 Good evening everybody. It's a pleasure to see the group of you here today. My name is Joshua Shaw and I'm a Shulik fellow appointed as an assistant professor here at Shulik School of Law at Dalhousie University where I am presently teaching torts and jurisprudence to the JV students. Tonight I will be lecturing on laws that affect the use and disposal of the human body and parts of that body. I first wish to acknowledge Shirk Social Sciences and Humanities Research Council of Canada for the funding that they provided to me in support of my PhD which much of this research comes from as a recipient of a Joseph Armand Bob Brady CGS doctoral scholarship. I also wish to acknowledge that Dalhousie University is located in McMoggy, the ancestral and unceded territory of the McMog. I wish to treat today's lecture as much as possible as an ordinary law class. I want to treat you as if you're my torts law students. Of course I'm going to endeavor to teach this in the most accessible way that I can acknowledging that not all of you have a legal education. However I hope that this will approximate what a law class would look like in a law school. To that end I have certain objectives for the class that I will set out first. Then we'll go through some background terms and context. The bulk of today's lecture will be dedicated to briefing contextualizing and conceptualizing historical cases and legislation as well as contemporary cases and legislation. I'll reflect upon some field observations from my work in interviews and collecting creative works from research participants and then reflecting upon those observations in the field in relation to the historical and contemporary cases and legislation. I wish to tentatively pause it an alternative framework which I anticipate that my next research project will largely be embodied by and perhaps my life's work will be that. So do not expect full complete answers yet. I'm still working tentatively toward it. So in terms of objectives there are three categories of objectives I'd like us to consider. The first as you can see in the bold, hopefully see, radio-decedent die persuasive reasons. I'll explain in a moment what those terms mean but for the time being we can think of those as legal rules. Those are the rules that from court decisions we look to to try and reason through what the law ought to be in future decisions. So in terms of those radio-decedent die persuasive reasons I want us to go through historical precedents that establish principles of law that did or continue to inform the disposal of the human body and its parts as well as modern developments culminating in dignified disposal, the work in skill exception and guided discretion. These are also terms how to find later on in a moment when it's appropriate. Incidental to focusing on the case law I wish to also identify some relevant statutes I wish to help you also be able to identify those statutes. This might be anatomy acts, hospital acts, the criminal code, human tissue legislation. These statutes tend to regulate on the boundaries of this area not so much in forming the core of what ought to be done with a body or its body parts. So there are certain contexts in which the statutes apply but generally it doesn't provide a universal framework to govern what happens. And so that's where we rely upon the common law to try and better appreciate what ought to happen with them. So while the focus will be on case law, common law, I will be identifying some statutes along the way to help us appreciate the proper legal framework. Then there are other objectives that I wish for us to keep in mind. I always have other objectives than just the primary learning of the law when I teach law students because I want those law students to learn about a broader context in which they're learning about the law. Law is never just a simple rule. You can't go to a list of things and just point to it. That's a clear rule. Law is very rarely like that, at least in the common law systems. So part of our objectives will be to identify legal cultures and theories which then are the basis of coming to those rules. Those are important for understanding how to come to and argue to make claims about certain legal rules. Another element, especially in the area that I study, there are plural legal traditions. That means that law can't be treated as this monolithic thing. There isn't just a single law for a jurisdiction. Rather, a legal system often has multiple different types of traditions within it. Historically, this is very much true in English law and you'll see this in a moment. There are multiple, sometimes parallel and sometimes contesting areas of law. But to better appreciate how conduct is governed by law, we need to understand how these different traditions intersect, how they interact, and how they conduce together behavior. And this carries on into Canadian common law, especially as we begin to think about the fact that Quebec has a civil law system in addition to the common law systems and other jurisdictions and the indigenous legal traditions that are increasingly being recognized in the Canadian legal system. But of course, which are valid outside of the legal systems recognition of them. And lastly, this won't be a huge focus, but we'll reflect a little bit on how social research methods may inform legal theory and the doctrines upon which we develop from those theories. I'm limitedly addressing those through the field observations I've made through my interviews and the creative exercises that my participants created. But before we begin, I need to set out some much needed context and terms about our legal system. The first of which is the common law. I've used it a few times already. What is it that I mean by common law? We can understand this in a general sense as law identified and interpreted by certain courts, courts that have the authority under the common law to decide the common law. Institutionally, historically, this arose out of custom, just regular usage. Didn't have to necessarily be in a verbal form, it could just be a matter of conduct. So it developed out of custom and unwritten principles, which became solidified into a more coherent system through the sovereign establishing certain courts in favor of the sovereign. Courts of common law. Common law courts act according to principles of precedent, where prior decisions ought to inform present ones. And initially precedent would have been communicated orally. As you can imagine, not a lot of reliability across courts as a result. But eventually, with the advent of the written word, we started to get reports that other jurists or law students or judges would write and share. Eventually we get journalists starting to write reports which were published. And then ultimately now we have written case decisions that are an authoritative statement of what the court decided. Makes things a lot easier having those written decisions today. But some of the decisions that I reference are actually authored, they're composed, they're reflections of journalists, not necessarily the actual court. So there's always a little bit of ambiguity as to what actually was decided in these cases. But nonetheless, it's the best that we have to historically understand how the law developed. In terms of the words on this screen so far, radiodescendai refers to sort of the core crux of a legal decision. It is what was actually decided upon. It is usually that which is binding. It establishes the rule that's binding on a future decision. Although depending upon the nature of the court, it might not always be binding. At best it might just be persuasive. Meaning that a court could consider it, but doesn't ultimately have to follow it in the end. And that depends upon the level of court that also depends upon where that court is. So a superior court here in Nova Scotia could, can, ought to consider decisions, let's say, from a superior court in England. They're also common law system. But their radiodescendai, their decisions which might be binding there, would not be binding here in Nova Scotia. They might at best be most persuasive. The other element that I think we'll need to consider is obiter dicta. And that is the reasons that are not central to the decision, but nonetheless might help inform how a decision was reached. Sometimes obiter dictas use sort of disparagingly. People will say, Well, that was just dicta. That wasn't the actual decision. So we don't need to pay attention to it. But there's actually something valuable and looking to dicta because that is where you begin to see the underlying principles that might be informing why a certain rule was established, which helps us reason then as to whether we need to modify that to fit new circumstances. It basically gives us added information which we can use in reasoning. Obiter dicta at times can be binding. This is a otherwise model. But regardless, the important point is that generally it's just persuasive. That's the important part that we need to think about. So I'll be looking to both of these throughout. There are some other areas or terms I need to also define. There's equity. This is actually a distinct body of law. It's often existing alongside the common law, but it is its own area of law. It's concerned with a higher sense of justice or a natural justice. So it originates in this idea that the sovereign would have a counsel. Usually it would just be the Chancellor, the sovereign's Chancellor, and they would hear certain complaints and they decide that sounds like a really strict application of the law. That really has led to some injustice. I'm going to give you this remedy today. So it's a discretionary form of judgment that was provided by a separate court. Eventually, this would develop into its own distinct form of court called courts of equity. Some of those were known as courts of Chancery. They didn't have to behave according to precedent. Their concern was just a higher, potentially natural form of justice. Something that they could obtain through the application of moral reasoning. And it would often go in and not necessarily replace the common law, but it would, and not necessarily correct it, the idea was to try and live out what the common law ought to have done, is how they tried to rationalize it in many cases. Now eventually, equity has been absorbed into the jurisdiction of our common law court. So when we go to a common law court, they're also or at least they have the opportunity to also make use of principles of equity in their decisions. And some types of decision making that we just take for granted as law is actually on the basis of this equity, which allows for a greater reminder of discretion in decision making. Another key element that we'll be talking about today is a ecclesiastical law. And that might seem very odd for me to say that this is church law. It's heavily based in theology. With that said, it's also been translated into a distinct legal tradition of its own. Prior to the English affirmation, the ultimate authority would have been the Pope and the Vatican. And then after the Reformation, the English sovereign is the head of the Church of England. But largely the law basically stayed similar. The reason why this is relevant is that ecclesiastical law actually had a significant role in everyday people's lives in England. The church was tasked with certain responsibilities in the provision of services. So ecclesiastical law pertained to spiritual, meaning religious matters, but they also referred to temporal or secular matters, depending upon what the institutional church was involved within, within a particular community. They set up courts. In fact, the ecclesiastical courts often heard maritime matters as well, like shifts. They would hear mercantile law issues. The reason being is that they shared a unified idea that they were drawing on the Roman law tradition. And so certain lawyers, a very distinct professional lawyers, would go to there. They would be called doctors. And they had the doctor's comments and they'd go to these courts and they'd argue they were often educated in the, in the Cambridge or Oxford or something equivalent. They had a very distinct training, a very distinct professional practice that had a greater connection to a civil law or a Roman law tradition, which was practiced in the continental Europe. Anyway, the point is that this was a distinct form of law that existed alongside the common law. And they interacted many respects. This will be hugely relevant for what I talked about today. The last element that I wish to draw out in this contextual page is the idea of the law of statute. This is a kind of legislation. These are written laws promulgated by the sovereign. Historically, these would have been passed with the advice and assistance of parliament or an equivalent body. But the sovereign could be very much involved in the writing of these laws, if I guess they had the skills to do so. Today, contemporary legislative assemblies are the ones who author legislation, author statutes, which become law upon proclamation by our vice regal representative, the governor general or the lieutenant governor, depending upon whether it's federal or provincial. Contemporary statutes are ostensibly formed democratically. Stensibly is perhaps carrying a lot of weight here. We can't always necessarily say that legislative assemblies are democratic institutions as much as they aspire to be. But that is ostensibly what's added, what's unique about a statute as opposed to common law, which relies upon a court rather than a legislator. And especially with the 19th century, there's a burgeoning of the use of statute as a mode of social control, unlike in prior centuries. And it's continued where we see the government in a greater degree of participation in everyday people's lives. So common law isn't always, if not the dominant mode of regulating social life anymore. Rather, statutes have largely come in and have taken over many places that may have previously been governed by common law. Also relevant as we talk about this complex and not fully defined area. Let us proceed then to the historical cases of legislation. Now this probably looks like a lot of information on the slide for those who have never been to a law class before, but I'm going to walk you through it, so don't worry. This is an example of a case brief and this is a mode of note taking that we encourage our law students to do to dissect a case and understand its core elements. I wouldn't say that this is all that a case brief ought to be. I would encourage my law students to write a lot more, but for the purposes of the lecture, it's easier just to have some core details and then I let the students fill in the rest. I need to have them do some work. I can't do everything. And so what we have here are facts and issue that the court had to decide the decision that the court reached and then when I say routing the sedentary that's looking to those core reasons that support a statement of the rule that might be used in a future case. So this is the Haynes case. This is a pretty typical case to talk about when we're talking about dead bodies. The Haynes case was decided in 1614. It involved bodies being interred in a burial ground and they were wrapped in shrouds, but then William Haynes decided to come by, dig up the bodies, strip them of their shrouds and made off with their shrouds after burying the body's back. He was found not the best bodies, not the best thief and he was tried for larceny, which is a criminal offense related to the theft of private property. So the issue for the court was had Haynes committed larceny by taking the shroud. That was the focus, at least according to the report that we have written not by the court itself, but by somebody else. The judgment was against what Haynes, the accused, with respect to the shroud. He was convicted and whipped as a result. Now, I'm going to start to walk through these points here. The first, in terms of our radio-disabendai, or one of our rules that we can take away from this case, is that with respect to sheets or the shroud, property lies in the individual who placed them there. So whoever put the shrouds on the bodies and put them in the grave, they are the owner of those sheets. They were not abandoned. The reason being is that common law, actually, especially in English law, is very reluctant to recognize the abandonment of property. English law has historically really always wanted to connect things that are property with an owner of some kind. So the court said, no, this was not abandonment. So whoever put them there, they're still the owner. Nor were they gifted to the dead person. This is perhaps the more critical element, perhaps of interest. As the dead had no capacity to be the subject of rights. It's all good. So there could not have been a gift to the dead body. They couldn't have any rights themselves. They have no capacity. They can't exercise any rights. So there was no gift to them. So again, the property remains with whoever put it there. Now, this is the perhaps the most creative and interesting element of this case is this part in bold. No property in the body. Ecclesiastical cognizance alone. And the reason why I bolded it and the reason why I'm setting it up like this is because in this decision, which is only a paragraph long, this is a very short decision. There is no reference to this at all. They don't talk about this, at least as it's reported. The idea that not only is the dead body incapable of being a rights holder, they can't own the shroud. But they themselves can't be owned as property. But the court never decided that. But nonetheless. Eminent jurists at the time, William Blackstone, Edward Koch, Matthew Hale, they all wrote in their treatises on the common law around this time that that was the rule. William Blackstone most explicitly making the connection between Hain's case and this principle, this idea that there could be no property in a body, that it was of ecclesiastical cognizance alone. Now, other case law did apparently rely upon it. The next notable case would be Excelby and Handyside 1749. This. Again, this is not an we don't have a written decision. This is only what's reported in somebody's summary of the law. But it would appear to have relied upon Hain's for that statement that there could be no property in the body. So someone who is suing a surgeon, Handyside, who had dissected a two headed fetus, they had sued under trover, I believe it was, which is a property related tort, which I'll explain in a second. And the court said no, that action can't succeed because there's no property in the court. So the surgeon could take it. It was OK for the surgeon to take it because no one could have any right of property in it. So that's what they were doing with this Hain's case ruling. Was ostensibly allowing for, in this case, a surgeon to take a body and do with it as they wished, because no one else had a superior claim to it because there was no property in it. Again, not actually in the written, at least the report of that decision, but nonetheless has largely been taken and remembered for this authority, no property in the body. All the other elements it's never talked about for that reason. It's talked about basically only about the no property in the body. All right, I want to contextualize this case a bit more. So what does it mean that the body was of ecclesiastical cognizance? By this, I mean that ecclesiastical law in their courts were responsible for temporal and spiritual matters upon death. They had a responsibility of her churchyards or burial grounds adjoining churches. And they were responsible for executing a parishioner's right to a Christian burial. That's what it would be known as in a churchyard. And we have cases to that effect describing that. Kemp and Wicks, Gilberts and Buzzard. These are written in the 19th century. But the idea is that this had been longstanding since at least early medieval period that this had been a right and that this was a matter that ecclesiastical courts administered. But that didn't mean that ecclesiastical law operated alone. Rather, the common law would supplement this. So for example, one way of doing this would be if an ecclesiastical court had issued an order, but they didn't have the means of enforcing that order. A common law court could step in and assist. They might have access to different state powers that they could make use of, the king's state powers rather than the ecclesiastical court. So that's one way that they could assist. The other way the common law assisted was that courts placed responsibility on certain peoples to give effect to Christian burials. Well, it was ecclesiastical administrations that would actually do the burial. If someone had died in a home, it would be the responsible responsibility of a parent, a husband. Later it was recognized that a wife could be responsible, the owner of a private dwelling, a jailer. Different individuals outside a church setting were imposed upon with obligations to give effect to a Christian burial. What that would mean would be basically bring that person to the parish so that they could get their disposal that way. The queen against new comb is actually a Nova Scotian case, which is fun to think about that there is a Nova Scotian case about this involving a jailer who wanted to use the remains for some, I think, for dissection. I think he wanted to send them to an anatomist and the court said no, that a jailer has obligations with a prisoner who dies to actually go and bury them. So that in these ways, certain obligations were being established in the common law because they ecclesiastical courts wouldn't otherwise have jurisdiction over these types of issues. So the common law was assisting ecclesiastical law and giving effect to this notion of Christian burial. And then also the idea of disinterring and using dead bodies that had otherwise been intended for burial. So disinterring and using them without lawful excuse was an indignity that criminal law criminalized and common law courts would convict individuals. King against Cundick involves body snatchers. So these would have been either surgeons themselves or their agents who would go in, dig up bodies and produce them for anatomists so that they could dissect those bodies. And so the court said that that act of disinterring those bodies was a criminal offense. The King against Lin involved a physician who disinterred a body and dissected it. So a very similar type of factual scenario. The last thing I wish to address here in contextualizing Haynes is this idea of exceptions to Christian burial that were allowed in common law and in statutes. These were very specific to punishment. So for example, in common law from the 13th century, we see this in Henry de Bracton's writings on the common law, as well as in subsequent trees and acts in the 14th century. The idea that if you committed a treason, your body would be drawn and quartered. The four parts would be at the King's disposal and would send them to the four corners of the realm to help establish the strength of his control. This subsequently in the 16th century began to incorporate dissection as punishment instead of being drawn and quartered. King Henry VIII signed a charter which allowed for bodies to be sent to the I forget the name of the Royal Society at the moment, but for the barbers and surgeons. And then there were statutes that made this a required element of sentencing. So somebody who had committed a murder, for example, would be sentenced to dissection after they had been executed. What's shared between these is an idea that through this form of corporeal punishment, punishment of the body, even after death, you were denying the body a Christian burial. You were interfering with the unity of the body, which for many individuals suggested that they wouldn't experience the resurrection, which was promised to good Christians. Another example would be the fellow de sa, which would occur in instances of suicide where the coroner or somebody equivalent would be required by law to dispose of a body of someone who committed suicide off of a highway with a stake through their heart. And sometimes the obligation was to apply quick line to the body so that they would disintegrate very quickly. Again, an idea that this was someone who didn't deserve a Christian burial and should not be allowed to obtain one. And so these are areas of law that applied in England and carried up into the colonies of Upper Canada. In fact, legislation in Upper Canada was a little bit slower to be reformed than in England. I don't know if it necessarily was used, but nonetheless, legislation lasted a little bit longer up until Confederation for some of these things. Now I want us to consider some slavery cases where we can begin to see the attribution of property to human bodies. The first case is butts and penny from 1677. The plaintiff brought an action for Trover. Trover is a form of legal action that would allow for somebody to recover the value of property that was wrongfully taken. So the plaintiff brought an action of Trover for either a hundred or ten black slaves, depending upon the report that you're reading. The issue for the court was was the black person property with which Trover could lie? Otherwise, was the black person property for which they could obtain the value of through this court proceeding? The judgment was for the plaintiff here. Trover could lie. This was property in the eyes of the court. There are key, three key ratios around you, that I want us to work through quickly. The idea that now keep in mind they're using other language. I'm using hopefully language that's more workable for us today. Black people being usually bought and sold among merchants as merchandise and also being infidels, there might be a property in them sufficient to maintain Trover. The important idea is that there was enough regular use that treated them as if they were a thing that could be sold and purchased that this rendered them the equivalent if not clearly property. The added element is also this idea of them being infidels. The idea that they were non-Christians, they were something other. And while these court decisions don't outwardly put it this way, you could understand that what they're trying to describe is an idea of them as sub-human or non-human. Not entitled to the same rights that are afforded to those who are Christian. They are by usage just like a good and go until they become Christians and thereby they are enfranchised, which seems to suggest that if only they became Christians as long as they obtained a baptism that they would become persons. However, a subsequent case ten years later suggests that that was not actually an option. Sir Thomas Grantham's case in 1687 said that an individual could not be converted from a slave into a person because of baptism. So even though this court here in Butts and Pennies seemed to suggest there was a way to become a person by becoming more Christian, other courts were very reluctant to extend that same path. Last thing I wish to note here, this is a time when the Court of Kings bench is perhaps at its most absolute in terms of serving the sovereign's will. King Charles II was interfering at this time with the judges that were appointed to the bench and it seems to be suggested that if they were expressing views on slavery that were contrary to the kings that they were removed. King Charles II had a great investment in the transatlantic slave trade. We can see this potentially demonstrated by his desire to exempt the royal African company from taxation on slaves as a result of recognizing them as property. He didn't want to have a negative effect. He wanted to only gain the benefits of treating individuals like this as property. Now let us look at another slavery case that begins to buckle. It begins to reconsider how we're conceptualizing property in humans. This is Smith and Gould, a 1706 case. The plaintiff brought an action again for trover, for chattels, many of them, but also included slaves. A verdict was given for the plaintiff and several damages awarded and the defendant moved to arrest the judgment. It seems to be a form of appeal that's being argued here. The court decided that before I say that, the issue here is whether, again, a black person could be property for purposes of trover. The court decides that no, they decide in favor of the defendant. They say that trover cannot lie in a black person, but there's some interesting gymnastics that's going on in how they reason through this. They make a distinction between property that exists by natural existence and that which exists as a product of human law. An example of property at natural existence would be beasts, vowels, fish, which God gave to man and gave to man to destroy, owing to that natural property relation that exists. But that could not be extended to things in general, which would include actual human beings. If property was to exist in a human person, it had to be the product of human law. So it either had to be the product of statutes of which the colonies had many or it had to be a discreet, recognizable precedent within the common law system. The reason why they're doing this gymnastics is because while they didn't want to recognize slavery in England and many court cases following reinforced this idea that there could not be a slave in England by common law, they didn't want to interfere with the colonies. They still wanted to basically extract as much as they could from the colonies. They didn't want their decision-making to interfere with that political economy. So they found a way to deny the existence of property in humans within England but then also found a creative way of saying that as long as it legalized wherever they are, that's okay. And so we see this reasoning applied subsequently in other court cases as a way of trying to appreciate when can the courts interfere with the business of colonies versus what happens at home in England. The only category that they recognized within the common law as a human construct of property was the villain. And the villain was a form of feudal servant. They would have been captured and then they would have been put into some form of working relationship on that feudal lord's land and in that sense they were property and that's what the court acknowledges but if ever they were interfered with, if someone interfered with the villain it wouldn't be under Trover that a person would try and get a remedy because Trover goes to a quality of the thing but rather they would go for trespass because they were interfering with the means of obtaining an income from that worker. Not necessarily was that person an actual thing, an actual property themselves. So even there we see the court very reluctant to express that someone could be human property. They're trying as much as they possibly can to suggest the common law cannot recognize that. But slavery wasn't the only instance in which property was being extended to human bodies. Harrington Contra Wellrund is a 1682 case where we see this in the idea of a specimen conjoined twins, Achilla and Priscilla were born and baptized. A legal term of art that was used to refer to them was monster. Monster would be used repeatedly well into the 20th century. The plaintiff was the father of these twins and was a tenant of the defendant. The plaintiff entered a written agreement that would appear with the defendant that the defendant would have custody of the children and would be able to benefit financially from showing the children. But an eight part of that benefit should go to the plaintiff as long as Achilla and Priscilla, the conjoined twins, lived. This happened. They were exhibited. Then they died. The defendant then retained the twins and bombed them. And it appears from the record that they continued to show the body, the embalmed body. The plaintiff went to the court of Chancery seeking a remedy. Question was could the court of Chancery a court of equity, could it provide a remedy? And they decided it's a very short decision. It's often very short. Judgement was against the defendant. So it was in favor of the plaintiff. The defendant was ordered to bury the twins to account for the amount of money that he obtained and to pay costs to the plaintiff. The only reasons that are really provided is the Chancellor much disliked these doings. Doesn't really give you a lot to appreciate what this higher principle of justice was that they were relying on. Although we can sort of tell based upon how it's formatted that showing a monstrous birth was perceived to be a misdemeanor, some sort of indignity and that was possibly the justification for interfering in what appears to be a valid contract. All right, so let's contextualize this. So in terms of concepts of property that we see demonstrated in the instance of human slaves or specimens is a separation of a subject who has legal rights and the object that thing that becomes property where the object, the thing has no autonomy. Its existence in the world is completely subordinated to the subject. Whatever the owner wishes, essentially. That's a really defining or one of the defining features of property as opposed to personhood and the types of remedies that are available and the types of rights that are allowed with respect to the person. There's also the idea of the inability of the res, the res being the thing, the object. Sort of this idea maybe it's better put this way there's a contingent relationship between a subject and the thing. In other words I might own my binder which is out here but anyone else could situate themselves in just the same position in relation to binder as me. All we just need to do is effective transfer. I just need to either give it to you or I need to sell it to you but basically anyone could occupy my position relative to the binder until that title transfers. There's no necessary connection. I have no necessary relationship with this binder. There's nothing special about that relationship. I might be a weirdo who has fetish binders but that's not something that the law recognize. That's not what they're looking at. They're looking at this very specific notion of a title and the types of relations that follow and incidental to ownership are these ideas of possession, control, use, disposal potentially destruction that's permitted which the object has no part in saying which is quite noticeably apparent in these slavery cases. Briefly I just want to acknowledge that abolition in terms of legal processes would involve further case law. Some are set in Stuart from 1772 is often looked upon as one of those clear definitive cases that said that in England as soon as a slave stepped foot in England they became free again using this gymnastics though of the natural law embodied in the common law would free them in English soil but courts continued afterwards to enforce contracts that pertain to slaves outside of England. So courts were still very much involved in supporting the act of human property. It would take a while for courts to more definitively be opposed to this. Upper Canada in 1793 had an act that in a partial way provided a path to freedom for I believe it was the kin of slaves the children of slaves and the slavery abolition act of 1833 is often seen as like the pivotal legislation that led to abolishment or abolition but recognize that legal processes are often carried out by individuals in power and so these are often compromises and it would take a very long time and I think we could look to the states as an example of this for the institutions of slavery to disappear and arguably their residual effects continue today. And as a way of illustrating this briefly there's a case of the Hottentot Venus in 1810 it's a King's bench decision in England pertaining to Sarah Bartman who was a woman taken from South Africa the nature of her relationship to the individuals is not quite clear in the court decision but taken to London where she performed in the Piccadilly Circus it would appear that she was only seen in a cage unless she was performing by dancing in an erotic way abolitionists went thought this doesn't look like a free person but the law ought to have recognized this individual as a free person so they went to the court seeking a remedy the court looked into it and they had the Attorney General do some investigation and they came back saying she testified that she signed a contract and that was it she continued to perform largely being restricted to a cage and a few years later was sent to Paris there she was very explicitly known as a slave she died and her remains were brutally dissected by eminent anatomists at the time and her remains remained there in a museum until the I believe it was the early 2000s when she was repatriated to South Africa so even though the law recognized her as a free individual that recognition really didn't amount to much she still persisted in the condition of slavery very much still treated as property in life through her display her exhibition and also in death as a specimen to be prodded, dissected to have her genitals mutilated law is a very violent institution the last historical case I wish to raise is the Queen Against Price it's an 1884 case it doesn't engage in issues of legal property but it's interesting in terms of what it could allow for attributions of property and I'll explain that in a moment so here the accused their child died the death wasn't registered but the corner heard about the news must have been a small place and they notified the accused that they planned to hold an inquest that Monday the accused brought the child to a field set them on fire and so there was a question of whether the accused had committed a criminal offense by doing anything but burying the child there was also a question of whether they were concealing materials around the death to avoid an inquest that's also part of the trial the judgement was actually for the accused now with respect to the jury with respect to the corner the jury decided that the corner had no reason to have a reasonable suspicion so there was no reason to hold an inquest so all those concerns about the inquest and whether he was hiding the death the circumstances of the death from the corner that's sort of dismissed in the case and what I want to focus on are the legalities around cremation what I find very interesting they state that cremation is not on law it's not on lawful at common law unless barred or limited by a statute or if it's done to prevent an inquest or if it causes a nuisance a nuisance would be you do something on your property and it causes some interference with another neighbor or another person's property what I like about this case and what I find very interesting about it is not only that it says that cremation is lawful that we can do that but also because they compare cremation to anatomy here they say that cremation like anatomy is not unlawful at common law anatomy is lawful at common law which is an odd thing not something you typically hear or read a huge part of my research is about uncovering that part but I'm going to undersell that for now I want to point out some features of this the reason why they do this is that they try and draw an analogy to anatomy to say why cremation should also be lawful they say that anatomy acts legislation that was passed the 19th century which I'll explain a little bit more in a moment they said that those were passed and in the circumstances under which they were passed it's apparent that parliament thought that anatomy was already illegal practice the problem though was that they didn't have enough bodies so they needed to find a good legal way of producing bodies they wanted to avoid people digging up graves and the circumstances under which people could otherwise lawfully obtain bodies were so limited so they used anatomy acts to create more legal avenues to supply bodies but the passage of those acts didn't suggest that anatomy was previously illegal there had been a long history within English law of anatomists practicing and apparently with the approval of the state legislation merely expanded supply and so for the court and the reason why this is helpful for the argument about cremation is that they say burial has never been the only method of disposal or use of a dead body the common law has acknowledged and supported other uses whatever those might be like cremation like anatomy now they also held that one's duties if they're placed on an individual to bury a body which might happen in some situations that those could be fulfilled by carrying out a cremation so cremation is also becoming an alternative to burial but what's important in my eyes and seemingly under study is the court's suggestion that the law didn't require burial the law actually could allow for a lot more a lot of other uses and it didn't have to be a Christian burial could be a lot of other things what's interesting is that this was relied upon by law writers who were writing textbooks at the time and so they would cite this case and they would say that it stands for this wider authority to do whatever you wish with a body as long as it's not barred by a statute as long as it's not limited by a statute as long as it's not avoiding some other legal obligation as long as it doesn't cause nuisance so they're citing this case in these textbooks they do that until the mid 1900s and I'll explain why I think in a moment this same idea is being used by disciplinary investigations into physicians who have unsavory collections of specimens and are discovered and are being investigated or physicians in the press they're writing in their journals or in newspapers saying my buddy who was caught dissecting this body they're on the right, they have the right to do this, they're relying upon the same type of argument, not citing this case necessarily, but relying upon the same idea so it seems that for a moment and this is why at first you probably can't read this on the screen but for a moment that's there was sort of a minor doctrine, not one that was dominantly used or relied upon but there seemed to be a moment where courts, legal actors well, a court legal actors were acknowledging the possibility of other uses of the body at common law without statutory authorization which I pretty wild to me obviously an opportunity for exploitation and abuse but also something that might be useful today, hi I don't want to interrupt you really I don't, can you hear me alright? Yes I can one of the things when I read the synopsis of this course or this class was that I thought that at some point we would be talking both cases and the explanation of the law around, for example a career that lacks is a common family how the court law didn't belong to the court once they were extracted from it I've never understood how that could stand in law and I was really hoping that we would approach on this I didn't falsely advertise don't worry we're going to address that in one second so I'll just acknowledge here just to contextualize this case of the queen against price there were anatomy acts that were alluded to in that decision these were used to introduce another supply of human anatomical material generally limited to medical schools they were responding to an excess of body statures taking bodies from graves and providing them to individuals to their scent these acts only limited apply to unclaimed bodies at public institutions like hospitals keep in mind that hospitals were not used by middle class people they were mostly for working class individuals who were destitute and had no place to obtain treatment so generally this was disproportionately affecting those who were poor in society who had limited connections especially if they were in a place where their family was not especially in somewhere like Nova Scotia where a lot of people were had left family behind to come here now there are details about there are differences in the statute here in Canada and in England I'll briefly acknowledge them because I think they start to get at this question that you've raised about Henrietta Lacks so in England while they passed these anatomy acts to unclaimed bodies they also included a provision that allowed individuals to donate their bodies or their necks of kin to donate their bodies Canadian statutes up until the 1960s never included such a provision which would seem to suggest that we could not donate our own bodies until the 1960s by our own will we would have to go and be unclaimed I imagine that that's not actually what was but the statutes didn't provide this power so it seems that we just passively recognized that we had a common law right to donate our bodies for the purposes of medical science and study and it wasn't until we had the routine practice of organ and tissue donation and transplantation that we needed to regularize this in a statutory form so there's a lot of ambiguity going from the period of the 19th century into the 20th century lots of changes that are made common law is unclear and statutes are slow to develop now that it's got contemporary cases so I can get us to our question period and I can address perhaps issues that attracted people to come here today so first before I address those contemporary cases I just want to lay us out some context no property rule is commonly seen as the law still today even though it's a decision from 1614 and was not necessarily actually saying that it is still seen as good law so with that in mind what the law has created and the common law here in Canada is an idea of dignified disposal interment or cremation has to be dignified that's basically the requirement and if things have been given tacit approval by the state those presumably are dignified there's also a presumption of finality that's expected in a disposal in Chaffee and Newfoundland is a case where we actually see the court very explicitly referred back to ecclesiastical law principles as basis even today in understanding that a dignified disposal should be a final disposal on presumption against disinterment and re-interment so even though they're drawing upon ideas rooted in an ecclesiastical law they've now secularized them and just treating them as a general interest in the dignity of a disposal what this means at least in terms of how courts would approach this is that we don't have a right to donate our body that is enforceable I can't direct how I'm going to be buried I mean I can but no one can enforce that at law it's not recognized as an actual right instead it's subject to the discretion of whoever is administering one's estate or the executor of a will usually that's a next of kin but that could be a named person and they bear an obligation to carry out the disposal in a decent and dignified fashion these cases largely arise because family members are disagreeing as to whether someone should be cremated or should be buried and somebody might say well they wanted to be cremated and the court will say well that's not law that doesn't matter what they wanted it's whatever the whomever the administrator is they get to decide and it just has to be dignified so as a side note really important that if you're naming somebody in your will I'm sorry let me restate that I don't want to give legal advice right now it is always helpful I think to generally consider that if you name someone in a will that it should be somebody who understands their values and beliefs and keep that in mind and seek legal counsel to determine what and whom that might be but having regard to this no property rule this could easily thwart your interests depending on exactly how you want to be disposed now keep in mind that legislation also is here and affecting when, where, we dispose so even though people have an obligation to dispose in a decent manner then there's public health there's cemetery legislation that is interfering and further directing where and under what circumstances we can be disposed let me get into the cases that I think you at least are here for due to warden Spence is a contemporary case from 1908 it provides an exception to the state of the law that I just summarized on the slide before this involves a two-headed fetus that was taken and preserved after birth by a physician in 1867 the physician died and the specimen was purchased at an estate stale and it was brought from New Zealand to Australia about 40 years later the respondent who was a police inspector saw the specimen being displayed decided to confiscate it for the purpose of burying it the appellant brought an action for detenu with respect to the fetus detenu being a form of action that allows for someone to demand the return of a property so the idea is that the specimen the fetus is property which the law can recognize and demand the return of it to the ostensible putative owner the question for the court was was the issue property to which detenu applied judgment was for the appellant here detenu did apply and the reason being was that even though there's a no property rule in the body they said if somebody applied work and skill to a human body it transformed it from a mere corpse awaiting burial into something new and different something to which they could claim a property right to so it was in respect of the laborer the doctor the person operating the right was not at least in the court's minds here ever concerned with the mother's interest in the fetus so they developed this exception that would very limit of the apply to the benefit of those professionals who are in the best position to take the tissue the idea again that the physicians work in skill transform something that otherwise just a mere object a mere thing destined to decompose they transformed it into something else something special that could become property now there were some concurring reasons another judge wrote a decision they wrote their opinion afterward they agreed with the person before them which set out the main rule but they also added that the fact that it was two-headed so it was a monster so that also they thought helped make it a better candidate for property it wasn't your typical courts also the fact that it had been prolonged for a long period preserved 40 years probably the mother wasn't around it was a completely different country these were also factors that seemed to transform it into something else now this case is usually just taken for its work in skill exception the mention of monster the mention of these other qualities is not typically used but we can begin to see that the court is trying to make a distinction some property some things can become property based upon notable differences it's not as human they dissent in this decision so there was a judge who disagreed with the other two judges they dissented strongly on the basis of the no-property rule and they also emphasized the connection between property in this fetus and human property in slavery saying that this is something they didn't want at all to support nonetheless, due to warden Spence is good law generally is good law at least remains so in most of the common law and the only recent case that's begun to change that is with Yearworth and North Bristol NHS Trust this has suggested that the work in skill exception has proven unworkable in some situations necessitating alternative frameworks this was a case involving reproductive tissue this involved sperm that was frozen but then the fridge malfunctioned and it damaged the sperm they brought in action the men who had put the sperm in this facility they brought in action against the hospital the health care authority question was whether the sperm was property the court held in favour of the pellets the people whose sperm was frozen and they said that medical science necessitates an alternative framework the no-property rule would have denied any possible way of seeking the remedy the work in skill exception established in due to warden Spence would have helped establish property in the physicians or the people who were preserving not necessarily a property interest in the men although there might be a way of finding a way of reasoning through it but it would be awkward and natural plus the fact that no-property rule the work in skill exception were based on very exceptional circumstances that had very little regard for modern society today so they decided to establish a new approach one that helped avoid situations like Henry Adderlax might avoid situations where a doctor can claim property in tissues taken from your body because they've applied work in skill to preserve it or have done something to it they created this discretionary approach which looked at the fact that this was generated by the appellants they ejaculated the sperm they ejaculated it for the sole object of their future use not for anyone else's and while yes there were professionals involved and there was a regulatory framework guiding how tissue was used that didn't interfere with the fundamental point that they had this ongoing relationship with the sperm there was a consent to its use that correlated directly with its future use and that connection between the consent and its future use was interfered with by the negligence in the preservation of the sperm this wasn't relying upon the category as a property in person that we come to develop in law rather it was applying a new framework a discretionary approach that just leaned on the cork looking to the particular context looking at the circumstances of the detachment of biological matter from a body and the needs the practical needs of the parties in this situation that led them to favor the idea that the men from whom the sperm emerged had a right to them not the others in Canadian cases and reproductive tissue context have applied the same reasoning and I've also echoed in Yearworth this idea that the Deuter Ward exception is outdated limited and is problematic because it's built as an exception to the no property rule they think a new framework to deal with the highly complex situations of tissue use today I'm not going to go over these two slides as I'm already going over into my question period I just wanted to point out some Canadian cases that have applied the Deuter Ward and spent exception but not for its limited work and skill exception actually just saying we need to recognize property here you don't need to have applied work and skill you just recognize property so the 1910 case in Alberta that does that and master dash of the Superior Court of Justice this is a procedural case so a limited there's no binding quality to this case at all but nonetheless we can look to it it just recognizes that this is a type of situation where it makes sense to call it ownership this is a health care context the tissues taken by the hospital the property interests in this case they recognize the property interests in relation to the hospital but it's a very discretionary judgment that seems to be being made in a way that might anticipate the approach in your work so let me go through some observations in the field quickly and then I'll bring this to a natural close so I'm going to read elements bolded elements of this excerpt from an interview I did with one of my participants they're referring to a placenta it's quite difficult to put into words because it's something that is, as I say it's half you is in contact with you and it's half your baby and it's something that is a temporary organ your body has an extra organ not 100% they carry on there's a nice connection that there's not something that is strange to your body placenta is sort of familiar I guess it goes a little bit with that feeling that goes once you kind of like transitioned to motherhood that thing of like used to being yourself and you become another person like the middle, like a boat that is taking you from one side to the river when you define yourself in a way and then you come out in the other side and that transition to motherhood it's almost like when I buried the placenta I always felt like it was going to feel like that closure and I left my previous myself behind it's funny that a piece of meat represents all that this is participant 20 describing their experience with the disposal of placenta when I read excerpts like this there seems to be a great amount of emphasis on the complex relations with respect to the tissue there isn't some clear this is obviously something I own and this is something that's me it's really murky for the participants it's not clear whether it is you or someone else in this case this tissue also doesn't refer to a stable moment it represents transition transformation of oneself the closure of one status and the opening of another it has a deeply intimate relationship with the person it's deeply personal and yet it marks a socially constructed status change from one person to becoming a mother but also this disposal is dependent upon the personal readiness to dispose it and this idea of it being a piece of meat this individual elsewhere in the interview describes stillborn children as legally requiring a different framework of disposal but also potentially it makes sense why stillborn children might be disposed of in a way more approximating a burial for some it might be desired for that reason that it's seen as more human but this tissue was seen as a piece of meat but it obviously was not just a piece of meat it had a whole bunch of other meanings attached to it invested in it it wasn't just something to be discarded like the state they might have been eating for dinner that day that they didn't finish and the creative work for this individual was a photograph of this tree that they put the placenta in the soil it's ongoing relationship with them even though the biological matter the placenta has now decomposed and ostensibly has helped support the growth of this fig tree it still is present there and it has transformed this object into something that they probably will never treat the property they're probably never going to try and sell it probably never going to try and get rid of it they see it as reflecting the ongoing relationship with their child in fact the fact that it's blooming this year was an important thing because it helped indicate to them that their relationship with their child is going in good directions from this and I have interviews with people who have lost amputated limbs people who have lost gonads people who have lost other tissues central to their body and some that seem to be more peripheral I get this idea that people have complex highly individualized experiences of human body and their parts so even though parts or tissues might be taken from the body and separated from the body they don't just become objects they don't just become candidates of property right away they might have very complex meanings attached to them which might bring them to become a little bit more person like or put them in a category of their own that doesn't adequately fit into this idea of property or personhood they often make reference to legal processes but these legal processes aren't determining how they come to experience these tissues they might form a background of things that frustrate the desired relationships that they want to have with their tissues in some cases the law enhances what they want to do with it might actually allow them to do something that would not otherwise be permitted if they were just to rely upon people around them wanted could be ignored sometimes it's actively resisted but the point is that there's a bunch of relations that are forming in between people in the tissue that don't adequately map onto our ideas of property and personhood control and use of the body part can factor significantly in a sense of self or projects related to the self not a stable sense of the self it could be about transforming or changing oneself but also as part of that relations with other people too and also the relative humanness of the tissue face shavings from someone who had feminizing procedures were seen as much less important than having the gonads removed even though they didn't reflect their gender identity they were much more important to them they wanted to have the gonads not the face shavings the degree of proximity with their sense of identity whether it was an identity they still held on to or not was important in their sense of wanting to have a relationship with those tissues person who was hit by a motorcycle lost a leg he desperately wanted that leg as a way of maintaining a sense of wholeness himself through that process of healing may not necessarily need to have an established relationship with that tissue forever but at least in that critical moment wanted it and the bone was more important to them than the flesh because the flesh there was too much first of all it was one of the complaints there was too much flesh to keep so he gave it to friends but he also the flesh wasn't the important part it was the skeleton the bone of the amputation better reflected the type of relationship he needed to obtain that sense of healing so very briefly because I'm reaching the end I want to suggest that this discretionary approach that we see in your worth might be an appropriate way of trying to approach these very complicated relations that we have with tissue because we don't necessarily have to recognize just personhood or property within a discretionary approach we can obviously have regard for the physical and conceptual detachment of the material from an individual but we can also look to those practical concerns and the factual legal context might inform what we do with that or what we want to do with it this is something that courts always or can and do do already they engage in these highly multifactorial deliberations in the exercise of discretion here for Falkner the discretionary approach is about whether to recognize property or not biological material but we engage in these kind of discretionary judgments in situations of equity all the time that is in fact what equity is all about is that discretion according to higher notions of justice that are appropriate to the specific circumstances of that case or even torts like I'm teaching negligence right now it's not a clear body of law with very fixed analytical categories it's a lot of policy judgments the court is engaging in a lot of discretion so these are things that courts already do so why not apply to a situation that's fraught and not clearly mapping onto notions of ownership and personhood but I would add and I think this is a critical enhancement to this idea the guided discretion we can and I think we ought to attend to other complex relations that shouldn't just be about declining or accepting whether property should be extended it's perhaps about trying to find other relations and giving them legal recognition the idea of custodial relations as I said tissue might be deserving of some sort of protection or ongoing relationship but it doesn't quite be it isn't effectively captured in the idea of ownership like Indigenous peoples with respect to land or a broader ecology there's a custodial relationship a sense of responsibility that they engage in in mutual encounter that isn't effectively described by ownership because ownership implies this extractive control and I think courts using a discretionary approach are primed to be able to do work like this this would not establish general rules that would be easily applied in every situation it would have to be very dependent upon the types of relations that exist among people in relation to tissue to the extent that we need to have regular frameworks we can use legislation we can expand legislation and allow it to actually regulate and provide uniform ways of how to approach tissue to avoid situations where doctors take tissue and run off with a bunch of monies from the use and development of those tissues we can develop other means by which we can prevent such things anyway that's effectively what I wanted to say I hope this has been a meaningful lecture so in the interest of time I'm happy to take some questions now and then of course I'm happy to convey answers or receive questions by email as well or maybe I've exhausted all of you which is perfectly okay too well thank you very much for coming I hope you've learned something about bodies of law and if you do have a question that comes to your mind afterwards you can always email me have a good night