¹ Sopinka, John, Lederman, Sidney N. & Bryant, Alan W., The Law of Evidence in Canada, 2d ed. (Toronto; Butterworths, 1999) at para. 16.122.Google Scholar

² Young, Alison Harvison, “Child Sexual Abuse and the Law of Evidence: Some Current Canadian Issues” (1992) 11 Can. J. Fam. L. 1 at para 1 [QL].Google Scholar

³ Lambek, Michael, “The Past Imperfect: Remembering As Moral Practice” in Antze, Paul & Lambek, Michael, eds., Tense Past: Cultural Essays in Trauma and Memory (London: Routledge, 1996).Google Scholar

⁴ Merry, Sally Engle, “Law and Colonialism” (1991) 25 Law & Soc'y Rev. 890 at 892.CrossRefGoogle Scholar

⁵ Merry, Sally Engle, “Resistance and the Cultural Power of Law” (1994 Presidential Address) (1994) 29 Law & Soc'y Rev. 11 at 14.CrossRefGoogle Scholar

⁶ Connecting the act of remembering with justice may be especially pertinent to acceptance of Aboriginal oral histories in Canadian courts. See Borrows, John, “Listening for a Change: The Courts and Dral Tradition” (2001) 39 Osgoode Hall L.J. 1, especially at 25Google Scholar, where he explains that “[t]he mere presentation of Aboriginal oral evidence often questions the very core of the Canadian legal and constitutional structure. In many parts of the country certain oral traditions are most relevant to Aboriginal peoples because they keep alive the memory of their unconscionable mistreatment at the hands of the British and Canadian legal systems.” I suggest that legal respect for these moral aspects of the act of remembering may be one method through which Aboriginal oral histories can be treated as equal to other historical forms of evidence, as Borrows advocates.

⁷ R. v. Farley (1995), 99 C.C.C. (3d) 76 (Ont. C.A.) at 81 per Doherty J.A.

⁸ “[Cross-examination's] most dramatic quality is its power to detect willfully false testimony, but more valuable is its capacity for bringing to light errors of perception, defects of memory and deficiencies of narration.” Morgan, E.M., “The Relation Between Hearsay and Preserved Memory” (1927) 40 Harv. Law Rev. 712 CrossRefGoogle Scholar as cited in Sopinka et al., supra note 1 at para. 16.124.

⁹ Comack, Elizabeth, “Theoretical Excursions” in Comack, , ed. Locating Law: Race/Class/Gender Connections (Halifax: Fernwood Publishing, 1999) at 21, 23Google Scholar, citing Naffine, Ngaire, The Law and the Sexes: Explorations in Feminist Jurisprudence (Sydney: Allen & Unwin, 1990) at 24 and 52.Google Scholar

¹⁰ Lambek, supra note 1 at 237–8.

¹¹ Ibid. at 238.

¹² Ibid.

¹³ Ibid.

¹⁴ R. v. Nikolovski, [1996] 3 S.C.R. 1197 [QL]. at para. 21 per Cory J. Also see R. v. Smith (1986), 71 N.S.R. (2d) 229 at 237, where the judge stated “[a] photograph can often more clearly and accurately portray or describe persons, places or things than a witness can by oral evidence. They are not subject to the difficulty inherent in oral evidence of absorbing and relating the mass of detail and then remembering it.” As cited in Sopinka, supra note 1 at para. 2.18. One of the most well-known legal uses of a video recording is the videotape of four white Los Angeles police officers beating Rodney King, a black man, at the trial of the officers. It was the video, rather than the person who filmed the beating that was “cross-examined” for the credibility of what it showed. In the first trial of the four police officers, the defense lawyers played the video in slow motion, without any sound – diluting and limiting its testimony in the manner of a thorough cross-examination of a witness. The frame-by-frame movements of Rodney King, extracted from the video's full testimony, were then easily read as either self-defense or threat. The police officers were acquitted. See Alexander, Elizabeth, “‘Can you be BLACK and Look at This?’ Reading the Rodney King Video(s)” in The Black Public Sphere Collective, eds. The Black Public Sphere: A Public Culture Book (Chicago: University of Chicago Press, 1995) at 96.Google Scholar Note, however, that there is at least one Canadian decision which made some passages of a videotape inadmissible as evidence, due to editing or to their being played in slow motion. See R. v. Maloney (no. 2), (1976) 29 C.C.C. (2d) 431 (Ont. Co. Ct.).

¹⁵ Lambek, supra note 3 at 235.

¹⁶ Ibid. at 240.

¹⁷ Horn, Sharon K. & Yamamoto, Eric K., “Collective Memory, History and Social Justice” (2000) UCLA L. Rev. 1747 at 1761.Google Scholar

¹⁸ Bal, Mieke, “Introduction” in Bal, Mieke, Crewe, Jonathan and Spitzer, Leo, eds. Acts of Memory: Cultural Recall in the Present (Hanover and London: University Press new England, 1999) at x.Google Scholar

¹⁹ Rappaport, Joanne, The Politics of Memory: Native Historical Interpretation in the Colombian Andes (Cambridge, U.K.: Cambridge University Press, 1990) at 18.Google Scholar

²⁰ Lambek, supra note 3 at 239.

²¹ Hom and Yamamoto, supra note 17 at 1765; for a full discussion, see Ibid. at 1761–65.

²² The section including both of these offenses reads as follows:

182. Every one who

(a) 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

(b) improperly or indecently interferes with or offers any indignity to a 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.

²³ R. v. Mills (1992), 77 C.C.C. (3d) 318 at 320.

²⁴ See Counts, David R. & Counts, Dorothy A., eds., Coping with the Final Tragedy: Cultural Variation in Dying and Grieving (Amityville, N.Y.: Baywood Publishing, 1991).Google Scholar

²⁵ Peter G. Ramsden, “Alice in the Afterlife: A Glimpse in the Mirror” in Counts and Counts, Ibid. at 27–28.

²⁶ See Whaley, Joachim, “Introduction” in Whaley, Joachim, ed., Mirrors of Mortality: Studies in the Social History of Death (New York: St. Martin's Press, 1981)Google Scholar, where he discusses the influence and critiques of Philppe Ariès work in the 1970s. Whaley notes that much of the work influenced by Aries claims that ‘modern’ approaches are unhealthy, and this implies certain assumptions about how attitudes towards death have changed (at 4). He concludes that attitudes towards death have to be considered in their wide-ranging social and historical contexts, and that “the ways in which it is generally permissible for men [sic] to express grief are both constantly changing and linked to some of the most important characteristics of any human society (at 14).

²⁷ Jackson, Charles O., “Death Shall Have No Dominion: The Passing of the World of the Dead in America” (1977) 8:3 Omega 196.Google Scholar

²⁸ Ibid. at 198. Mortality rates in Britain only began to decline in the 1870s and death in families was common through the 19^th century. See Jalland, Pat, Death in the Victorian Family (Oxford: Oxford University Press, 1996) at 4–6.CrossRefGoogle Scholar

²⁹ Jackson, supra note 27 at 196.

³⁰ Ibid. at 197.

³¹ Ibid. Spiritualism spread to Great Britain during this time, but did not grow much there or have any widespread effect on funeral customs until after WWI. Spiritualism continued to grow in Britain until about 1955, according to Jalland, supra note 28 at 365. There is debate about the purpose, effectiveness, and extent of mourning codes among middle, lower and upper classes in Victorian times. Glennys Howarth explains that class differences influenced funeral rites in the 1800s and continue to do so today in “Is There a British Way of Death?” in Charmaz, Kathy, Howarth, Glennys & Kellehear, Allan, eds., The Unknown Country: Death in Australia, Britain and the U.S.A. (Hampshire: MacMillan Press Ltd., 1997) at 87, 89.CrossRefGoogle Scholar Also see Jalland, supra note 28 for discussion of the growing social concern over elaborate Victorian funerals, and desires for simple funerals and cremation.

³² Moller, David Wendell, Confronting Death: Values, Institutions and Human Mortality (New York: Oxford University Press, 1996) at 112.Google Scholar

³³ Jackson, supra note 27 at 198; also see Moller, Ibid. at 112.

³⁴ Moller, supra note 32 at 18. Also see Northcott, Herbert C. and Wilson, Donna M., Dying and Death in Canada (Toronto: Garamond Press, 2001) at 51–52.Google Scholar

³⁵ Moller, supra note 32 at 26.

³⁶ The imposition of control over dying people in hospital is vividly illustrated and examined in Kaufert and O'Neiľs discussion of the cultural conflicts between Ojibway and Cree families and hospital personnel in Winnipeg hospitals. See J.M. Kaufert & J.D. O'Neil, “Cultural mediation of dying and grieving among Native Canadian patients in urban hospitals” in Counts and Counts, supra note 24.

³⁷ The hospice and (later) palliative care movements, which grew quickly through the 1970s and 1980s, were counters to the institutionalization of dying and technological intervention in death which combined the medical aspect of pain relief with community and volunteer caring and home support teams. In both the U.S. and Britain, there have been analyses arguing that the hospice movement has itself become somewhat institutionalized, and that the development of a professional palliative care specialty may be taking the hospice movement away from its original construction of dying and death as natural processes. See Seale, Clive, Constructing Death: The Sociology of Dying and Bereavement (Cambridge, U.K.: Cambridge University Press, 1998) at 113–17.CrossRefGoogle Scholar Northcott and Wilson comment that even though most end-of-life care occurs in the home in Britain, dying occurs in hospital after one-to-three day stays, see supra note 34 at 51.

³⁸ See Locke, Margaret, “Death in Technological Time: Locating the End of Meaningful Life” (1996) 10 Medical Anthropological Quarterly 575.CrossRefGoogle Scholar See 579–88 for her discussion of how “brain-death” became the standard medical and legal definition of death in the U.S. and Canada after the introduction of ventilators and organ transplantation, with little public concern. Locke compares this to the great public and media concern about the possible abuses of such a definition of death.

³⁹ Jackson, supra note 27 at 200.

⁴⁰ See Bennet, Gillian, ‘Alas, Poor Ghost!’: Traditions of Belief in Story and Discourse (Logan, Utah: Utah State University Press, 1999) at 9–16.CrossRefGoogle Scholar Bennet's study in Manchester shows a large extent of belief in some connection between the living and dead worlds – “visitations” from the known dead were common among her interviewees, at 49. Many interviewees attempted some sort of rationalization of their experiences, even if they did not believe them, at 16–17. Bennet concludes that traditions of belief and of disbelief are “cultural options, competing discourses”, at 38. Bennett could only access the experiences of her interviewees by adapting her terminology specifically to that of interviewees after noting some terms seemed to close discussion, see 13–15. The resultant idiosyncratic terms used to describe experiences encountering the dead and the attempts at rationalization themselves, seem to point to the cultural dominance of “rationality” and show that the interviewees may not have expected to have their experiences accepted or believed.

⁴¹ Ibid. at 28–29.

⁴² See Robbins, Margaret, “The Donation of Organs for Transplantation: The Donor Families” in Howarth, Glennys & Jupp, Peter C., eds., Contemporary Issues in the Sociology of Death, Dying and Disposal (London: MacMillan Press, 1996)Google Scholar and Sharp, Lesley A., “Organ Transplantation as a Transformative Experience: Anthropological Insights into the Restructuring of the Self” (1995) 9:3 Medical Anthropology Quarterly 357.CrossRefGoogle ScholarPubMed

⁴³ Green, Judith Strupp, “The Days of the Dead in Oaxaca, Mexico: An Historical Inquiry” in Kalish, Richard A., ed., Death and Dying: Views from Many Cultures (Farmingdale, N.Y.: Baywood Publishing, 1980) at 56.Google Scholar The Day of the Dead is an important festival which (in the mid-1960s) included buying and selling of sugar candies in a skull shape, skeleton toys, the bread of the dead, visiting and blessing graves and eating and playing games in cemeteries. Further, in Sicily, connection with the dead is particularly strong between children and their dead ancestors, after whom they are named, and from whom they receive gifts on the day of the dead. See Manganaro, Jean-Paul, “La Fête des morts en Sicile” (1993) 553–54 Critique 382 at 382, 384.Google Scholar

⁴⁴ Mellor, Philip A., “Death in High Modernity: the contemporary presence and absence of death” in Clark, David, ed. The Sociology of Death: theory, culture, practice (Oxford: Blackwell Publishers, 1993) at 11.Google Scholar I do not see Mellor's use of the terms public and private here as oppositional or exclusive of each other.

⁴⁵ Ibid. at 12. Mellor applies the thoughts of Anthony Giddens to his theoretical analysis of how death can be both present and absent in Western societies. Grief is seen as “private” in England, according to Tony Walter, “Emotional reserve and the English Way of Grief” in Charmaz, et al., supra note 31 at 132–34. Moller sees mainstream American society as allowing approximately a week for public expressions of grief, and as expecting private management of grief afterwards. Moller, supra note 32 at 18.

⁴⁶ Mellor, supra note 44 at 18.

⁴⁷ Ibid. at 19.

⁴⁸ John A. O'Connor, “Good Stories from There Develop Good Care Here: A Therapeutic Perspective” in Counts and Counts, supra note 24 at 274. O'Connor, is a chaplain serving “predominantly W.A.S.P., if not by birth, then by temperament” people in a tertiary care hospital in Canada.

⁴⁹ Philippe Ariès states that early Christians were concerned that bodies not properly buried or whose graves were violated might not rise on Judgement Day. Ariès, P., The Hour of Our Death trans. Weaver, Helen (New York: Alfred A. Knopf. 1981) at 31–32.Google Scholar

⁵⁰ 12 AD.& E. 775 (1840).

⁵¹ Ibid. at 778.

⁵² Ibid.

⁵³ Vol. XII Queen's Bench Division 247.

⁵⁴ Ibid. at 250.

⁵⁵ Ibid. at 253.

⁵⁶ 2 Den. 325.

⁵⁷ The Queen v. Price, supra note 53 at 253.

⁵⁸ Ibid. at 256.

⁵⁹ Several cases deal with who has the duty or right to bury. In some cases, there are disputes over who has the right to decide how, where or according to what religious rites a deceased should be buried. See Saleh v. Reichart (1993), O.J. No. 1394 (Ont. Gen. Div.); Hunter v. Hunter (1930), 65 O.L.R. 586. Others are disputes over who is responsible and to what extent for funeral expenses. See Chernichan v. Chernichan Estate (2001), A.J. No. 1429 Alta. Q.B. [QL]; Anderson v. Walden, [1960], O.R. 50 (Ont. CA.); Routtu v. Routtu (1955), 1 D.L.R. 627 (St. John County Court, N.B.); Schara Tzedeck v. Royal Trust Co. (1951), 2 D.L.R. 228 (B.C.S.C), aff'd (1952) 4 D.L.R. 529; Davey v. Rur. Mun. Cornwallis (1931), 2 D.L.R. 80 (Man. CA.). Others ask whether compensation can be awarded when funeral homes or other entities which have taken on the duty to bury have accidentally, negligently or willfully acted against instructions from those with the original duty or right to bury. See Mason v. Westside Cemeteries Ltd. (1996), O.J. No. 1387 (Ont. Gen. Div.); McNeil v. Forest Lawn Memorial Services Ltd. (1976), 72 D.L.R. (3d) 556 (B.C.S.C); Edwards v. Armstrong Funeral Home (1931), 1 D.L.R. 676; Miner v. C.P.R. (1911), 3 Alta L.R. 408 (CA.). A recent request for summary judgment involving the duty to bury was rejected, however, because the judge in Bastien v. Ottawa Hospital (General Campus) (2001) 56 O.R. (3d) 397 [QL] stated that what the standard of care was for a “decent and dignified burial”, and whether that standard of care had been met by a hospital undertaking to bury premature infants who had died shortly after birth, were triable issues [at paras 48 and 49].

⁶⁰ [1898] 2 C.C.C. 255.

⁶¹ Ibid. at 256.

⁶² I focus on two upper court cases and one lower court case wherein the charges against the accused are centred on offering an indignity to a human body. Other cases involving primarily this charge are: R. v. Lodue, [1965] 4 C.C.C. 264; and R. v. LeBlanc, [1990] O.J. No. 2654. In most of the other cases where discussion of this charge is raised, it is in the context of determining whether an accused is guilty of first degree murder due to killing while committing an underlying offence (most often, the underlying offence is sexual assault) or guilty of second degree murder because the sexual activity forming the subject of the charge occurred after death, thus, the charge being interference with a dead body. See R. v. Richer, [1993] A.J. No. 503 (C.A.); R. v. Fliss, [1997] B.C.J. No. 3069 (B.C. Prov. Ct.) (preliminary inquiry). In some cases, where an accused is found guilty of second degree murder, that accused may also be found guilty of interference with a dead body; see R. v. Smart, [1997] A.J. No. 657 (Alta Q.B).

⁶³ (1992), 77 C.C.C. (3d) 318.

⁶⁴ Ibid. at 328.

⁶⁵ Ibid. at 325.

⁶⁶ Ibid. at 326.

⁶⁷ Ibid. at 327.

⁶⁸ [1989] O.J. No. 809 (Ont. Prov. Ct).

⁶⁹ Ibid. at 3.

⁷⁰ (1994) 92 C.C.C. (3d) 1

⁷¹ Ibid. at 5.

⁷² Ibid. at 7.

⁷³ Ibid. at 8.

⁷⁴ See Dahl, Tove Stang & Snare, Annika, “The coercion of privacy: A feminist perspective” Smart, Carol & Smart, Barry, eds., Women, Sexuality and Social Control (London: Routledge & Kegan Paul, 1978) 8 at 12.Google Scholar

⁷⁵ See supra notes 8–9 and accompanying text.

⁷⁶ See supra notes 44–46 and accompanying text.

⁷⁷ Rose, Nikolas, “Beyond the Public/Private Division: Law, Power and the Family” (1987) 14 J.L. & Soc'y 61 at 3.CrossRefGoogle Scholar

⁷⁸ This, of course, is culturally-specific. The Mexican Day of the Dead (at least until the mid-1960s) involved playing games and dice, and eating lunch at the graves of deceased friends and relatives. See Green, supra note 43 at 56. Further, the removal of cemeteries from city centres and churches began during the Enlightenment, partially through the efforts of early public health reformers. See Whaley, supra note 26 at 6, discussing the work of Philippe Ariès.

⁷⁹ 25 U.S.C., c. 32, (1990) [“NAGPRA”].

⁸⁰ Ibid. para. 3002(a).

⁸¹ Ibid. para. 3002 (d)(1).

⁸² Ibid. para. 3005.

⁸³ NAGPRA, para. 3001 (3) reads: “‘cultural items’ means human remains and – (A) ‘associated funerary object’ which shall mean objects that, as a part of the death rite or ceremony of a culture, are reasonably believed to have been placed with the individual human remains either at the time of death or later, except that other items exclusively made for burial purposes or to contain human remains shall be considered as associated funerary objects.”

⁸⁴ Ibid. ff 295, 43 C.F.R. para. 10.2(d)(1).

⁸⁵ 894 F.Supp. 1397 (D. Hawai'i) (1995).

⁸⁶ Ibid. at 1404.

⁸⁷ Ibid.

⁸⁸ Ibid. at 1406.

⁸⁹ Ibid. at 1407.

⁹⁰ Ibid.

⁹¹ Ibid. fn 9, at 1409.

⁹² [1993] O.J. No. 601 [QL].

⁹³ R.S.O. 1990 c. C-4. This Act is to be repealed and replaced by the Funerals, Burials, Cremations and Related Services Act, S.O. 2002, c. 33, s. 114 (not yet in force). The sections relevant to discovery of burial sites and unapproved cemeteries and notices and investigations subsequent to discovery remain substantively the same.

⁹⁴ Cemeteries Act R.S.O. 1990, c. C-4.

⁹⁵ Ibid. s. 69, 70 and 71.

⁹⁶ Ibid. s. 71(3).

⁹⁷ Ont. Reg. 133/92 s. 2(2) 1–6.

⁹⁸ Ont. Reg. 133/92, s. 7(2).

⁹⁹ Poplar Point Ojibway Nation v. Ontario, supra note 92 at 28.

¹⁰⁰ Ibid. at 22.

¹⁰¹ Ibid. at 4.

¹⁰² For the Ojibway, all the land is sacred, there is no real separation between sacred and profane as found in Western, Christian society. Places such as High Falls may become particularly spiritually important, but this does not invoke a separation between sacred and profane. See Hamilton, Scott, Morrisseau, Ron & McCrady, Chief Theron, “New Solitudes: Conflicting World Views in the Context of Contemporary Northern Resource Development” (1995) 19 Canadian Journal of Archaeology 3 at 15.Google Scholar

¹⁰³ Ibid. at 9.

¹⁰⁴ Ibid. at 16.

¹⁰⁵ Ibid. at 9.

¹⁰⁶ Poplar Point Ojibway Nation v. Ontario, supra note 92 at 23.

¹⁰⁷ Ibid. at 32. This is a fine example of the “unitary language” of law “which rigorously endeavours to control both its own meaning (the way in which law is to be read) and the meaning of other related languages – those for instance of morality, religion and politics – where they come into contact with the discourse of law.” Goodrich, Peter, Reading the Law: A Critical Introduction to Legal Method and Techniques (Oxford: Basil Blackwell, 1986) at 188.Google Scholar

¹⁰⁸ Poplar Point Ojibway Nation v. Ontario, supra note 92 at 24.

¹⁰⁹ Jean Baudrillard argues that the cemetery was “the first ghetto” in Western society. The exclusion of the dead has created a modern Western society in which “it is not normal to be dead”, and thus, I would argue, the importance of keeping the dead separate and even hidden from the world of the living in dominant Western culture. See Baudrillard's, Symbolic Exchange and Death, trans, by Grant, Iain Hamilton (London: Sage Publications, 1993) at 126.Google Scholar

¹¹⁰ Poplar Point Ojibway Nation v. Ontario, supra note 92 at 24.

¹¹¹ Ibid. at 34.

¹¹² Joanne Rappaport uses this phrase to describe how non-Western historical consciousness, particularly that of colonized peoples, understands and uses images of the past and historical knowledge, recognizing how they are bound to the present. It is not that native historians have no idea of causation or linear historical processes. Rather, issues in the present, such as land disputes, political agreements, inheritance disputes and building collective identity all rely on knowledge of the past: “The non-narrative, non-stylised and episodic nature of the historical vision is fundamental to its usefulness: flexibility and ambiguity permit knowledge to be used in a variety of forms across a broad array of situations.” Supra note 19 at 10–11.

¹¹³ Paul Antze & Michael Lambek, “Introduction: Forecasting Memory” in Antze & Lambek, supra note 3, at xx.

¹¹⁴ Hom and Yamamoto, supra note 17 at 1765.

¹¹⁵ White, James Boyd, “Law as Rhetoric, Rhetoric as Law: The Arts of Cultural and Communal Life” (1985) 52 U. Chicago L. Rev. 684 at 688, 690.CrossRefGoogle Scholar

¹¹⁶ The structures of presentation for cases under judicial review, and the general (rather than aboriginal-specific) nature of the Cemeteries Act, made presentation of the attachment to the burial as a justice claim difficult. Also see Clifford, James, “Identity in Mashpee” c. 12 of his The Predicament of Culture: 20^th Century Ethnography, Literature and Art (Cambridge; Harvard University Press, 1988)Google Scholar for discussion of the legal struggle of the Mashpee to be recognized as an “Indian tribe” in the U.S. as the basis for a land claim. Circumscription of the witness' stories, imposition of a requirement of continuity as a “tribe” and Western notions of cultural “authenticity” prevent any just engagement with the real dispute before the court.

¹¹⁷ The Poplar Point Nation was never consulted regarding the development of the dam because they are an unregistered group. They erected blockades when development of the dam began (approximately one year prior to this court case) and were involved in court action prior to the dispute under the Cemeteries Act. Additionally, the Nipigon Hydro Company asked for and received an exemption from environmental assessment of the dam development. See Hamilton, Morrisseau and McCrady, supra note 102 at 4–6.