Judicial Discretion, Consent and Closure: Priority and Control Over the Dead

By: Richard Wong, Student-at-Law

The Alberta Court of Appeal in Campbell v. Campbell, 2018 ABCA 46, agreed with the chambers judge, dispensing with the consent of the appellant-father of the deceased to have his son’s remains tested to determine the cause of death under “suspicious circumstances”.  Although the father opposed the mother’s application in order to maintain the integrity of their deceased son’s remains, the chambers judge empathized with the mother, who believed testing was necessary to bring dignity to their son’s death and closure to their family.

On appeal, the father argued that Section 36 of the General Regulation to the Funeral Services Act, Alta Reg 226/1998, gave him priority and control over the disposition of the deceased’s remains.  Section 36 specifically states that, “subject to an order of the Court,” the right to control the disposition of human remains vests in the prescribed order of priority, which includes a parent of the deceased.  Where parents of the deceased cannot agree to whom controls the disposition of the remains, the General Regulation stipulates, “the order of priority begins with the eldest person in that rank.”  This would mean the father of the deceased in this case.  

Despite the father conceding that the General Regulation gave the Court discretion to depart from the prescribed priority, he argued that the Court must have persuasive reasons for doing so.  Specifically, the father argued that there was no factual basis to support the chamber judge’s decision.  He stated that no evidence was presented that supported the position that testing should be done on the deceased’s remains or that testing would accomplish anything.  Although the Court of Appeal agreed that no expert evidence was presented to identify a potential connection to the death of the deceased, such as having a history of concussions, this did not provide sufficient reason for the Court to prevent further testing as other possibilities such as mental illness and substance abuse had already been ruled out.  

Considering the facts before him, the chambers judge concluded that the benefits of conducting testing on the preserved remains of the deceased outweighed the lost opportunity of determining the deceased’s cause of death.  The Court of Appeal agreed, finding that the chambers judge acted reasonably in exercising his discretion, ultimately dispensing with the father’s consent, and providing closure for the family.  At the end of the day, the facts of this case, Court of Appeal and the drafters of the General Regulation to the Funeral Services Act gave the chambers judge control over the dead.