University of Alberta Faculty of Law Blog

Guns Roundup

If you don't follow our comments, you missed an excellent discussion on the Heller decision. I would like to thank all who posted there.

The Keays of Mr. Justice Bastarache's legal thought?

I was glad to read Prof. Adams' comments on Honda Canada Inc. v. Keays . I'll add a different comment on the same decision.

The majority in Keays was written by the Honorable Mr. Justice Michel Bastarache; it is likely to be his final decision of his 11 years on the Supreme Court, and it falls in line with many other important employment and labour decisions and dissents he has rendered in the past. In his years on the bench he was not the only judge to write on employment and labour for the court, but he wrote a great number of decisions and dissents, including Delisle v. Canada , Dunmore v. Ontario, Quebec v. Maksteel Québec Inc. (in dissent), and, most recently, Evans v. Teamsters Local Union No. 31.

In these decisions and others, Bastarache laid down a particular vision of the employment relationship. This vision was characterised by his idea that the employment contract was effectively a contract among equals where the state need only play a very limited role. One of his earliest major decisions was Delisle v. Canada, revolved around an RCMP office, Gaetan Delisle, and his attempt to establish an association for RCMP officers under the Public Service Staff Relations Act and the Canada Labour Code when the two acts explicitly excluded RCMP officers from forming associations. Bastarache, writing for the majority, crafted a long decision in line with the earlier Labour Trilogy asserting that collective bargaining was not contemplated as part of the rights included in section 2(d) of the Charter, and noting that if, at some future date the government of Canada interfered with those basic associational rights the RCMP officers could appeal through the courts and thus did not need legislative protection of their association.

In their dissent, Cory and Iacobucci noted two key points: first, this was an attempt to form an association not for collective bargaining, but simply through which RCMP officers could discuss with each other and make known issues of workplace conflict and safety. Second, Delisle had presented evidence to the effect that management was interfering with even such limited associational activities by RCMP officers like Delisle.

Here, as in Keays, Mr. Justice Bastarache read out the power disparities presented in the evidence to find a workplace of relative fairness and good faith, one in which the courts need not interfere.

This was not always the case, however. In Dunmore v. Ontario, regardling the implications of the Ontario Provincial Progressive Conservative government's legislative exclusion of farm and agriculture workers, Bastarache did find some power imbalance. Dunmore was the first of several decisions over the past seven years to positively protect workers' assocations under the Charter of Rights and Freedoms. Bastarache concurred with the majority in the most recent decision to do this, Health Services and Support, and so some balance in his views may be asserted, at least if one were to ignore the implications of the evidence.

A year after Delisle, Bastarache wrote a dissent in Ajax v. CAW and in 2001 two more dissents in Ivanhoe v. UFCW and Sept-Iles v. Quebec. All three cases dealt with succession, that is, whether a union remains certified and its collective agreement remains in place when the employer changes but the work remains the same. The cases involved the public sector taking over a contracted-out job, changes in contractors for private sector jobs and the subcontracting out of formerly public sector jobs. In all three cases Bastarache took the hardest line against allowing succession of certification and the collective agreement.

In these cases Bastarache appears to be blind to the underlying political economy: shifting contractors has become a common practice for employers to cut costs through cutting wages and benefits rather than through improved productivity or capital investment. Often the most pernicious way to do this is to cut out unionised employees and thus relieve the ultimate employer of such horrifying impediments to profit as living wages or pension and health benefits. Much as in Keays, by ignoring the evidence of power differentials between employers and workers Bastarache was able in these dissents to assert that allowing succession was inappropriate.

We find similar readings of evidence throughout Bastarache's labour and employment decisions. Specific evidence of employer power, distrust, intimidation and ostracization are downplayed or re-read as simply the benign day-to-day give and take of equals. In the process Mr. Justice Bastarache has often found that it is the employer hurt by nasty employees expecting things like accommodation for disability, fairness in firing (although B v. Ontario is an exception on this count), and such awful things. Where employees are in the right, as in Advanced Cutting and Coring where Bastarache dissented, their oppressor is not the employer but the union.

Mr. Justice Bastarache's departure from the bench will mark a change in players in the Supreme Court of Canada. I am doubtful, considering the principles of the current government, that his replacement will take a different tack in relation to employment and labour cases.

Wallace Damages, We Hardly Knew You

In a year already crowded with eye-catching employment law decisions -- Dunsmuir v. New Brunswick, 2008 SCC 9, Evans v. Teamsters Local Union No. 312008 SCC 20, Mulvihill v. Ottawa (City), 2008 ONCA 201-- last week, the Supreme Court of Canada released the most important of them all,  Honda Canada Inc. v. Keays, 2008 SCC 39.

Keays confirms the trend those other decisions gestured towards, employment contracts appear, more than ever before, to be contracts like any other. Supreme Court jurisprudence in the 1980s and '90s broadly accepted that human labour was not a commodity like all others (see, for e.g., Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986). Inequalities of bargaining power and information asymmetries at the moment when the contract is formed, during its lifespan, and, indeed, when it is terminated pervade the employment relationship. To be sure, these inequalities can cut in different directions depending on the particular industry at issue and the surrounding economic climate, but, nonetheless, by and large, employees remain financially dependent and vulnerable on employers. Recognizing these particulars, the common law has attempted with varying degrees of success to treat employment law as a sui generis branch of contract law by obligating the employer to provide reasonable notice of termination, reasonable accommodation of employee disabilities, and good faith and fair dealing at the moment of termination (see Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701).

An employer's breach of the duty of good faith and fair dealing at termination gave rise to the award of what became known as "Wallace damages" or the "Wallace bump," typically the additional of several months of pay tacked on to the period of reasonable notice owed to the employee. Claiming Wallace damages quickly became standard issue for plaintiffs (see Yanez v. Canac Kitchens), and courts struggled to award such damages with consistency and coherence. Were Wallace damages subject to mitigation? Were they aggravated damages? What type of harm needed to be proved? What types of employer behaviour crossed the line into bad faith and unfair dealing? Why should the quantum of damages depend on one's monthly wage?

In Honda v. Keays, Justice Bastarache and the majority bring much needed clarity to the Wallace confusion, but in application blunt other of employment law's necessarily unique features. Drawing on the Court's ruling in Fidler v. Sun Life Assurance, [2006] 2 S.C.R. 3, Bastarche J. makes clear that in employment contracts, damages emanate from the principle of Hadley v. Baxendale, namely, the reasonable contemplation of the parties when the contract was formed. Since Wallace imposed upon employers the duty of good faith in the manner of dismissal, "[f]ailure to do so can lead to foreseeable compensable damages" so long as employees can prove damages causally related to the bad faith or dishonest manner of dismissal (at paras. 58, 59). Such damages, if proven, will be fixed and compensatory -- no more incongruous extensions of the period of reasonable notice.

Fine. Both the majority and the minority agree in the prudence of the new approach, and they are right to do so. But in applying these principles to the facts at hand, the majority offers an impoverished view of the contents of duty of good faith, as well as duty to accommodate. If the duty to treat employees fairly and to accommodate their disabilities is devoid of substance, if it is a perfunctory illusion, then employees are in a precarious position indeed.

The trial judge and the three members of the Ontario Court of Appeal were unanimous in their assessment that Honda had treated Kevin Keays, a sufferer of chronic fatigue syndrome, unfairly and in a discriminatory fashion in terminating his employment. There was, as Justices LeBel and Fish point out in dissent, ample evidence to do so. In disregarding the trial judge's findings of fact, the majority holds that Honda was fully entitled to take the expert opinion of its medical doctors -- both of whom seemed suspicious of the veracity of Keays' condition -- at face value. But such an approach fails to recognize that company-employed doctors are hardly neutral observers. Of course employers need to be able to deal with absenteeism in the workplace. Of course employees must cooperate with employers in supplying the relevant medical information pertaining to their requests for accommodation. But all of this must take place in the context of good faith dealings. Honda, by subjecting Keays to progressively harsher treatment, especially after he retained counsel, breached that duty. In validating Honda's -- at best, intimidating -- treatment of Keays the majority undercuts the good faith that stands at the heart of the duty to accommodate (see British Columbia (Public Service Employee Relations Commission) v. BCGSEU, [1999] 3 S.C.R. 3).

We do little service to the modern workplace by returning employment law to the hard-nosed contractual model of its master and servant roots.

Guns III

Thanks to those posting comments here. For more detailed discussion of this, over at Volokh, everybody is getting on the action, so go there for a more American view of things.

On another note, my former student Peter Hertz sent me the following, which I thought worth posting.  The case involves the accused making a charter application that was unsuccessfully made that sought to strike out several sections of the Criminal Code and various sections of the Firearms Act, citing British rights, Blackstone, etc. CanLII has the decision on the application at:

http://www.canlii.org/en/on/onsc/doc/2007/2007canlii51171/2007canlii51171.html

Mr. Montague was convicted by a jury of some charges, and has expressed his desire to continue on with this.  If it interests you at all he's detailed things on a website all the way through at www.brucemontague.ca .  He's also put up the written submissions from the charter application in .pdf form at:

http://www.brucemontague.ca/pdf/2007-Oct-22_ConstitutionalBasisForFirearmsOwnership-DougChristie.pdf

I (MY), myself, know of the another case where this argument was made but failed:

http://www.canlii.org/en/sk/skqb/doc/2007/2007skqb455/2007skqb455.html

Gun Rights II

A friend of mine from law school (who wishes to remain anonymous for professional reasons) who is also an avid friend of the second amendment sent me his notes on the Heller decision.  So for those of you who don't want to read through 157 pages, here are some highlights:

1. The “well regulated” militia language is prefatory; cannot limit or extend operative clause.  It simply announces the purpose.

2. The “Right of the People” means an individual right.  Scalia relies on analogies to the First and Fourth Amendments, and a close analogy to the Ninth Amendment.  All these usages are “unambiguously . . . individual.” 

3. The Militia was a subset of the people in colonial America.  If the prefatory clause were a limit on the operative clause, there would be a tension between the two clauses regarding who holds the right – the People (members of national community, broad right) or the Militia (limited subset, narrow right).

4. “Arms” does not have strictly military meaning. 

5. “Keep arms” means “to have weapons.”

6. “Bear” means “carry,” but “bear arms” means “carry [arms] for . . . confrontation.”  Offensive or defensive action is implied, but there  is no connotation of a structured military organization. 

7. “Bear arms” also had idiomatic meaning at time of founding, related to military service or activities, but only when followed by “against.” 

8. Operative clause amounts to an “individual right to possess and carry weapons in case of confrontation.”

9. “By the time of the founding, the right to have arms had become fundamental for English subjects.” [MY’s note: does this mean we in Canada have a right to argue this given that the English Bill of Rights was also received here?]

10. The prohibitions on carrying concealed weapons likely are constitutional, as are other “longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places . . . or laws imposing conditions and qualifications on the commercial sale of arms.”  These are only examples of permissible regulations; the list “does not purport to be exhaustive.” 

11. The need for self-defense is “most acute” in the home.  [MY’s note: the Canadian Supreme Court rejected the home is a castle is the Tessling decision a few years ago – will this hold here too?]

12. Ban from home of most popular type of firearm for self-defense would fail constitutional muster under any standard of review.

13. “Whatever the reason, handguns are the most popular weapon chosen by Americans for self-defense in the home, and a complete prohibition of their use is invalid.”

14. Therefore, the court ”hold[s] that the District’s ban on handgun possession on the home violates the Second Amendment, as does its prohibition against rendering any lawful firearm in the home operable for the purpose of immediate self-defense.” 

Gun Rights

The first second amendment case in just under seventy years will be released tomorrow at 10am. Watch for it all over the blogosphere.

Black Guilt and Sentence Affirmed

That was quick! The United States Court of Appeals for the 7th Circuit affirmed all the convictions against all the defendants. In an opinion penned by Judge Posner, he made short work of the arguments raised in the 161 page brief.  I will read the opinion and try to blog some more on this later.

Update: As usual Judge Posner does not disappoint. Here is a great quote regarding "ostrich instructions":

Three more issues need to be discussed. The first is whether an “ostrich” instruction should have been given. The reference of course is to the legend that ostriches when frightened bury their head in the sand. It is pure legend and a canard on a very distinguished bird. Zoological Society of San Diego, Birds: Ostrich, www.sandiegozoo.org/animalbytes/t-ostrich.html (visited June 12, 2008) (“When an ostrich senses danger and cannot run away, it flops to the ground and remains still, with its head and neck flat on the ground in front of it. Because the head and neck are lightly colored, they blend in with the color of the soil. From a distance, it just looks like the ostrich has buried its head in the sand, because only the body is visible”). It is too late, however, to correct this injustice.

Is the tide turning

against the legal front of the US's war on terror? It seems so. The United States Court of Appeal for the District of Columbia, which was one of the more sympathetic courts to the U.S. Administration issued this opinion (via Bashman) ordering the release or the grant of a new trial for a Chinese Muslim who is being held in Guantanamo. More on the story here, as the court's opinion is very terse given the national secuirty and classified nature of the facts. What is interesting about the case is that the three judge panel consists of a Reagan, Clinton, and Bush II appointee - and the decision was unanimous. While I had suspected that the US Supreme Court would deal the administration a setback, I didn't expect the lower courts to responde so quickly.

BCE go ahead

The Supreme Court of Canada overturned the Quebec Court of Appeal's blocking of the BCE takeover deal. No reasons have been given yet. I suspect that the unanimous decision was informed by their decision in People's, which the Quebec Cour misunderstood. The Quebec Court of Appeal is slowly becoming the Ninth Circuit of Canada, at least with respect to business law.

In our paper (with my former LLM student Remus Valsan now pursuing his PhD at McGill), we argue that maximing shareholder value is the functional equivalent of maximizing the value of the firm. Bondholders are contractually protected, that is why they took less risk and hence less return. I await the reasons, but it seems to me here the right result was achieved.

Finally, A Dose of Good Judgment...

This has just been brought to my attention, via Tim C. and Corey T. Hugely important.

The Canadian Press

MONTREAL - The federal government overstepped its authority when it drafted laws on assisted human reproduction, the Quebec Court of Appeal ruled on Thursday.
In a 53-page judgment, the court said dozens of federal provisions on clinical and research activities are unconstitutional because they encroach on provincial jurisdictions.
Appellate court justices determined that assisted reproduction should be considered a health matter as opposed to a criminal justice issue regulated by Parliament.
They warned that failing to correct to the imbalance could "amount to a Trojan Horse and would reduce substantially the jurisdiction of the provinces." 
The federal law on assisted human reproduction was passed in
2004 and bans human cloning and the buying and selling of human embryos.
It also sets out guidelines for in vitro fertilization and research licensing.
The Quebec government had asked the appeals court to review the law, believing parts of it should be under its control.
The court agreed, ruling 22 articles aimed to regulate "an entire area of medical practice," a task usually left to the provinces.
Quebec's Health Department has often complained that Health Canada was on its turf by controlling elements of the assisted human reproduction industry.
Health Minister Philippe Couillard even tabled a bill last year to create provincial norms for clinical and research activities.

The Story of "Jordan": Isn't the State just a Great Parent?

My colleague Moin Yahya posted yesterday on the state's robust self-image as a parent.  And so the Senate thinks that it knows better about how to discipline a child than the parent of the child.  Moreover, Tessier J. of the Quebec Superior Court assumed the power of judicial review (!!!) over parental discipline, overturning a father's decision to punish his 12-year old daughter by withholding permission for her to go on a school trip after she had posted pictures of herself on an online dating site.   Such punishment, said the wise Justice Tessier, "excessive".  It is not the parent's experience with the child that counts, nor (in the case of the 12 year old date-site-cruiser) the parent's concern for a child's safety, that matters.  It is the Senators' experience and Justice Tessier's parental instincts that matter, and their concerns that trump.

While still chilling, this might be less objectionable at some purely instrumental level were the state actually a good parent.  The case of "Jordan", however, shows that the state is, in its divided federal persona, equivalent to a couple of cranky divorced ex-spouses who have "moved on" to new lives and can't agree on who is going to pay for the kid's hockey lessons.  Except, in "Jordan"'s case, the stakes were a little bit higher than PeeWee hockey.

"Jordan" was an aboriginal child who lived on an Indian Reserve at Norway House, Manitoba.  His medical condition required that required hospitalization in Winnipeg in 1999.  Two years later, his physicians and family determined that he could be cared for in a specialized setting closer to his home reserve.  But who pays?  "Not us", proclaimed both levels of government (who couldn't even agree on who would pay for a showerhead).  The inter-jurisdictional blether stopped only when Jordan died, another two years later, still separated from his family, in a Winnipeg hospital.

Nice parenting, Messrs Chretien and Doer.  (It's too bad no-one tried to suspend "Jordan"'s TV privileges.  That, at least, might have attracted Justice Tessier's attention.)

Men are Stupid

Though economics was my first degree, sometimes I think economists have too much free time on their hands. This study is proof of that.

The State Cometh

Say your kid is behaving badly. Can you ground her after cutting off her internet access? In Quebec, the answer seems to be no! (Thanks to my student Dan Ramsay for sending me this story). This is truly amazing. Now the courts are going to become our children's surrogate parents. When the Liberals spoke of a national daycare program and many warned that this was the angle the state needed to take over control of families just like every other aspect of our life, the critics laughed and called them cranks. Now we are seeing this happen. What next, the kid can't watch Lost, so they call the night-court judge and petition.

Update: Now I read that the Liberal dominate Senate has decided that they indeed know parenting better than all of us and have passed a bill to ban spanking. No word on whether the gutless liberal-wannabe Tories will join them.

This Settles It, I think...

Not that I think there is any need to settle anything. Not that I think that those who always thought it wasn't natural will change their minds. Not even sure that such research makes sense. But somehow, facts matter.

From the BBC: "The brains of gay men and women look like those found in heterosexual people of the opposite sex, research suggests... A UK scientist said this was evidence sexual preference was set in the womb." Read more here.

"The Wind in the Willows" and the Hard Fist of the Criminal Law

I've been reading (truth be told, paraphrasing) Kenneth Grahame's The Wind in the Willows to my 5-year-old, one chapter each evening.  Last night he and I slogged through Chapter 6, where Badger, Mole and Rat attempt what (in more modern lay parlance) might be called an 'intervention" or what (in modern legal parlance) might be called a home invasion, kidnapping and unlawful confinement, all in order to prevent Toad from frittering away his fortune on motor cars.  Ironically, it is Toad who runs afoul of the criminal law, after he escapes, steals a car, "driv[es] to the public danger" and commits "gross impertinence to the rural police".  Convicted by the Chairman of the Bench of Magistrates, Toad is sentenced to 20 years' imprisonment (which, being fully half of a common toad's lifespan, amounts to no mere amphibean wrist-slap).

Grahame's account of the actual process of Toad's imprisonment (reproduced below) is, to say the least, striking, and could have been taken straight out of Dickens or Dostoevsky (or an Amnesty International report on Iran):

Black Appeal

My colleague James Muir linked to the Globe and Mail story about Conrad Black's perceptions on his appellate hearing. To see why Lord Black may have had his perceptions, you can hear the audio of the oral hearing here (HT Bashman). Unfortunately, the American appellate courts do not give public access to the briefs anymore persuant to a new rule that was passed last year - so I can't link to them. It is hard to say what the hearings mean - superficially (and this is what Black seemed to pick up on), the Judges were not buying the appellant's arguments one bit. The judges, Posner, Sykes, and Kanne, are all three Republican appointees. My impression of the judges' questions is that they held the lawyers to the high standard of review on appeal: i.e. error of law or blatant error in the finding of facts. There were persistent questions on whether the lawyers had objected below at the right time. The legal issue of "deprivation of honest services" that Black noticed the judges did not understand is one that has become so muddled in American law, that I didn't expect the Seventh Circuit to use this case to clarify it.

That being said, sometimes the judges play devil's advocate and so they may have been hiding their hand.

One thing I did notice is that the lawyers had not worked out a proper theory of the case. This may be because the facts are so complicated; but when Judge Posner started posing hypotehticals, sometimes the lawyers were not able to give a statisfactory answer. There were many questions about proposed jury instructions, but again when the lawyers were pressed about the correctness of their proposed instructions, the lawyers did not have a good response. In fairness, however, when you have four co-defendants with four teams of lawyers, it is very hard to have a coordinated legal strategy that is internally consistent. Again, had I been able to access the briefs, I may have a different view on this.

I would invite Canadian lawyers who are familiar with appellate practice to listen to the audio and submit their views on how Canadian courts would treat the similar procedural questions on appeal.

Update: I hope the link is working now.

Who did it? They did!

The excellent language blog, English, Jack reported in April that the Department of Justice, working around the clock to implement the Conservative Agenda, has issued a ruling on Them. Not only does the department now have a policy on them, it also has a policy on they, their, themselves and theirs. To be precise, the department has declared that the use of any or all of these pronouns as singular third person pronouns is now acceptable in drafting legislation. English, Jack's opinion: " I do hope that this sounds the death knell for the pointless proscription of singular they."

Up until now I have resisted this trend. I accept the need to avoid gender-specific language, but I have tried, and I have encouraged ('corrected') students to avoid using the third person plural pronoun in place of a singular noun. There are ways to do this: writing in plurals ('lawyers' instead of 'a lawyer' and thus 'them' instead of 'him' or 'her'), using "he or she" and its variants, using "he" and "she" for different categories (for example, in Robert Cover's classic article "Violence and the Word" he uses the feminine pronoun for the judge, the masculine for the accused), or justifying use (for example, when I write about jurors in 18C Nova Scotia, I use the masculine pronoun, but note that this is acceptable because only men were called as jurors).

The problem I have with the plural pronoun used in singular situations is with verb agreement. Take this pair of sentences:
"The professor's job is to teach students the law. He is doing a poor job if he does not help with writing skills too."
There are two alternatives using the plural pronoun here:
1) "The professor's job is to teach students the law. They is doing a poor job if they does not help with writing skills too."
2) "The professor's job is to teach students the law. They are doing a poor job if they do not help with writing skills too."
In the first option, the verb agreement is with the singular noun, which may prevent confusion as to what the pronoun refers, but there is no pronoun-verb agreement. In the second there is pronoun-verb agreement, but the verbs in the second sentence do not agree with the original noun.

The Department of Justice favours number 2, though in the several examples on the web page the authors studiously avoid having to show examples where agreement problems may arise. Likewise, the various writing guides they quote do not, at least in the passages quoted, address this question.

At this point, and as I head into another year of teaching, I am disinclined to accept "they" and its variants as singular pronouns, and will encourage my students to use plural general nouns combined with the plural pronouns. But, I am less certain than I once was on this, I may yet give in to the Department of Justice's recommendations and.I may give up my pointless proscription of singular they.

When Minds Don't Meet

In today's Globe and Mail Paul Waldie reports on Conrad Black's opinions about his appeal and the judges hearing it.

Scalia's 10 Rules of Persuasion

If you ever wanted to know what works for a judge, who better than Justice Scalia to tell you what work.  Business Week has summarized his top ten list is as follows (Via Bashman), which I reproduce:

1. Know your audience.

2. Lead with your strongest argument.

3. Communicate clearly and concisely.

4. Close powerfully and say explicitly what you want your audience to do.

5. Banish jargon.

6. Hone your public speaking skills.

7. Dress appropriately.

8. When you're not on your feet, you're on stage.

9. Look judges in the eye.

10. Don't chew your fingernails.

The Saga of Leo Johnston's Remains

Professor Jennifer Koshan of the University of Calgary's ABlawg has a comprehensive and excellent post on the awful awful legal battle between the widow and the mother of the murdered RCMP constable Leo Johnston.

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 as was Professor Koshan, who asks whether, "as a society, do we still believe that spousal relationships should be given this kind of priority [over the parental relationship]?"  For my own part, 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 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 as much as Professor Koshan by by Slatter J.A.'s refusal to grant the Metis Nation of Alberta leave to intervene in the appeal.  In fact, I thought it was, again, 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.