IN THE SUPREME COURT OF BRITISH COLUMBIA
Dudley v. Canada (Attorney General),
2013 BCSC 1005
Surakka as the personal representative
of Lisa Cheryl Dudley
Minister of Public Safety and Solicitor General of the Province of British Columbia, District of Mission, and Attorney General of Canada
Before: The Honourable Madam Justice H. Holmes
Reasons for Judgment
Counsel for the Plaintiff:
Counsel for the Defendants:
Place and Date of Hearing:
February 27-28, 2013
Place and Date of Judgment:
June 6, 2013
 In an action against the B.C. Minister of Public Safety and Solicitor-General and the Attorney General of Canada, the plaintiff Rosemari Surakka sues as the personal representative of her deceased daughter, Lisa Dudley. She asks for a declaration under s. 24(1) of the Charter of Rights and Freedoms that Ms. Dudley was deprived of her right to life and security of the person, as protected by s. 7 of the Charter, as a result of failures in the responses of RCMP officers and employees to reports of gunshots heard. Her claim also seeks damages as a remedy under s. 24(1) of the Charter.
 The defendants say that the existing law makes clear that Ms. Surakka, as a third party, has no standing to seek a remedy for a breach of her daughter’s Charter rights, and that any Charter claim Ms. Dudley may have had herself ended with her death and is no longer actionable. They therefore ask for an order under Rule 9-5(1) striking the claim and dismissing the action.
 For the reasons that follow, I cannot agree with the defendants that the plaintiff’s claim has no reasonable prospect of success, as meant in relation to Rule 9-5(1), and I therefore do not grant the orders the defendants seek.
 Rule 9-5(1) provides that the court may strike a claim and dismiss the action where it discloses no reasonable claim:
(1) At any stage of a proceeding, the court may order to be struck out or amended the whole or any part of a pleading, petition or other document on the ground that
(a) it discloses no reasonable claim or defence, as the case may be,
(b) it is unnecessary, scandalous, frivolous or vexatious,
(c) it may prejudice, embarrass or delay the fair trial or hearing of the proceeding, or
(d) it is otherwise an abuse of the process of the court,
and the court may pronounce judgment or order the proceeding to be stayed or dismissed and may order the costs of the application to be paid as special costs.
 A claim will be struck if, assuming the facts pleaded to be true, it is plain and obvious that the claim has no reasonable prospect of success.
 I will briefly outline the facts on which the plaintiff’s claim is based before then discussing whether the claim should be struck.
 As noted above, the defendants’ application must be determined on the basis that the facts the plaintiff pleads are true, even though the facts are at this stage unproven.
 On a brief overview of the facts as pleaded, Ms. Dudley and her partner, Guthrie McKay, were shot in their home in a semi-rural residential area in Mission, B.C. around 10:42 p.m. on September 18, 2008. Mr. McKay was killed; Ms. Dudley was shot twice in the neck and was paralyzed, but remained alive.
 A neighbour almost immediately called the RCMP, and reported that he and another neighbour had heard what sounded like six gunshots in a row, followed by a crashing sound and something like yelling after the first of the shots. He described where in the neighbourhood the sound came from.
 RCMP officers in two separate vehicles arrived in the neighbourhood within about 20-25 minutes of the call. They patrolled the streets in the vehicles until they were dispatched to another call. One RCMP vehicle left the area approximately five minutes after arriving, the other after approximately twelve.
 Four days later, on September 22, 2008, a neighbour went to the back door of Ms. Dudley’s house, and saw Mr. McKay lying dead on the floor inside and Ms. Dudley seated in a chair, still alive. Paramedics arrived, found Ms. Dudley conscious and responsive, and maintained her condition until approximately 35 minutes later, when they transferred her to the care of a helicopter evacuation team. Ms. Dudley then became unresponsive, and went into cardiac arrest. She was pronounced dead approximately one hour later.
 The claim alleges that RCMP officers and employees failed in numerous ways to reasonably respond to and investigate the neighbour’s gunshot complaint. As to the RCMP officers who went to the neighbourhood, the claim alleges that they did not leave their vehicles; that they did not speak to the neighbour who placed the call or to anyone else in the area, contrary to established policing standards; and that they did not follow up the next day or ask other officers to do so. The claim alleges that the RCMP employee who received the neighbour’s call failed to note on the electronic dispatch ticket that the neighbour who called after hearing gunshots heard “something like yelling out” after the first shot; that another neighbour was said also to have heard the shots; and that the neighbour described the sound of the shots as having come from “inside” the loop formed by two streets, including the street on which Ms. Dudley’s house was located.
 The claim alleges that these and other failures by RCMP officers and employees caused or contributed to a violation of Ms. Dudley’s right to life and security of the person in a way that did not accord with the principles of fundamental justice because it was arbitrary, reckless, negligent, and without justification in law.
 As noted earlier, the plaintiff seeks both a declaration to the above effect, and damages under s. 24(1).
 I will outline the parties’ respective positions before then discussing whether the defendants are correct in their position that the plaintiff’s claim has no reasonable prospect of success. I should note that the parties each provided well-reasoned and extensive written and oral submissions, and that the following provides only a brief summary.
 The defendants submit that the plaintiff’s action cannot possibly succeed for two main reasons.
 First, they say that Ms. Surraka has no standing to seek a s. 24(1) remedy on Ms. Dudley’s behalf, because only a person whose rights are alleged to have been breached may seek a remedy under s. 24(1) of the Charter.
 The defendants say that the very language of s. 24(1) makes this clear in saying, “[a]nyone whose rights or freedoms ... have been infringed or denied may apply...” for a remedy [emphasis added]. They say that s. 24(1) does not provide for another person to apply on that person’s behalf.
 The defendants say that abundant case authority has taken this approach to the interpretation of s. 24(1), and has held that a third party has no standing to seek a s. 24(1) remedy for a breach of someone else’s Charter rights.
 For example, in Borowski v. Canada (Attorney General),  1 S.C.R. 342, the Supreme Court of Canada held that Mr. Borowski had no standing under s. 24(1) to allege a breach of Charter rights of a foetus. In R. v. Edwards,  1 S.C.R. 128, the Court refused a s. 24(2) remedy to an accused for an alleged breach of privacy rights of another person, and in so doing referred to the language of s. 24(1). In R. v. Ferguson, 2008 SCC 6,  1 S.C.R. 96, the Court refused a constitutional exemption from mandatory minimum sentencing laws. In the process, the Court observed, at para. 61, that s. 24(1) “provides a personal remedy” which can be invoked “only by a party alleging violation of that party’s own constitutional rights”. In Collins v. Abrams, 2004 BCCA 96 at para. 17, the B.C. Court of Appeal held that a wife inheriting intellectual property from her husband had no right to commence or continue “a constitutional challenge based on the violation of Charter rights belonging to someone other than herself”.
 Second, the defendants submit that the plaintiff’s claim cannot succeed because the rights on which it is based abated when Ms. Dudley died, and are therefore no longer available for a personal representative to pursue on her behalf. A cause of action based on an alleged Charter violation terminates with the death of the person whose rights are in issue.
 The defendants submit that numerous case authorities make this clear. For example, in Canada (Attorney General) v. Hislop, 2007 SCC 10,  1 S.C.R. 429, the Supreme Court of Canada denied standing to estates of surviving same sex spouses in relation to s. 15 Charter claims on behalf of the deceased spouses, doing so on the basis that estates are not individuals whose dignity may be infringed. The Ontario Court of Appeal applied this reasoning in Giacomelli Estate v. Canada (Attorney General), 2008 ONCA 346, leave dismissed  S.C.C.A. No. 278, upholding the trial court’s refusal to continue Mr. Giacomelli’s action based on alleged Charter breaches in the government’s failure to compensate him and other Italian-Canadians for their imprisonment during World War II. Although the action was commenced during Mr. Giacomelli’s lifetime, his Charter claims did not survive his death. See also Canada (Attorney General) v. Vincent Estate, 2005 FCA 272.
 The defendants acknowledge that most of these authorities mentioned above applied the principle in somewhat different contexts from the present, such as where an estate purported to sue to enforce Charter rights of a deceased individual.
 However, the defendants submit that the context was exactly the same as the present one in Wilson Estate v. Canada (Attorney General) (1996), 25 B.C.L.R. (3d) 181 (S.C.), where Shabbits J. applied the principle determinatively against the plaintiff’s claim.
 Ms. Wilson had died while detained in police cells, and her sister, the administrator of her estate, brought an action based on s. 24(1) of the Charter alleging breaches of various of her deceased sister’s rights, including those protected by s. 7. Mr. Justice Shabbits struck the action as disclosing no reasonable claim on the basis that s. 24(1) confines the granting of a remedy to an applicant whose own rights or freedoms were violated. His reasons concluded as follows, at paras. 23-26:
Section 24(1) provides that: "Anyone whose rights or freedoms . . . have been infringed or denied may apply . . .". The plaintiff in this action is not Adeline Wilson, whose rights or freedoms were allegedly infringed or denied. The applicant for relief is Dora Reta Wilson, as administrator of the estate of Adeline Wilson. Damages would be of benefit only to those entitled to benefit from the estate of Adeline Wilson. In this action, it is the plaintiff, Dora Reta Wilson, who would personally benefit.
I am of the view that an application for a s. 24 remedy cannot be made by the administrator of the estate of a deceased who applies for a remedy in respect of the alleged infringement or denial of the rights or freedoms of the deceased. The status of third parties is considered in R. v. Paolitto (1994), 91 C.C.C. (3d) 75 (Ont. C.A.), and Borowski v. Canada (Attorney General) (1989), 57 D.L.R. (4th) 231 (S.C.C.).
There are controls on the conduct of agents of the state other than Charter remedies. They include criminal sanctions, discipline of employees, enforcement of codes of conduct and relief of a prerogative nature. I was not directed to any Canadian authority which suggested that a remedy under s. 24 of the Charter was an appropriate way of controlling police conduct, in circumstances where such a remedy was not ancillary to providing a remedy to an applicant. On the contrary, the wording of s. 24(1) of the Canadian Charter confines the granting of a remedy to one for the benefit of the applicant whose rights or freedoms were infringed or denied.
Adeline Wilson is deceased. There is no s. 24 remedy which could be of benefit to her. It was her personal rights and freedoms which were allegedly violated. There is no legal basis for the administrator of her estate to seek a remedy for the benefit of her estate.
 The B.C. Court of Appeal in Stinson Estate v. British Columbia, 1999 BCCA 761, referred with approval to Wilson Estate. Trial courts in other provinces have followed Wilson: see Richardson v. Coleman, 2006 SKQB 379 at para. 2; Grant v. Winnipeg Regional Health Authority, 2012 MBQB 88 at paras. 17-30 (Master). In Grant, Master Berthaudin of the Manitoba Court of Queen’s Bench considered an argument akin to that made by the plaintiff in the present case (discussed below) regarding the impact of Vancouver (City) v. Ward, 2010 SCC 27,  2 S.C.R. 28, which emphasized the public purposes of vindication and deterrence in awarding Charter damages, and declined to deviate from the reasoning in Wilson Estate, Giacomelli, and Hislop.
 The defendants submit that in light of Wilson Estate and the numerous authorities underlying and adopting it, the plaintiff’s claim cannot possibly succeed and should be struck.
 The plaintiff submits that a proper interpretation of s. 7 and s. 24(1) demands that a breach of s. 7 that caused the death of the rights-bearer be actionable by a personal representative. Otherwise, a violation of the most fundamental right protected by s. 7 has no remedy where the violation is fatal.
 The plaintiff acknowledges that Wilson Estate stands squarely in the way of this submission and her claim. However, she submits that the case authorities which have applied the reasoning in Wilson Estate involved distinguishable facts or limited holdings specific to the particular legal contexts. In none of those authorities was the claim brought with a view to remedying Charter violations that caused or contributed to the death of the rights-holder.
 More fundamentally, concerning the reasoning in Wilson Estate itself and any authorities endorsing or applying it, the plaintiff submits that those authorities have been overtaken by developments in the interpretation of s. 24(1) and the approach to causes of action based on it. In particular, she submits that more recent Charter jurisprudence draws from international human rights law to highlight the essentially public features of remedies under s. 24(1), in order not only to compensate a victim of Charter breaches but also to vindicate the breach, in the sense of affirming constitutional values, and to deter future breaches by the state. In this sense, damages awarded under s. 24(1) serve different purposes from damages awarded as remedies in private law causes of action, such as tort.
 In this regard, the plaintiff submits that Ward represents an important post-Wilson Estate development in the law concerning actions based on s. 24(1), in highlighting the distinctly public law features of the s. 24(1) cause of action and remedy. She submits that Ward incorporated an analysis from foreign and international human rights jurisprudence, and described the distinct function of s. 24(1) damages as a societal, and not merely an individual, remedy (paras. 25-26, 30):
I therefore turn to the purposes that an order for damages under s. 24(1) may serve. For damages to be awarded, they must further the general objects of the Charter. This reflects itself in three interrelated functions that damages may serve. The function of compensation, usually the most prominent function, recognizes that breach of an individual's Charter rights may cause personal loss which should be remedied. The function of vindication recognizes that Charter rights must be maintained, and cannot be allowed to be whittled away by attrition. Finally, the function of deterrence recognizes that damages may serve to deter future breaches by state actors.
These functions of s. 24(1) damages are supported by foreign constitutional jurisprudence and, by analogy, foreign jurisprudence arising in the statutory human rights context.
In most cases, all three objects will be present. Harm to the claimant will evoke the need for compensation. Vindication and deterrence will support the compensatory function and bolster the appropriateness of an award of damages. However, the fact that the claimant has not suffered personal loss does not preclude damages where the objectives of vindication or deterrence clearly call for an award. Indeed, the view that constitutional damages are available only for pecuniary or physical loss has been widely rejected in other constitutional democracies… [case names omitted].
 The plaintiff submits that the cases on which the defendants rely, many of which pre-date Ward, did not consider the framework Ward developed for the application of s. 24(1), or the emphasis it places on meaningful vindication of Charter breaches and the deterrent value of Charter litigation. For example, in both Hislop and Stinson Estate the disputes arose in the contexts of statutory regimes which provided for the meaningful adjudication of the claimants’ rights and for a means to ensure compliance with the Charter in the future.
 The plaintiff submits also that the Supreme Court of Canada has stressed on numerous occasions the importance of interpreting the Charter as a whole and s. 24(1) in particular in a way that maintains the Charter’s underlying values and internal coherence: see, for example, Health Services and Support -- Facilities Subsector Bargaining Assn. v. British Columbia, 2007 SCC 27,  2 S.C.R. 391 at para. 80; R. v. Taillefer, 2003 SCC 70,  3 S.C.R. 307 at para. 127; R. v. 974649 Ontario Inc., 2001 SCC 81,  3 S.C.R. 575 at para. 14.
 The evolution in the law’s general approach to s. 24(1) changes the context of the specific conclusions in Wilson Estate, the plaintiff says, such that the principles of stare decisis and judicial comity allow for a revisiting of that earlier decision: see Chief Mountain v. British Columbia (Attorney General), 2011 BCSC 1394 at paras. 90-91.
 The plaintiff submits that with the reconsideration of Wilson Estate that she proposes, the approach under Canadian law to mortally fatal violations of the right to life could be brought into accord with the approaches taken internationally by human rights systems. Many of those systems give standing to a close relative of the deceased person whose right to life is alleged to have been violated. The plaintiff acknowledges that, as the defendant notes, Canada is not a signatory to some of those international instruments, but submits that the instruments may nonetheless properly inform the interpretation of human rights in the Canadian Charter context.
 The plaintiff submits that, for these main reasons, which are developed further in her submissions, the law will now support an interpretation of s. 24(1) by which fatal violations of s. 7 rights may be remedied.
 The plaintiff asks in the alternative for public interest standing to seek a declaration on a common law basis that Ms. Dudley’s s. 7 rights were violated, and that the violation was not justified pursuant to s. 1 of the Charter. The defendants object on the basis that the alleged Charter breach, and the facts said to support it, raise inherently individual issues, and not systemic issues relating to the broader public interest, sufficient to justify public interest standing. The dispute on this point is unnecessary to resolve in this application because of my conclusion regarding the plaintiff’s primary position.
 As I have already noted, a claim will only be struck under Rule 9-5(1) if, assuming the facts pleaded to be true, it is plain and obvious that the claim has no reasonable prospect of success. As the Supreme Court of Canada explained in R. v. Imperial Tobacco Canada Ltd., 2011 SCC 42,  3 S.C.R. 45 at paras. 19-20, the power to strike thus serves as a valuable housekeeping measure that unclutters the proceedings by weeding out the hopeless claims:
The power to strike out claims that have no reasonable prospect of success is a valuable housekeeping measure essential to effective and fair litigation. It unclutters the proceedings, weeding out the hopeless claims and ensuring that those that have some chance of success go on to trial.
This promotes two goods – efficiency in the conduct of the litigation and correct results. Striking out claims that have no reasonable prospect of success promotes litigation efficiency, reducing time and cost. The litigants can focus on serious claims, without devoting days and sometimes weeks of evidence and argument to claims that are in any event hopeless. The same applies to judges and juries, whose attention is focused where it should be – on claims that have a reasonable chance of success. The efficiency gained by weeding out unmeritorious claims in turn contributes to better justice. The more the evidence and arguments are trained on the real issues, the more likely it is that the trial process will successfully come to grips with the parties' respective positions on those issues and the merits of the case.
 The Court cautioned, at para. 21, that the power to strike must nonetheless be used with care, because it has the potential to stifle developments in the law:
Valuable as it is, the motion to strike is a tool that must be used with care. The law is not static and unchanging. Actions that yesterday were deemed hopeless may tomorrow succeed. Before Donoghue v. Stevenson,  A.C. 562 (H.L.) introduced a general duty of care to one's neighbour premised on foreseeability, few would have predicted that, absent a contractual relationship, a bottling company could be held liable for physical injury and emotional trauma resulting from a snail in a bottle of ginger beer. Before Hedley Byrne & Co. v. Heller & Partners, Ltd.,  2 All E.R. 575 (H.L.), a tort action for negligent misstatement would have been regarded as incapable of success. The history of our law reveals that often new developments in the law first surface on motions to strike or similar preliminary motions, like the one at issue in Donoghue v. Stevenson. Therefore, on a motion to strike, it is not determinative that the law has not yet recognized the particular claim. The court must rather ask whether, assuming the facts pleaded are true, there is a reasonable prospect that the claim will succeed. The approach must be generous and err on the side of permitting a novel but arguable claim to proceed to trial.
 In my view, the plaintiff’s claim is precisely the type of novel but arguable claim that should survive a motion to strike on a generous approach.
 As the plaintiff herself recognizes, her claim cannot succeed in the face of Wilson Estate and Stinson Estate. However, she articulates a reasoned and coherent basis for a reconsideration of those authorities, drawing from subsequent developments in Canadian law and international human rights law.
 It is therefore not plain and obvious that her claim has no reasonable prospect of success.
 I reach this conclusion only in the context of the present application that the plaintiff’s claim be struck. At a later stage and with a more developed factual context another judge may conclude that the claim cannot succeed, whether for reasons of fact or of law.
 The defendants’ application is dismissed.
“H. Holmes J.”