CALGARY — The body of a Mountie that has been resting in his northern Alberta hometown since he was slain near Mayerthorpe more than three years ago, can be moved to the RCMP's national cemetery in Regina, the province's Court of Appeal has ruled.
In a six-page decision released this morning, Alberta's highest court grants the wishes of Constable Leo Johnston's widow, Kelly Johnston, and denies the application of his parents, who were hoping to keep their son's grave in Lac La Biche, where they live and where he was raised, by questioning the policy of Alberta's director of vital statistics.
“The policy sets out a priority list of those entitled to control human remains: spouse, then child, then parent etc.,” the unanimous three-member court wrote.
“In this case, the applicant Kelly Johnston was first in priority, under both the common law and the policy rankings, with respect to control of the deceased's body. No other person enjoyed an equivalent rank to her,” the court concluded.
Candles burn following a memorial service in Mayerthorpe, Alta., on the one-year anniversary of the deaths of RCMP Constables Anthony Gordon, Leo Johnston, Brock Myrol and Peter Schiemann. (The Canadian Press)
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“Finally, we do not consider that an objection filed by someone lower in rank than theapplicant, in terms of entitlement, affects an already granted and otherwise valid permit,” the court ruled.
Earlier this month, the appeal court heard an application by Constable Johnston's parents, Grace and Ron Johnston, to overturn last October's Court of Queen's Bench decision, which concluded that the officer's remains could be exhumed and moved to Saskatchewan.
Constable Johnston was shot to death on March 3, 2005 along with three other officers by James Roszko, who killed himself in the melee. Constable Johnston, Anthony Gordon, Brock Myrol and Peter Schiemann were investigating a grow-op and stolen auto parts operation at Mr. Roszko's farm northwest of Edmonton.
The ugly public spat over Constable Johnston's remains erupted last summer after his widow applied to Alberta's director of vital statistics for a permit to exhume her husband's body from the Lac La Biche cemetery.
He died without a will and his widow was named administrator of his estate.
At the time, Ms. Johnston said her application was done out of “love and honour and respect” suggesting that her husband of just four months would have wanted his final resting place to be where he earned his badge and where they fell in love.
“The director [of vital statistics] made a simple and straightforward decision to allow exactly what was applied for, namely permission to the wife of the deceased to relocate the remains of Leo Johnston to a different cemetery,” Mr. Justice Dennis Thomas Judge Thomas of the Court of Queen's Bench wrote last fall, “This decision by the director was not unreasonable.”
Kelly Johnston had told the Court of Queen's Bench that while she did initially agree to a burial in Alberta, she changed her mind when she learned two months later about the national cemetery at RCMP Depot in Regina.
Court documents noted that Kelly Johnston only waited until last year to apply for the move out of concern for her in-laws as well as illness and the death of her own father.
Constable Johnston's parents said they only learned of their daughter-in-law's plans as the disinterment was about to occur.
They sent Alberta's director vital statistics a letter outlining their objections and filed an application with the court to prevent the move from going ahead.
In documents filed with the court, Grace Johnston, said her son told his twin bother Lee, also an RCMP officer, that he wanted to be buried in Lac La Biche.
At one point, the municipality was even pulled into the dispute since it owns the cemetery where Constable Johnston is buried and ordered the disinterment suspended until officials could review documents and a court could provide a ruling.
“Kelly is pleased the court has settled this dispute once and for all,” her lawyer, Chelsey Bailey, said Friday. After the court order is formalized, she plans to proceed with the disinterment, but is not planning to speak with the media in the meantime.
“Her only thought going forward is Leo had died upholding the law and that she hopes that the protesters that she encountered previously will honour Leo by respecting the court's decision,” Ms. Bailey said.
Supporters of Constable Johnston's parents in the matter have stood their ground at the Lac La Biche cemetery in attempt to prevent the exhumation.
But the legal dispute may not end with the appeal court ruling and Constable Johnston's body may not be moved any time soon.
“We're reviewing it [the decision] and more than likely there we'll attempt to file an appeal and take steps to get a stay and go to the Supreme Court of Canada,” said lawyer Sid Tarrabain, who is acting for Constable Johnston's parents.
Grace and Ron could not immediately be reached for comment, but Mr. Tarrabain said the process has not been easy on them and the latest legal blow is devastating.
“They are quite upset about it as you can understand,” he said.
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