Armaan Sahgal | October 17th, 2021
On the surface, it seems like a fundamentally redundant notion. What use does a dead person have for rights? One can assume that dead people don’t need the right to vote, to stand for Parliament (section 3) or any of the various rights associated with court proceedings (sections 11, 13, 14). A dead person couldn’t possibly benefit from the right to habeas corpus or any other right accorded to detained people (sections 9, 10) since a dead person can’t be detained, right? But then you pause and double-back as you begin to wonder whether the state can detain a corpse.This is the point at which we begin to fall down the rabbit hole.
If dead people have no rights under section 9 or 10 of the Charter, does that mean that a hypothetical premier could order the Ontario Provincial Police or Sûreté du Québec to detain the body of a political rival who died in mysterious circumstances? Let’s consider a similar scenario stemming from section 2 (b) of the Charter. If an individual authors a scathing criticism of the Federal or a provincial government and subsequently dies, is their work no longer protected by the right to freedom of expression? The answer to either of these questions is that these sections of the Charter cease to protect an individual upon their death but other provisions of law not enshrined in the constitution would serve to fill the void. In the case of the detained cadaver, a court would likely deem the premier’s actions as interfering with a criminal investigation and order the body released to investigators. In the section 2 (b) scenario, it’s likely that another individual (e.g. a publisher, online platform, or even an heir entitled to inherit the deceased’s copyright in the work) could assert a similar right with regard to the work in question. It would be simpler in either scenario to extend the relevant Charter rights to protect dead people but it’s unlikely that any substantial injustice would result from the failure to extend such rights.
The next step in this legal thought experiment is to search for a scenario in which a substantial injustice could occur.
The most disconcerting scenario pertains to an individual’s funerary rights. In various cultures across the globe, particularly in smaller tribes in Oceania, funeral customs involve the cannibalistic consumption of the deceased by relatives. While an individual’s beliefs as to how their funeral should be conducted are undeniably a religious belief, it’s likely that such a practice would constitute desecration of a corpse as per section 182 of the Canadian Criminal Code. If an individual who desires a cannibalistic funeral were to pass away in Canada, it’s thus likely that their body would not lawfully be able to be disposed of in accordance with their religious beliefs, which would constitute a limitation of their freedom of religion (section 2). Nevertheless, even if section 2 (a) applied to the deceased, it’s fair to assume that a Canadian court would find a prohibition on religious cannibalism reasonable under section 1 on account of the danger the practice would pose to public health. However, this raises the question of whether an individual’s freedom of religion extends to their funeral at all. For instance, if an individual changes religion during their lifetime and wishes to be cremated or buried in accordance with their chosen faith, are their next of kin obligated under provincial human rights laws to respect the individual’s funerary preferences? If the courts intervened to enforce an individual’s funerary preference, would that constitute a violation of the section 2 (a) rights of the individual’s next of kin? There is no easy answer to either of these questions.
Section 23 of the Charter poses the most confusing scenario. While its purpose is to grant children the right to be educated in their parents’ language, it is phrased such that the right it confers is vested in the parents rather than in the children themselves. This poses an unusual question with regard to orphans: does an orphan have the right to be educated in their parents’ preferred language? If we assume that rights cease to apply to an individual once they are dead, it logically follows that the right of a parent to “have their children receive primary and secondary school instruction” in their first official language ceases to exist upon the death of both parents. Since a child’s right to be educated in their parents’ preferred official language does not exist independently in the Charter, the right of an orphan to receive an education in the language of their parents does not appear to be guaranteed by the Charter. Considering the precarious situation of the Anglophone minority in Quebec and the Francophone minorities in several of the other provinces, this could potentially expose orphans to forced cultural assimilation if a provincial government were to target them based on this apparent loophole in section 23.
As a whole, the question of whether a dead person has Charter rights is more intricate and significant than it appears at first glance. The law has an established tendency to regard dead people as no longer existent. The sole exception is probate law, which extends the rights of dead people through the existence of executors and the principle in most common law jurisdictions that, if an executor dies, their executor becomes the original testator’s executor. In other areas of law, the legal erasure of dead people manifests itself in the form of glaring loopholes and the exclusion of the dead from consideration entirely. Accepting the principle that dead people’s rights continue beyond their departure from the realm of the living would not be a radical reform. It would simply mean granting the executor of a dead person the ability to exercise their constitutional and other rights in the same manner as they currently exercise the deceased’s testamentary rights.
Comments