A DEATH-DEFYING LEAP: SECTION 7 CHARTER IMPLICATIONS OF THE CANADIAN COUNCIL FOR DONATION AND TRANSPLANTATION'S GUIDELINES FOR THE NEUROLOGICAL DETERMINATION OF DEATH

Created by a Federal-Provincial/Territorial intergovernmental agreement in 2001, the non-profit Canadian Council for Donation and Transplantation ("CCDT") was mandated to increase Canada's organ and tissue supplies and the viability of organ transplants. The CCDT satisfied this mandate by creating, inter alia, guidelines for the determination of death, before being merged with the Canadian Blood Services ("CBS") in 2008. These brain death guidelines, adopted in some parts of Canada by both policy-makers and practitioners, with possible effects on organ and tissue supplies, substantially redefine the point at which physicians may declare neurological death. Aspects of this redefinition raise patient safety concerns because they reveal a potential for physicians to declare death significantly earlier, and with greater chance of error, than previous brain death guidelines. For instance, the CCDT recommends that Canada employ a brainstem criterion of death, as used in the United Kingdom. There are concerns that the CCDT recommendations may infringe patients' section 7 rights to life and security of the person under the Charter, if government involvement can be shown to permit Charter review. Despite the CCDT's claims of independent, nongovernmental status, the author argues that the CCDT can be shown to be a part of the fabric of government. Alternatively, the CCDT brain death guidelines may also qualify as government activity, in either case permitting Charter application. The author argues that, due to their irrational, arbitrary, and disproportionate elements, the CCDT's infringing recommendations do not appear to adequately comply with the principles of fundamental justice. These recommendations seem unlikely to be upheld under section 1 of the Charter. Yet, while a Charter challenge to the CCDT brain death guidelines appears justified, it may not be feasible. Alternative approaches may be required.