Cases Considered: Johnston v. Alberta (Vital Statistics), 2008 ABCA 188
PDF Version: Disinterment of RCMP Officer may proceed despite parents’ wishes
In a previous post, I reviewed a number of decisions of the Alberta courts relating to the disinterment of Constable Leo Johnston, one of four RCMP officers killed near Mayerthorpe, Alberta in March 2005. The Johnston case involves a public death, and an ensuing private dispute now playing itself out in a very public way.
By agreement of his immediate family (his wife and parents), Constable Johnston was buried in his hometown of Lac La Biche, Alberta shortly after his death. Approximately one year later his widow Kelly applied to have his place of burial changed to the special RCMP Cemetery in Saskatchewan after learning of the existence of this cemetery. Her application was governed by s. 11 of the Cemeteries Act, R.S.A. 2000, c. C-3, which provides as follows:s. 11 Disinterment of a body shall not take place until an application for disinterment in the prescribed form, together with the certificate of death, showing the cause of death, is given to the Director of Vital Statistics, who, in that Director’s discretion, if that Director considers it necessary or advisable, may issue under that Director’s signature a permit for disinterment on receipt of the prescribed fee (emphasis added).In May 2007, the Director of Vital Statistics (“the Director”) allowed the application and granted a disinterment permit. More than two months later, Kelly Johnston notified Constable Johnston’s parents (Grace and Ronald Johnston) of the decision. Immediately after this event, Grace Johnston filed an objection with the Director. Key to her argument was the existence of a Policy establishing guidelines for the exercise of the Director’s discretion to disinter, including an “Objection to Disinterment” guideline. This guideline sets out the requirements for valid objections, and empowers the Director to investigate an objection by obtaining evidence, evaluating the reasons for disinterment and the objection. The Policy also gives the Director the discretion to deny the disinterment, overrule the objection and allow the disinterment, request that the parties resolve the matter themselves, or refer the matter to court. Grace Johnston’s objection was dealt with by the Assistant Director of Vital Statistics, who “expressed the hope that the parents and widow would resolve their differences” (Johnston v. Alberta (Director of Vital Statistics) 2007 ABQB 597 at para. 16). Mrs. Johnston applied for judicial review, arguing that the Director’s decision to disinter was unreasonable, and that the Director had not made a proper decision on the objection, thus invalidating the permit. Justice D.R.G. Thomas of the Alberta Court of Queen’s Bench denied Mrs. Johnston’s application, and his decision was upheld by the Court of Appeal.For the Court of Appeal, Justices Keith Ritter, Frans Slatter and Paul Belzil applied the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9 to determine the appropriate standard of review. Picking up on the Supreme Court’s approach in Dunsmuir that standard of review can be determined by looking to existing case law, the Court of Appeal noted that this case was a first – there were no precedents for reviewing a disinterment decision of the Director of Vital Statistics. Accordingly, the Court resorted to the contextual approach mandated by Dunsmuir and earlier decisions, ultimately finding that the correctness standard should apply. This in itself is an interesting part of the decision, as the reviewing judge, Justice Thomas, found that the appropriate standard of review was reasonableness, noting that “the highly factual and discretionary nature of the Director’s decision here makes the patent unreasonable approach a strong contender” (at para. 38). It is unlikely that the courts’ different outcomes on standard of review in this case were dictated by Dunsmuir, where the patently unreasonable standard was jettisoned, and more likely that the case is simply another example of the malleability of the contextual approach in choosing the appropriate standard of review. Applying the correctness standard, the Court of Appeal found the Director committed no error in failing to give legal effect to the “Objection to Disinterment” guideline. Here the Court rejected Grace Johnston’s’ argument that the words “necessary or advisable” in s. 11 of the Cemeteries Act called for some means of restricting the Director’s discretion, such as a policy or guidelines. According to the Court, there is nothing in the underlying legislation that compels the formulation of
policies in aid of determining what is necessary or advisable respecting the issue of disinterment. In these circumstances, the Policy does not have force of law and no legal rights and obligations arise from it (at para. 18). The Court also rejected Grace Johnston’s contention that the Director’s actions were procedurally unfair because the Director failed to provide notice of the disinterment application on a timely basis. Again, because the Policy was the source of the alleged duty to provide notice, and it was found to have no legal effect, Grace Johnston was said to have no procedural rights. Further, the Policy was not publicly available or known to Grace Johnston before the judicial review application, so it did not create any reasonable expectation of notification. The Court did allow that the Director could not make discretionary disinterment decisions in a vacuum. However, because the Policy provides that spouses have priority over parents in terms of resolving conflicts under the Cemeteries Act, the Court found that there was no obligation to give notice or to hear the parents. Only if there was a conflict between 2 persons with equivalent ranking – for example a legal and common law spouse – might the Director be required to provide notice and receive input. This aspect of the case seems to contradict the Court’s earlier reasons – why was the Policy given effect in terms of its priorities, but not when it came to the objection provisions? The Court is careful to refer to the Policy as “non-binding”, but that does not seem to be the tenor of its decision. The only explanation in the Court of Appeal’s reasons is that the Policy is also said to reflect common law priorities in terms of who is entitled to control human remains. Interestingly, the General Regulation (Cemeteries Act), Alta. Reg. 249/1998, also sets out priorities for control of human remains in s. 11 – the spouse or adult interdependent partner has priority, then adult children, and then parents. These priorities are binding on owners of cemeteries rather than the Director, but they were found to be significant by Justice Thomas in assessing the reasonableness of the disinterment permit. There is something deeply troubling about the fact that a woman married to a man for less than one year can obtain legal permission to have his remains dug up and moved without his parents being informed or consulted. Ultimately this is an issue that relates to the Cemeteries Act and Regulation, and the underlying common law priorities it follows. As a society, do we still believe that spousal relationships should be given this kind of priority? In addition to the parents, another voice missing from the dispute was that of the Métis Nation. Constable Johnston was Métis, and the Métis Nation of Alberta Association Zone One Regional Council sought standing on the judicial review application. As noted in my previous post, Justice Thomas found that it had no standing to be heard on the application. While the Métis Regional Council appealed this decision, it discontinued its appeal before the Court of Appeal hearing. The Métis Nation of Alberta, a different entity than the Regional Council, was denied leave to intervene in the appeal. It would have argued that disinterment is a practice contrary to Métis custom, and that the Director breached its duty to consult with the Métis Nation before issuing the disinterment permit. Media coverage of this case indicated that Grace Johnston might seek leave to appeal the Court of Appeal decision to the Supreme Court of Canada. One would expect a stay application of the disinterment permit in the meantime. But if the legislation itself is ultimately the problem, it may be that the application for leave to appeal simply prolongs the inevitable at this stage.
Russ Brown
Jennifer,
Excellent treatment of an awful awful case. I differ with you on a couple of your concluding points, though. While I find this dispute to be about as wretched as they come, I am not as troubled by the results at Queen’s Bench and at the Court of Appeal. You ask whether, “as a society, do we still believe that spousal relationships should be given this kind of priority [over the parental relationship]?” I think that the answer is that we probably do. Where the two sides are in disagreement, someone’s view has to trump, and I think that the common law preference (favouring the spouse) enshrined in the Regulations to the Cemeteries Act probably makes the best of a (very) bad situation. While it does presuppose that most widow(er)s, even after a short period of marriage like the Johnstons had, have a better idea than the parents about their deceased spouse’s preferences, that does not strike me as an unreasonable presupposition. It would be nice to think that the widow in this case would have consulted the family, but these family disputes can become complicated and awkward in ways that the rest of the world never discovers, and so the widow’s unilateral act might well have been objectively reasonable in the circumstances.
I was also not bothered by Slatter J.A.’s refusal to grant the Metis Nation of Alberta leave to intervene in the appeal. Again, it seemed to me to be just another way of making the best of a bad situation (first, because the dispute is already an irredeemable mess between two parties (why add more?) and, secondly, because the substance of the dispute is really about who, by virtue of status (parent v. spouse) gets to make the choice about disinterment). The Metis proscription against disinterment, even if it is established, would presumably inform the parent’s choice, just as the deep significance which Cst. Johnson supposedly ascribed to his membership in the RCMP informed the spouse’s choice. But neither of those preferences really go to the prior question of who gets to decide.
Awful case.
Russ
Jennifer Koshan
Thanks for your comment on my post, Russ. I take your point that some category of family member should have priority in the disinterment process in the end (although I’m still not convinced that the appropriate category is the spouse). My deeper concern is that the priority is so strong, and seems to preclude any obligation to inform and consult other interested family and community members where those persons have a lower legal priority. A requirement for consultation would recognize Tolstoy’s observation that “every unhappy family is unhappy in its own way”, and oblige the Director to consider the application in light of the particular context of each family (even if some family members’ voices have more weight). We use a contextual approach in many other areas of the law, and perhaps there’s room for such an approach here as well, messy, complicated and awkward as that might be.
Jennifer
Russ Brown
Jennifer,
Your point about a contextual approach is well taken, given that family courts (and I suppose familiy studies generally) have revised family paradigms in such a dramatic fashion in the past 20 years. I see this case, however, as demonstrating contextualism’s inherent limits, because a contextual approach’s value (in dealing with disputes within families) is in its accounting for and respecting the unique aspects of the relationships at work within each family structure. The Johnston family, however, doesn’t really exist anymore. The widow’s de jure connection – her marriage – to the Johnston family is gone, and she seems uninterested in pursuing the family relationship de facto. I concede that the mother clearly sees the issue at stake as going to some sort of subsisting connection with her son, but this is just the sort of objectively unverifiable thing that I think courts should avoid considering in balancing the interests between the parties (unless we’re prepared to say that the person who claims spirituality can on that basis prevail over the person who honestly confesses no such otherworldly connections but has other reasonable arguments for why s/he should succeed). In such cases, then (where context is less important because “the family” no longer exists), either courts or legislatures need a rule deciding who “wins” (or at least who loses least), and the Legislature in Alberta (just as the court did centuries ago) picked the spouse.
I agree that in new marriages, it is not obvious that the spouse should have that priority (just as I also agree that it is jarring to a parent to have NO enforceable expectation of consultation on this question). I also, however, think it is not obviously wrong that the spouse be given priority, since it seems just as likely as not that even newly married spouses will have shared opinions and thoughts with each other in the course of their pre-marital relationship and their new marriage that give one insights into the other’s value system and priorities that will not have been disclosed to the other’s parents. (i.e. I don’t think I’ve ever bothered telling my parents what I want done with my remains should I predecease them). In the end, though, my main point is that this kind of case probably needs a rule. I’m less concerned about who the rule favours.
Still, I agree with you that imposing an obligation upon the spouse to consult the deceased spouse’s parents and siblings would, despite the awkwardness (or even futility) of such a process, help keep these disputes “all in the family” (such as it is). The Johnstons, through no fault of their own, were thrust onto the public stage a few years ago, and we could probably have done more in Alberta to prevent their tragedy from descending into pathos.
Russ
Marnie Tunay
The real issue in this case is not whether or not the wife had the right to decide where her husband should be buried, but whether or not she had the right to decide more than once. If the precedent set in this case is given broad applicability, there is nothing, in theory, to stop relatives from having their deceased beloveds from being disinterred and re-buried whenever and wherever the whim to do so takes them.
Marnie Tunay
GG
If the law takes away one part of spousal rights, what is next? Does a mother-in-law have the right to decide how grandchildren are raised, or perhaps insist that grandchildren be raised by grandma herself, even if parents are fit and sound? Would grandma decide that all the matrimonial property is hers, and throw a surviving spouse out on the streets?
This is the question. Would Canadian society be happy to make spouses of Metis persons second-class citizens, with restricted or no spousal rights? Would all Canadian spouses be happy to hand over their existing spousal rights in favor of letting the mothers-in-law of Canada, and a crew of assorted other extended family members, rule supreme in their marriages? Where would this end? What would be the point of getting married at all?
This case never was about Metis rights, although Ms. Johnston tried to make it so. There is no legal definition of Metis in the Charter of Rights and Freedoms. The Metis people have never, ever, had one point of view. They have been divided from the beginning, with hugely diverse tribal and non-aborginal origins and cultures. This was, ultimately, a case of a misguided mother-in-law with a vendetta. The Supreme Court made the right decision.