Sentencing For Indiginty to Human Remains and Tribunal System Fix

Someone dies, and the person beside them makes a choice that shocks everyone: no call for help, no report, just a body hidden away. We unpack a BC Provincial Court sentencing decision under Criminal Code section 182, the offence of offering an indignity to a dead body or human remains, and why the judge calls the conduct inherently serious even though there’s no finding that the accused caused the death. Along the way, we break down aggravating versus mitigating factors, the role of remorse and an early guilty plea, and how Gladue principles shape the court’s understanding of moral blameworthiness. 

We also talk about the realities that don’t fit neatly into legal categories: addiction, fear, and the ripple effects on family and community when a person is treated as “missing” for weeks. The sentencing math matters too, including enhanced credit for time served because of brutal protective custody conditions that resemble solitary confinement, and why the court still concludes that a conditional sentence at home would not meet denunciation and deterrence. 

Then the conversation swings to administrative justice and the BC Court of Appeal: a Whole Foods probationary firing that turns into years of litigation through the Workers’ Compensation system, judicial review, and parallel Human Rights Tribunal proceedings. We explain security for costs, why courts sometimes require it when an appeal is virtually without merit, and why overlapping tribunals can create expensive duplication. We close with a clear primer on habeas corpus under Charter section 10(c) and a key limit: when the Court of Appeal can, and cannot, appoint counsel. If you care about Canadian law, access to justice, and how courts balance principle with real life, subscribe, share the episode, and leave a review with the question you want us to tackle next.

Follow this link for a transcript of the show and links to the cases discussed.

Transcript

Rare Crime Explained

Michael Mulligan 0:26

Well, uh, he pled guilty. Uh and the offense that he pled guilty to uh is one that uh is uh not common, but uh looking at the authorities in this case, it does come up from time to time. Uh and the particular offense uh i is uh contrary to section 182 of the criminal code, and that section makes it an offense to improperly or indecently interfere with uh or offering an indignity to a dead body or human remains. That's a crime. Uh and I suppose on one level that was sort of makes sense that's a crime. The judge speaks about uh how in the past it's been talked about as uh activity which is, quote, very serious and inherently abhorrent, uh, and it relates to, as the judge pointed out, cultural and spiritual significance associated with the handling and treatment of the body of a deceased person. Um and so it uh like in this case, uh there's no uh requirement the person had anything to do with the uh the death or was at least criminally responsible for that, uh, but it's as viewed as a serious crime, and so this is a judge struggling with how do you sentence somebody for that. And here, uh the uh background of the man, as indicated in that leader, is that uh, you know, he's 48 years of age, he had no criminal record, he's indigenous, uh, he had two children from a previous relationship, and he had uh what can only be described as a horrific background uh in his life being sexually and physically abused by his father for years when he was a child, uh terrible circumstance uh growing up, and I must say that's the sort of thing you see with some frequency in GLADU reports for indigenous people who were being sentenced, just uh terrible circumstances uh earlier in their life. And so that's the factual matrix. And the event itself, you know, it wasn't something out of pulp fiction, um, the movie. Uh it was uh this fellow and uh this woman who was his partner, they'd been apparently living together for a year and a half, despite, and this may explain uh the uh action uh to some uh extent, the uh woman who passed away, the partner of this man, uh, was still married to a person described by the judge as a well-known organized crime figure. Oh. Um, and so I think there might have been concern that there could have been physical repercussions as a result of the her dying. Uh and like in pulp fiction, that one of the underlying issues here was drug use. Both this man and the woman who died were seriously addicted to drugs, uh, and uh they were uh in bed, woke up, and she was dead, probably related to the drugs. But instead of phoning the police or somebody or phoning uh somebody to help, uh he uh instead uh cleaned her body and uh put it in garbage bags and in a large freezer uh and didn't say anything. And then a month or so went by and the landlord hadn't seen the woman and became concerned, so phoned the police to do a wellness check. They showed up. Originally he wouldn't let them in. Next time they came back, after a couple of months, uh he let them in and they snooped around and eventually opened the freezer, asked, What's this garbage bag? He said turkeys. They kept looking and it wasn't turkeys. Um and so he wound up being arrested. He was also detained, that's the other fact pattern. He was held in custody, um, and in just really awful circumstances, uh he was put into protective custody, uh sort of isolated in prison, I guess, out of concern that the sociates of the well-known criminal uh figure would kill him. Um and so he spent a very long period of time in custody and amounting to uh sort of solitary or virtually solitary confinement, which had a negative impact on his mental health having no human contact. And so it's in that that that matrix a judge has to decide, well, how do you sentence this, right? Uh and you know, there's some elements of this offense that are not dissimilar to sometimes you see uh, you know, people charged with failing to remain the scene of a car accident, right? Where they had nothing to do, you know, the accident was not their fault, the offense was not staying, right? Uh just like here, there's no indicate there's no indication that he caused this person's death, it just that he responded in the way that he did. And it did cause dislocation for a lot and angst for a lot of people who thought this woman was uh just a missing person, and you know, friends and relatives of her uh were uh you know naturally concerned and horrified to find out what had become of her for that period of time, they didn't know where she was. And so a judge has this sort of list of things that he described as aggravating factors and mitigating factors, and so there's this long list of things that are he described as aggravating factors. One of the interesting things that was argued about there is there's a statutory aggravating factor in the criminal code that judges have to take into account if somebody is, quotes, abuses an intimate partner. And so there was legal debate about, well, how does that apply here? She she was deceased at the time this happened. Uh, but there's some authority that that can be interpreted to include impact on friends and family and community members, so that was taken into account. Uh, one of the things listed was failing to obtain medical care for her, but again, there's no indication that that was the cause of the death, or certainly an element of the offense, but he listed as a judge as an aggravating factor. Um judge found things like using garbage bags and putting a person in the freezer was an aggravating factor. Uh failing uh, you know, uh the fact that it had impacts or the fact that uh, you know, he's concerned about the drugs being found in the house, found that to be aggravating. Various mitigating factors, no criminal record, terrible remorse, early guilty plea, real guilt of plans, and those gladoo factors, including just a horrific background growing up. And one of the things ultimately the judge had to sort out is that the the crown asked for a sentence of two years in prison. Um, and the man's lawyer asked that if he was to be handed a prison sentence that he'd be permitted to serve that uh at home uh as a conditional sentence, like on house arrest. And in that regard, the judge had to look uh at sort of other cases to sort out is one of the first things to decide if a judge is imposing a sentence of less than two years, they need to first of all consider would the person be a risk to serve it on house arrest? If they're not a risk, because that's an available uh option for the judge. But a judge also has to consider whether that would be sufficient in terms of denunciation and deterrence and so on. Uh and so the judge looked at a variety of other cases, and surprisingly, there are a number of them in BC. Uh, one of the ones the judge looked at was uh from only 2024. Uh it was a circumstance where a man was given a uh two years uh jail sentence. Um he had uh a person pass away in bed with him. Uh I think it sounded like a dating relationship, but uh put her under the bed in duct tape and garbage bags after she had died. More disturbingly, in that case, apparently he had somebody else over to the house he was trying to have sexual relations with on the bed. So maybe bear that in mind if you're going on a dating site. Oh my god, terrible circumstance. So that person got two years less a day. Uh and the judge, despite all those factors which were mitigating, right? The early guilty plea, lack of criminal record, indigenous man, serious remorse, terrible time in custody, the judge decided that it wouldn't be enough to give him house arrest and decided it had to be a real uh in-prison jail sentence. Um and uh he had already served 191 days in jail waiting for sentencing. Uh he pled guilty early on, but various reports were ordered, as not is not uncommon. Uh pre-sentence reports, psychiatric reports, and so on. Uh Gladue report bringing out that history I indicated. And the judge did give uh increased credit for the time in custody because of just how terrible the conditions were for him that were none of his doing. Um they had to put him in segregation since his arrest, not because of his behavior, but in order to protect him. His mental health had declined as a result of that, and so the judge wound up reducing somewhat the sentence to 21 months from the 24 months the crown was asking for, to take that into account, and gave him credit for the time he'd spent in custody. But the net result of all those calculations is that he was uh sentenced to an additional three hundred and forty-three days in jail, followed by 18 months of probation. And so I thought it was just an interesting case to comment on, not only grim facts, obviously, uh, but uh just food for thoughts for people to reflect upon in terms of just the tensions involved when you're trying to come up with, you know, what's how do we properly deal with something which I think most people would agree is pretty abhorrent uh and inherently serious conduct. Um, and uh, but on the other hand, it it's not conduct that caused the underlying death. Um, and uh so uh that's the outcome. Um and so uh uh the youngest man will be spending an almost additional year in uh in custody, and hopefully he's physically okay, and hopefully the organized crime figure isn't uh isn't doing anything to him. It sounds like this man's been through a lot. So that's the latest for the BC Provincial Court in terms of how uh sentencing works in the case of a person who's uh pleads guilty to doing an indignity to a human body. That's the latest from the BC provincial court.

Adam Stirling 9:46

Michael Malcolm, Michael Malcolm, after all, it's sort of tribunal. How does that all work together?

ecurity For Costs And System Reform

Michael Mulligan 10:21

So the the particular decision just released from the BC Court of Appeal uh involves this woman who had been employed for a very short period of time by Whole Foods back in 2018. She started there. She lasted only 70 days and according to the company was fired after failing in evaluation during her probationary period. That's the background of it. Uh but the uh woman uh made a number of challenges to that outcome that are still reverberating now in 2026. And the particular thing that the Court of Appeal is dealing with was an uh appeal with from the Workers' Compensation Appeal Tribunal. Uh the way that works is she made a workers' compensation board claim, alleging that she had been fired uh because she reported a health and safety issue. That's the allegation she made, which is contrary to the Workers' Compensation Act. Uh and that was investigated by uh uh officer there. They found that didn't have merit. She appealed that then to the Workers' Compensation Appeal Tribunal, one of these myriad kind of specialized tribunals we have set up all around the province. We have Workers' Compensation Appeal Tribunal, we have things like the Human Rights Tribunal, these things that sort of investigate uh or adjudicate claims made under a variety of different pieces of legislation. And so she alleged that she was fired because of this reporting of a health and safety issue. The that was looked into. The officer there said no, that's not why you're fired, you're fired because of your failed evaluation. She then appealed that to the workers' compensation appeal tribunal, she lost. Those like appeals to the um what do you call it, uh the human rights tribunal can go on for days and days. And it's apparent looking at some of the earlier cases here, just how long and how embroidered some of those kinds of hearings and appeals can be, and they are accordingly extremely expensive, right? If you have some hearing that goes on for a week with multiple applications and so on, it's going to cost tens of thousands of dollars if you're uh somebody who's on the other end of one of those uh kind of claims. Uh and so she had one of these long claims, Workers' Compensational Appeal Tribunal, she lost. She then appealed that to the BC Supreme Court by way of the judicial review, unsuccessful. She appealed issues then there to the Court of Appeal, uh, which is how we get to 2026. And so she's in the Court of Appeal uh for a variety of things. The Whole Foods, one of the things they're asking for is security for costs. And the idea there is that if you lose, you're going to be ordered to pay costs, but if the person has no money, good luck collecting it. And Whole Foods was not unreasonably concerned that this woman would not be able to pay uh uh if she lost there. And indeed, uh her uh response to that was that, well, she could pay over time if she didn't succeed, although she doesn't currently have the money to pay for things because of her various other expenses. Uh and so the Court of Appeal pointed out that uh sort of in general terms they're slow to order costs in uh security for costs where somebody doesn't have any money, because that may mean the claim can't proceed, but where the claim is, quote, virtually without merit, close quote, uh, they may well do so, even if it has that effect. One of the things that was pointed out by the Court of Appeal here, uh, they've determined that there was a second uh appeal uh in the Court of Appeal dealing with the same fact pattern exactly by the same person, because in addition to the claim which was being litigated with respect to the workers' compensation appeal tribunal, uh, she had also brought a human rights tribunal complaint where she in that case alleged that she had been fired for the same job, not because of reporting health and safety violation, but she alleged she was fired because of discrimination based on disability, physical disability, race, sex, and sexual orientation unsuccessfully. And that was also going up to the court of bill. Those, of course, when you look at those two things, are on the face of it at least, rather inconsistent. If you're alleging I got fired not because I failed my test, but because I reported a health and safety violation, by the way, other filing in fact I was fired because of discrimination based on those other factors. And again, those human rights tribunal things now can go on for days, and so they can be very expensive pieces of litigation. And so one of the thoughts I had reading this case and the underlying uh bits and pieces of it, because it's gone on for so long, um, and I must we've talked about other cases on this show from human rights tribunal and uh other things like that, which can be very lengthy, um, is that it may make sense to uh if uh try to uh rationalize all those things in a way that would be more cost effective and expedient. And the first thing that came to mind for me is we've talked about before the uh civil resolution tribunal we've had set up in British Columbia that's intended to uh resolve small claims, like very small claims, like if you're suing somebody for$5,000 or less, you can go to the Civil Resolution Tribunal and they'll adjudicate those disputes in a variety of ways, like uh online material or written submissions, or sometimes by Zoom or on the phone, uh and come up with uh decisions in a way that is sort of in keeping with the uh quantum you know, the value of the claim, right? You know, there's no point having a week-long hearing over a thousand dollar claim. You're better off just going to work, right? Yeah, and so it's sort of a process designed to fit that. Now, the government has expanded the use of that civil resolution tribunal, in my judgment, into things they really ought not to do, like for example, when there's a dispute with um ICBC, because that's a government-owned entity, and the people there are not independent like judges are, they're short-term government employees. But for sorting out um things like uh an appeal under the human uh under the uh workers' compensation system, or sorting out a uh human rights uh complaint, you know, alleging that you were fired for some purpose of uh facing some discriminatory factor, it seems to me that that process would be much more in keeping with sort of what's at stake in terms of the quantum of potential remedies, right? And I must say that tribunal can deal with things that are much more than that in the ICBC context, more than$5,000. And the other advantage of that is it would kind of like it would avoid things like in this case, where you've got two completely parallel processes that may be internally inconsistent going on and duplicating hearings into what went on and why was this person fired. If you had one entity like that deal with it rather than having a separate human rights tribunal and a separate group of people on the workers' compensation appeal tribunal, and there are a bunch of these all over government, right? Um, you could uh likely reduce the cost and produce a lot of uh efficiency both in the hearing process and duplicating um things like we've seen in this case. So um I thought it was a useful thing to comment on, both in terms of the specifics of it and how that um security for costs issue works, uh, but also just more fundamentally, so people know there are all these parallel appeal processes out there, and they can go on for a very long period of time, and they can be extremely expensive. And this is an example uh of that, and that would be a way to remedy it. So that's latest on the uh human rights and workers' compensation appeal process uh off to the court of appeal, it goes.

Adam Stirling 17:55

All right, we've got two and a half minutes left out at 59. What next?

Michael Mulligan 17:59

Yeah, final case uh briefly is a case involving an application uh for the appointment of counsel in the court of appeal for what's referred to as a habeas corpus application. Now, you might have heard that term. Sometimes you hear it in the U.S. context with appeals there. Habeas corpus is Latin. It literally translates to produce the body, um, and it has a long legal history. In fact, there's a constitutional right to it, section 10c, for those keeping track at home. Uh that section of the charter says you have the right to determine the validity of a detention by way of habeas corpus, uh, to determine if the detention is lawful. And the history of that is it sort of uh explain why you're holding this person. It's sort of what would prevent you from being disappeared in the middle of the night. Um, you know, produce a body and a court could determine whether you're lawfully being detained. This case was a man who was a prisoner at mission institution, and he was uh making a habeas corpus application uh to try to get uh try to assist with an application for parole. I don't get too far into those weeds, but that's what he was asking, that's what he's underlying he's asking for. But he was wanting a lawyer appointed to help him. And ultimately the Court of Appeal concluded that they did not have authority to do that uh because well there's a section of the criminal code, 684, that allows for the appointment of counsel to help with criminal appeals, and some habeas corpus applications can be criminal-like and related where that does occur. Like, for example, there are cases where somebody might say, hey, there's no valid warrant to detain me, or there's something oddball went on I shouldn't be imprisoned here. That's genuinely a criminal sort of thing where a lawyer could be appointed. Where you have this kind of a habeas corpus application that's more civil in nature, the court found that it didn't have any authority to do that because the court of appeal is a statutory court, and unless you can point to a law that allows them to do that, they don't have authority to appoint a lawyer. And so the upshot is that the man won't get a lawyer to help with his habeas corpus application, at least when paid for. And so that's what habeas corpus is, uh, and that's one of the limitations in terms of when a lawyer can be appointed to help you. They can't be appointed to help you on a civil case, and sometimes, even though the issue is whether you should be in prison, uh, that can be civil and uh no legal aid or lawyer may be available. That's the latest from the Court of Appeal.

Adam Stirling 20:18

Michael Mulligan was legally speaking during the second half of our second hour every Thursday. Michael, thank you so much. Pleasure as always. Thanks so much. Always great to be here. All right. Quick break. We'll be back from the news right after this.