Few legal distinctions matter more than the line between life and death. It determines whether someone still has legal rights, whether medical interventions should remain a part of active treatment, whether organs may be recovered and when rules governing criminal responsibility, insurance and inheritance take effect.

Yet Canada has no harmonized legal definition of death that applies across the whole country. Some provinces and territories define death in legislation, while others rely on common law, organ-donation statutes and accepted medical practice. That does not necessarily mean that Canadians are declared dead differently depending on where they live. A brain-based definition is already widely accepted in Canadian medical practice. The deeper problem is that the source, wording and scope of standards vary on a matter that defines the boundaries of legal personhood.

Should governments define death in legislation?

There are credible reasons to answer no. Death is not merely biological. It has profound cultural, religious and philosophical meanings, and no legal formula can resolve every disagreement about when human life truly ends.

The British Columbia Civil Liberties Association made a more practical version of this argument when it responded to a proposed definition of death by the Law Reform Commission of Canada almost five decades ago. The association argued that rather than try to pinpoint the moment of death, governments could regulate its consequences separately. This could be done by establishing when treatment could be discontinued, when organs could be recovered, when an estate could be distributed and when other legal rules would be triggered. This would allow for the resolution of practical questions without needing to settle on the meaning of death.

A legislated definition also risks locking in a scientific standard. A poorly drafted law could create more uncertainty than it resolved and prove difficult to amend.

These objections deserve serious consideration but, ultimately, they are not persuasive enough.

Being alive is not simply a condition of being. It is the foundation of legal status, that is, the distinction between living and dead determines whether a human being remains a person before the law. Regulating consequences could theoretically treat someone as dead for one purpose and alive for another. That flexibility could avoid a difficult philosophical debate, but would do so at the cost of a........

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