Dead girl has charter rights, lawsuit against RCMP can go ahead: ruling

Dead girl has charter rights, lawsuit against RCMP can go ahead: ruling by James Keller, June 7, 2013, Calgary Herald
A woman who alleges RCMP officers in British Columbia failed to properly investigate a shooting that led to her daughter’s death has been given the green light to sue the police force after a judge rejected the federal government’s argument that Lisa Dudley’s charter rights died when she did. Rosemarie Surakka launched the charter case on behalf of Dudley, her 37-year-old daughter, who died in September 2008. Surakka’s lawyer, Monique Pongracic-Speier, said it’s the first case she’s aware of in which a judge has allowed a charter lawsuit to go ahead once someone is dead. “The law generally does recognize that a right without a remedy is futile,” Pongracic-Speier said in an interview.

Dudley was home with her partner, 33-year-old Guthrie McKay, in a semi-rural area of Mission, east of Vancouver, when both were shot, leaving McKay dead and Dudley paralyzed. A neighbour called 911 to report that he and another resident heard six gunshots followed by what sounded like crashing and yelling, according to Surakka’s lawsuit. The neighbour also told the 911 operator where in the neighbourhood he believed the sound came from. But when RCMP officers responded in two separate cars, they drove around the area for a short time and left, without getting out of their vehicles to investigate the reported shooting or talk to the neighbours who called 911, the lawsuit says. Dudley was found by a neighbour four days later, still alive and conscious, but she died on the way to hospital. Three people were subsequently charged in the shooting, including one who has pleaded guilty.

Surakka filed her lawsuit in the fall of 2011, but Ottawa sought to have the case thrown out. The government argued that because Dudley is dead, she no longer has any charter rights and no one can launch a charter challenge on her behalf. Surakka’s lawyer argued lawsuits must be allowed in cases where a charter violation ends with someone’s death in order to preserve and enforce the right to life. Judge Heather Holmes issued a ruling this week that concluded recent changes in how the charter is interpreted mean the case should be allowed to proceed. “In my view, the plaintiff’s claim is precisely the type of novel but arguable claim that should survive a motion to strike,” wrote Holmes. “(Surakka) articulates a reasoned and coherent basis for a reconsideration of (previous case law), drawing from subsequent developments in Canadian law and international human rights law.”

However, Holmes cautioned the ruling does not deal with the merits of the lawsuit itself, which could still fail at trial. Lyse Cantin, a spokeswoman for the federal Justice Department, said the government would be reviewing the decision and consider whether to appeal. Such an appeal would have to be filed within 30 days of the original judgment. Pongracic-Speier, Surakka’s lawyer, said it’s an important case. “If the right violated is your right not to be deprived of life and there’s no means to vindicate that right, then that seems to be inconsistent with the rule of law and the principles of constitutionalism,” she said.

One of the RCMP officers involved in the case was docked a day’s pay and received a letter of reprimand. The case also prompted the RCMP to change its policy to require officers to speak directly to a caller who dials 911. The BC Coroners Service plans to hold an inquest into the deaths of Dudley and McKay, though the date of the hearing has not been set. Three people were arrested and charged in the killings. Jack Woodruff pleaded guilty to first-degree murder in March of last year. Two others, Bruce Main and Justin MacKinnon, are still awaiting trial on charges of first-degree murder. [Emphasis added]

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