Use of human reproductive material after death, procedural unfairness in transferring a transgender female inmate to a jail for men, and a note rather than a will

The first topic on the show: Sperm, recovered from a man shortly after his death, pursuant to an interim court order, will not be provided to the man’s wife because the man had not provided his written consent before he died. 

The Assisted Human Reproduction Act requires written consent for the “removal of human reproductive material” from a donor’s body, after death, for the purpose of creating an embryo. 

In this case, the sperm had been collected and stored, pursuant to an emergency, after hours, court order in order to permit the case to be argued. The medical evidence was that the collection needed to occur within 36 hours of death. Not making the interim order would have prevented a meaningful, legal decision. 

The evidence before the judge was that the husband had hoped to have more children, and siblings for the couple’s young daughter, but neither he, nor his wife, had contemplated this occurring prior to the sudden, and unexpected, death of the husband.

The second topic on the show: the transfer of a transgender, female, inmate to a jail for men was done in a procedurally unfair fashion and needs to be reconsidered. 

The inmate did not argue that her transfer to the Surrey Pretrial Centre was unconstitutional, or in violation of the Human Rights Code. Instead, she argued that the decision was unreasonable, and made in a procedurally unfair way. 

The judge, in this case, concluded that the way the decision was made and reconsidered, was procedurally unfair because the inmate was not given the reasons for the initial decision, and when she made a written request that it be reconsidered, nothing of what she said was dealt with in an unsuccessful, reconsideration decision. 

As a result, B.C. Corrections will be required to reconsider the transfer decision, in light of what the inmate had to say. 

Procedural fairness, in these circumstances, doesn’t dictate a particular outcome but does require an inmate to have notice of the decision, an opportunity to be heard, and to be given reasons for a transfer decision. 

Finally, the case of a man who passed away without a will, but having left three, short, handwritten notes, is discussed.

Section 58 of the Wills Estates and Succession Act allows a judge to give testamentary effect to a document that was not properly executed as a will if satisfied that the document represents the testamentary intentions of the deceased.

Here, while only one of the notes was signed, there wasn’t any dispute that the deceased man had written them.

As the deceased man was never married and had no children, if the notes were not applied, his assets would have gone to the estate of his brother, who passed away 5 months after the man who wrote the notes. 

Ultimately, the judge did give effect to the note that left money, in two bank accounts, to the man’s long-time girlfriend. The girlfriend was not well off, having worked as a chambermaid for many years before having to stop work in 2008 as a result of ill health. 

While the man was not wealthy and was a long-term resident of a room at the Canadian Hotel on Seymour Street in Vancouver, it turned out that he had $272,042.35 in his bank accounts at the time of his death.

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