In my last post, I outlined how it is the clear duty and right of an Estate Trustee to dispose of a deceased person’s remains in what way they see fit, so long as they do so in a manner that constitutes proper and dignified treatment of the human remains. As we’ve seen in Canadian jurisprudence, once that requirement of proper and dignified treatment is met, the way that the Estate Trustee disposes of the remains is given a wide amount of deference.[1] However, what about when that bar is not met? Disposing of human remains in a way that is not in line with proper and dignified treatment can open an Estate Trustee up to potential Criminal sanctions.

The Criminal Code[2] underscores the duty of proper and dignified treatment of human remains. Section 182 of the Criminal Code criminalizes neglect of one’s duty with respect to a corpse, and the improper or indecent interference with or the indignity of a corpse. These are indictable offences that can carry prison terms of up to five years:

1. 182. Everyone who,

• • neglects, without lawful excuse, to perform any duty that is imposed on him by law or that he undertakes with reference to the burial of a dead human body, or human remains, or
  • improperly or indecently interferes with or offers any indignity to a dead human body, or human remains, whether buried or not,

is guilty of an indictable offence and liable to imprisonment for a term not exceeding five years.

The leading Supreme Court of Canada case, R. v. Moyer,[3] clarifies that physical interference is not necessary for a conviction—acts of indignity can be committed without contact and include acts involving monuments marking human remains if the conduct is directed at the remains themselves. The offence will ultimately turn on whether the conduct is “shameful or disgraceful” towards the remains.[4]

In the 1992 Manitoba decision of R. v. Mills,[5] a gravedigger was charged under s. 182 of the Criminal Code for “offering indignities to human bodies”. It was discovered that through his carelessness in using a backhoe in re-filling the dirt over the caskets, the caskets would often crack or splinter or break open. At trial, the gravedigger was convicted and ordered to pay a fine and was placed on probation.

On appeal, the court overturned the conviction finding that: “The accused admits that when he was backfilling graves, the caskets collapsed with alarming frequency. But that in itself falls far short of establishing that their collapse constitutes an indignity to the bodies which they contained, and that the accused intended to offer those indignities.” Justice Huband, on behalf of the majority, went on to observe that “I have difficulty in concluding that what takes place six feet below earth’s surface, and completely out of sight, constitutes an indignity to the human remains”.

The dissenting opinion, written by Justice Helper, concluded:

The actions of the accused in this case constitute the offering of indignity to human remains. The intentional application of force to the coffins resulting in their being crushed or collapsed necessarily leads to an interference with the contents. I do not accept the submission that the accused’s actions merely damaged the coffins and did not interfere with

The Supreme Court of Canada would then go on with a short decision on a further appeal where they concluded that the trial judge did not make any error and thus, they overturned the appeal and restored the original conviction.

Now this isn’t to say that a failure to ensure that the remains are dealt with in a way that is dignified and respectful will open an Estate Trustee to Criminal liability immediately. There are other mechanisms available to the Court to use to ensure that remains are dealt with properly.

For example, in the recent Nova Scotia Supreme Court case of Curry v. Curry,[6] the court expressed concerns with the executor’s plan to dispose of the deceased person’s remains. In this case, the executor proposed a plan that would divide the ashes of the cremated deceased person to be partially interred with her late parents at a cemetery, partially interred alongside her late husband at a different cemetery, and then partially to be split amongst each of her 8 children, should they respectively request a portion of the remains. The Court expressed concerns around splitting the remains amongst her children, as the proposed plan had nothing in the way of safeguards that would ensure that the children then dealt with the remains in a manner that was dignified and respectful. The Court modified the Estate Trustee’s plan for disposal of the remains to ensure that the remains were disposed of in an appropriately dignified and respectful manner. Specifically, the order was made for the cremated ashes of the deceased to only be split 2 ways, with each half respectively being interred with her late parents and late husband.

So, while Courts may not jump straight to the use of s. 182 to enforce the overarching obligation of dignity and respect onto Estate Trustees, it is nonetheless important for a prospective executor to understand their requirements and obligations when undertaking the responsibilities of an Estate Trustee, which includes the potential consequences of misconduct in doing so.

—

[1] Sopinka (Litigation Guardian of) v. Sopinka

2001 CarswellOnt 3234, [2001] O.J. No. 3657, [2001] O.T.C. 689, 108 A.C.W.S. (3d) 577, 42 E.T.R. (2d) 105, 55 O.R. (3d) 529

[2] Criminal Code | R.S.C. 1985, c. C-46, s. 182

[3] 1994 CarswellOnt 1162, 1994 CarswellOnt 95, [1994] 2 S.C.R. 899, 170 N.R. 1, 24 W.C.B. (2d) 335, 32 C.R. (4th) 232, 73 O.A.C. 243, 92 C.C.C. (3d) 1, J.E. 94-1373, EYB 1994-67662

[4] Sanagan’s Encyclopedia of Words and Phrases, Legal Maxims, 5th Ed. § I6190

[5] (1992), 77 C.C.C. (3d) 318, 16 C.R. (4th) 390, 30 W.A.C. 281 (Man. C.A.) (S.C.C.).

[6] Curry v. Curry, 2023 NSSC 402