Lawyers for the federal government say the family of a B.C. woman, who died after RCMP failed to investigate the gunshots that killed her, can't sue the government because the victim lost her rights when she died.
Rosemarie Surakka, mother of shooting victim Lisa Dudley, filed the lawsuit in 2011, alleging the B.C. and federal governments — in their responsibility for the RCMP — failed to uphold rights of her daughter under Section 7 of the Charter of Rights and Freedoms, the section that guarantees the right to life, liberty and security of the person.
Dudley, 37, and her boyfriend Guthrie McKay, 33, were gunned down in their home in Mission in 2008.
Although the RCMP was called to the scene by a neighbour who heard the gunshots, the officer never got out of his car or knocked on a single door, reporting later that everything looked normal in the area.
McKay was killed instantly, but Dudley was paralyzed, and survived four days in the house until a neighbour stumbled on the scene. She died before reaching the hospital.
The officer who failed to investigate the gunshots was later found guilty of disgraceful conduct and docked one-day's pay.
A tearful Surakka told CBC News she filed the lawsuit on behalf of her daughter.
"Well, I have to speak for her. I'm her mom, somebody has to," Surakka said.
'Something terribly wrong'
"What happened that night was so wrong and for those four days she suffered there, it counts for a lot to me what she went through, and I can't just dismiss it and I don't think they should dismiss it either. I think there's something terribly wrong there that needs fixing. For them to say they never speak to 911 callers is ridiculous," Surakka said.
Federal lawyers with the Department of Justice want the case thrown out, arguing that Charter rights are personal, and no one — not even a grieving mother — can seek a remedy for the violation of Charter rights of someone else. They argue any rights Dudley had were extinguished when she died.
The question of whether governments should be held responsible for a death in which they might be involved should be allowed to go to trial, according to constitutional lawyer Andrew Lokan. Lokan is an adjunct professor at Osgoode Hall Law School in Toronto and co-author of a text on constitutional litigation.
"You can imagine an extreme case," Lokan says, "If for example, Canada was complicit in the torture of a Canadian, and that person were tortured to near death, they would clearly have a claim worth millions of dollars."
"On the other hand," Lokan adds, "if that person succumbed to their injuries after torture and died, there would be no claim under this theory."
"You get to a point — and I'm not saying we've reached it in this case — but you get to a point where you are tempted to quote Dickens: 'If the law says that, then the law is an ass,'" Lokan said.
Monique Pongracic-Speier, Surakka's lawyer, believes the arguments put forward by the federal government are not only at odds with the intention of the Section 7 rights under the Charter, but also counter to international conventions Canada has signed.
"The fact that Lisa Dudley died — we say — due to police inaction and action is not just a wrong to her," Pongracic-Speier said. "It's a wrong to Canada as a whole."
Justice Department officials did not return CBC News calls on the case.
Surakka said she is appalled by the government's strategy.
"It's so clear, everything that needs to be done, and they don't want to do it. They won't do it. They won't even hear of it."
Surakka's lawyer will argue against the government's attempt to dismiss the lawsuit in a two-day B.C. Supreme Court hearing Vancouver, starting Wednesday.