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.
Rosemary 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 justice department lawyers 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.
Whether governments should be held responsible for a death in which they might be involved, should be allowed to go 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.
Also on HuffPost:
RCMP Commissioner Bob Paulson has the job of cleaning up the Mounties' internal disciplinary process. Mounties have repeatedly written the commissioner saying they <a href="http://www.huffingtonpost.ca/2012/08/16/rcmp-resergeance-alliance_n_1788863.html" target="_hplink">disapprove of the job he's doing</a>, drawing <a href="http://www.huffingtonpost.ca/2012/08/10/rcmp-emails-reveal-tension-bob-paulson-tim-chad_n_1763453.html" target="_hplink">sharp rebukes</a> from the tough-talking commissioner.
RCMP Cpl. Catherine Galliford was once the public face of the Missing Women's Task Force. She <a href="http://www.cbc.ca/news/canada/british-columbia/story/2012/05/09/bc-galliford-civil-claim.html" target="_hplink">filed a lawsuit against the RCMP</a>, alleging she was harassed, bullied and abused.
Former RCMP Commissioner Giuliano Zaccardelli <a href="http://www.cbc.ca/news/canada/story/2006/12/06/zaccardelli.html" target="_hplink">resigned after admitting he gave incorrect testimony</a> to an inquiry looking into the Maher Arar affair.
RCMP Sgt. Maj. Hugh Stewart took on the nickname "Sergeant Pepper" for <a href="http://www.cbc.ca/news/canada/story/1999/10/25/apec2991025.html" target="_hplink">pepper-spraying protesters</a> at the 1997 APEC Summit at UBC. He became particularly famous after pepper-spraying a CBC cameraman.
In 2008 the RCMP were accused of <a href="http://www.thestar.com/news/canada/article/518193--rcmp-to-review-funding-research-against-insite" target="_hplink">misusing public funds</a> to pay for studies aimed at undermining the legitimacy of InSite, a safe injection facility in Vancouver's Downtown Eastside.
Benjamin 'Monty' Robinson
<a href="http://www.huffingtonpost.ca/2012/07/20/benjamin-monty-robinson-rcmp_n_1690216.html" target="_hplink">Benjamin "Monty" Robinson</a> resigned from the RCMP after a string of incidents including a conviction for obstruction of justice after he hit and killed a motorcyclist then went home and drank vodka to "calm his nerves." He still faces a <a href="http://www.huffingtonpost.ca/2011/12/26/dziekanski-perjury-trial-taser-death_n_1169854.html" target="_hplink">perjury trial</a> for his role in the 2007 Taser incident that resulted in the death of Robert Dziekanski.
Robert Dziekanski died after being Tasered by a group of RCMP officers at Vancouver International Airport. A <a href="http://www.braidwoodinquiry.ca/report/" target="_hplink">public inquiry</a> later determined that Mounties were not justified in using Tasers to subdue the Polish immigrant, who appeared erratic and nervous after 10 hours of waiting to be picked up from the airport. A <a href="http://www.huffingtonpost.ca/2011/12/26/dziekanski-perjury-trial-taser-death_n_1169854.html" target="_hplink">perjury trial</a> concerning the officers involved is still pending.
The first civilian commissioner of the RCMP from 2007 to 2011, Elliott's management style was criticized by senior officers who suggested he needed to anger management training. He <a href="http://www.cbc.ca/news/canada/british-columbia/story/2011/02/04/elliott-rcmp.html" target="_hplink">resigned in February 2011</a>.
Highway Of Tears
Meghan Rhoad (pictured here) of Human Rights Watch was lead researcher for a report that <a href="http://www.huffingtonpost.ca/2013/02/13/highway-of-tears-human-rights-watch-rcmp-rape_n_2675398.html?utm_hp_ref=canada" target="_hplink">levelled blistering allegations against the RCMP</a> for its alleged treatment of indigenous women. The report alleged that RCMP officers raped and abused aboriginals in British Columbia.
The <a href="http://www.huffingtonpost.ca/2013/02/14/rcmp-watchdog-report-bullying_n_2687077.html?utm_hp_ref=canada" target="_hplink">RCMP has a bullying problem</a> that needs to be addressed by better training and record-keeping, said a report released by the force's watchdog group. The report released 718 harassment complaints filed between 2005 and 2011 and about <a href="http://www.huffingtonpost.ca/2013/02/14/rcmp-watchdog-report-bullying_n_2687077.html?utm_hp_ref=canada" target="_hplink">90 per cent of the complaints involved bullying</a>, CBC reported.
<a href="http://www.huffingtonpost.ca/2013/02/14/rcmp-ottawa-child-abuse_n_2688293.html" target="_hplink">An unidentified Ottawa RCMP officer</a> is facing multiple charges after a child abuse investigation. The 41-year-old man is charged with three counts of aggravated assault, three counts of assault with weapon, one count of aggravated sexual assault, one count of failing to provide the necessities of life and one count of forcible confinement.