 26, 2018 Ontario Superior Court Justice, Lucille Shaw, ordered that McKitty was to have her life-support withdrawn in a month.

McKitty’s family appealed the decision preventing the removal of life-support and challenging the brain death designation.

In the lower court decision Justice Shaw decided that McKitty was dead and that the Charter of Rights and Freedoms did not apply to her, because it only protects “persons.” Since McKitty is clinically brain dead, she is not legally a “person.”

Scher is arguing on appeal that McKitty’s Charter rights were breached in order to pronounce her dead. “To say that she doesn’t have Charter rights because she is dead is putting the cart before the horse.” Scher also said: “The Court’s predetermination of Taquisha’s death to justify non-application of the Charter of Rights and Freedoms … dehumanizes Taquisha as a non-person from the outset.” Scher continued,  “Taquisha is an individual under the law deserving of Charter protection.”

Scher told the CBC that in some jurisdictions McKitty would be considered alive. CBC news reported: “Taquisha remains alive in Nova Scotia, New York, New Jersey and elsewhere, but according to (Ontario Superior Court) is dead in Ontario.”

CBC news reported the family believes that McKitty is alive. She continues to move and she is breathing.

 Alex Schadenberg is the executive director of the Euthanasia Prevention Coalition. This article originally appeared on his blog on Dec. 13 and is used with permission.