The right to stay dead

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In an Arizona courtroom last year, a dead man rose to forgive his killer.

Christopher Pelkey was shot dead in 2021 by Gabriel Horcasitas in a road rage incident. Now, here he was, an avatar, a revenant in pixels, conjured from photographs and videos.

The judge was moved. He said so from the bench. Pelkey’s forgiveness brought no mercy, however, as the sentence was a year more than what prosecutors sought. Pelkey’s killer has appealed.

The reality is, Pelkey forgave no one. He’d been dead for years. His sister composed the absolution and poured it into a machine built from his face and cadence. It was a séance dressed in software. Rhetoric has a name for putting words in a dead man’s mouth: prosopopoeia. Only now does it have a rendering engine. A corpse addressed a sentencing hearing, and no one seemed sure if they had witnessed a digital miracle or a tender fraud.

I spent a career litigating what the dead leave behind. Estates clawed to the last end table, wills broken open like piñatas by heirs who felt cheated. I wrote the book on the law of dead bodies. I never once asked who owns the voice.

Picture this: a husband gone without warning: an aneurysm, a bad merge on the Trans-Canada. Two small children, one too young for memory to have set. At three in the morning, half-crazed between anger and missing him, a wife feeds in wedding and birthday videos and saved voicemails. She builds him. Her nekyia, summoning her dead to speak. She only needs an app. Now her children say goodnight to something that says goodnight back. Tell me you are certain this is wrong. I cannot.

Other post-mortem quarrels

The technology is not the frightening part. The law’s absence is. In most of Canada, no law plainly forbids what she’s done. No one has a settled right to stop her. No court appears to have been asked. Our law was built for other post-mortem quarrels.

Our law guards two things: the commercial value of the famous, and the privacy of the living. When a fake Drake single surfaced, it vanished from every major platform within days of the label’s demand. When a foreign business harvested living faces for a surveillance engine, our courts descended on it. The law is wide awake to artificial intelligence, so long as there is an entity to sue and a breathing victim to protect.

The mother commands no such phalanx. She’s not selling anything, and in the law’s cold reckoning, she protects no one who still exists. Privacy, as our courts enforce it, is a right of action.  It dies with its owner; actio personalis, reads my law school text. British Columbia, Saskatchewan and Newfoundland and Labrador say so in terms. Elsewhere, the statute books are silent. No court I can find has gone further: the right moulders in the ground beside the body.

The one doctrine that arguably reaches past death, the unlovely tort of appropriation of personality, rouses itself only for commerce. Its gesture toward the grave — a trial judge’s musing in Gould Estate v. Stoddart Publishing Co. that the right might descend — was left dangling by the Court of Appeal. No reported decision has adopted it. Even if adopted, it would not reach the widow: the tort punishes turning a face into commerce. She’s grieving; she’s not selling anything. 

Dead silence

Ottawa has written almost nothing; its exceptions prove the pattern. A new criminal ban on the sexual deepfake, in force this July, alongside an old fraud offence for impersonating the dead to cheat the living. Sex and money. Nothing tender. This June, two bills came: one for the chatbots, one rewriting privacy law wholesale. Both discipline corporations and leave the kitchen table serenely alone. The privacy statute exempts whatever a person does for “personal or domestic purposes.” The overhaul re-enacts that exemption in substance. What is re-animating your spouse from the cloud, if not domestic?

What about copyright? A relative who holds it in the letters or recordings may fight over the raw materials, not the resurrection itself. Where the widow is his heir, it supplies no adversary. Legislatures in Prince Edward Island, New Brunswick, Saskatchewan and the Yukon have enacted the only Canadian statutes devoted to the digital assets of the dead. Each has a singular purpose: to usher the accounts and photographs into the executor’s hands. They say nothing of what may be built from them. While the law equips the resurrection, it does not regulate it.

Quebec guards a face and a voice more jealously; its Civil Code once required the heirs’ consent to use a dead man’s image. The legislature quietly deleted the heirs in 2002. Its courts have yet to settle what survives the person. 

Everywhere else, there’s silence.

The privacy torts that require publicity rear only when the dead are paraded before strangers, stirring then for the living forced to look, never for the shade on the screen. The widow, though, parades no one. Her congregation is two minor children and a tablet. 

Suppose you find the prospect obscene and wish never to be summoned back. A will disposes of your property: everything you own, nothing you are. Canadian law has no instrument to lock a likeness after death. Nothing can. At least not yet. The law neither stops your family from raising you, nor honours your wish to stay dead—two silences, with you lying between them.

The cost of comfort

Where is the harm if the widow is comforted and the children get their goodnights? Here, the comfort is not free. The cost falls to the living, as the child can neither consent nor hand it back. Researchers at Cambridge war-gamed this future on paper: a mother, dying, commissions a bot to guide her eight-year-old son through the loss. It consoles the boy. Then it slips. The boy speaks of his mother in the past tense. The bot corrects him. She will always be there, it tells him. They will see each other again, as though her death were a trip she would return from.

A small child cannot easily hold two truths at once. Researchers place the understanding that death is permanent between five and seven years of age. A machine answering back in a parent’s voice works against those years. The bot exists to defer the lesson without end. It does not work alone. Behind the widow stands an industry that makes grief sell. A patent already waits to keep the dead posting after the funeral. Grief is a perfect business model: a product that fails your family precisely when it works commercially.

None of this argues against keeping the dead close. We all carry our dead, in habits, in turns of phrase. That carrying is love with nowhere else to go. Memory is the gentlest form of necromancy. The griefbot is different, however. While keepsakes, voicemails, and handwriting never speak back, this does. A chatbot is a ventriloquist. Give it a year of a child’s devotion, and the doppelgänger will overwrite the original. They’ll grow up remembering the machine, not the man. The harm is insidious.

I can hear the objection assembling. It assembled in me, too. Who cares what the dead would have wanted? Epicurus settled it: where death is, I am not. Our law takes the other side. It honours the will of a man who cannot enforce it, while we carry out the funeral wishes of someone past knowing whether we bothered.

You may dictate, in binding legal form, the fate of your kidneys, corneas and heart. You may not say one enforceable word about your face and your voice. The corporeal you, the law permits you to give away. The other part, the one that could appear in your children’s eyes for decades, belongs to the first to download the software.

This is fixable. It forbids a grieving mother nothing. One honest distinction: guarding the dead’s wishes and guarding the living child are two different labours. No single rule performs both. A register that lets me refuse my resurrection defends my autonomy. It does nothing for my child.

The fix starts with you

Inside a family, the law’s writ runs short. Decide whether you wish to return. Tell the people you love, aloud and in writing. And before you rebuild someone, ask whether this is to help your child say goodbye or to spare yourself from saying it. If it’s the former, the replica is a bridge across grief. If it’s the latter, it’s a detour, maybe even a bypass. The child who is too young to tell the difference is the one who gets lost.

Next, Ottawa. Give us the authority over our likeness that we hold over our organs: a way to register not me, honoured like a clause in a will. Promulgate it for everyone, nationally. If the dead leave no instructions, the next of kin decides, bound by what the person would have wanted, not what survivors ache to hear.

Finally, establish several bright lines neither love nor profit may cross. First, every resurrection announces itself as a machine. The chatbot bill before Parliament asks this much of the largest platforms. Second, no advertisements and no opinions in a dead person’s mouth. Third, no family is made to bury someone twice because a contract or a bankruptcy owns the off switch. 

This doesn’t require a new statute: two federal bills sit open on this ground, ripe for an amendment. 

For nearly all of human history, death has been the edit no one could make. The single full stop that could not be sold, overruled or avoided. We are giving that up, and not to villains. We are surrendering it to heartbroken people improvising with a tool nobody thought to write rules for, while an industry purrs its approval and Parliament studies its shoes. The least we can do is to decide for ourselves whether we come back.