LIFE AFTER DEATH: POST-MORTEM CLAIMS UNDER SECTION 7 OF THE CHARTER.

• Author: Wyngaarden, Jeffrey
• Position: Canada

I INTRODUCTION 138 II DUDLEY AND GRANT PORTENTS OF CHANGE 139 A. Dudley v Canada 139 B. Grant v Winnipeg Regional Health Authority 141 III STANDING UNDER THE CHARTER 142 A. Private Interest Standing 142 B. Public Interest Standing 146 C. Mootness 151 D. Establishing a Section 7 Violation 152 IV REMEDIES IN POST-MORTEM LITIGATION 155 A. Charter Damages 156 B. Charter Declarations 159 C. Remedial Choices 161 V CONCLUSION 162 I INTRODUCTION

It is trite law that there is no hierarchy of Charter rights, but the right to life that is enshrined in section 7 of the Canadian Charter of Rights and Freedoms has a clear conceptual centrality. (1) Life is a precondition to the enjoyment of all other Charter rights. (2) Deceased persons have no conscience, opinion, or belief that is in need of protection; no concern for equal treatment; no liberty or security to be safeguarded; and no cultural, linguistic, mobility, or political interests to advance. Even the wording of Charter guarantees excludes the deceased: Charter rights are guaranteed to every "one," every "individual," every "citizen," or every "person," terms which can only meaningfully apply to the living.

Given the significance of life to the Charter, it is peculiar that Charter violations which terminate life remain relatively unexamined in Canadian law. (3) Peculiar, but perhaps understandable. A person who dies as a result of a Charter-violating action obviously cannot litigate that violation. According to established rules of standing, no one else is legally empowered to advance a Charter claim on the deceased's behalf. Survivors and estates may have legally cognizable claims in tort as a result of a person's death, but claims for Charter remedies arising from personal Charter violations are exactly that: personal. For this reason, fatal violations of section 7 are de facto non-litigable under the Charter. The unfortunate result is that fatal infringements of section 7-perhaps the most deeply consequential Charter violations imaginable-cannot be redressed.

This situation may change, as two recent cases have raised the prospect of post-mortem litigation of section 7 violations. In Dudley v Canada (Attorney General) (4) and Grant v Winnipeg Regional Health Authority et al, (5) relatives of deceased persons have sought redress for alleged fatal violations of the deceased's Charter rights. The issues raised in these cases will have significant implications on future Charter litigation and so merit careful examination.

This paper examines two of the main hurdles facing post-mortem Charter claims: standing and remedies. (6) Standing is a problem for prospective litigants because the established rules seem to preclude post-mortem litigation. Considering these rules, the Dudley and Grant courts' decisions to grant standing were questionable. Remedies were not examined thoroughly in Dudley and Grant but are no less troublesome. While the rules for granting personal remedies under section 24(1) of the Charter are relatively permissive, the rationales for granting such remedies can be difficult to apply in post-mortem cases. The list of remedies that might be appropriate for a fatal violation of section 7 is extremely short and the remedies that appear on that list - declarations and damages-can still be of questionable efficacy and propriety.

Part I of this article outlines the facts and reasoning in Dudley and Grant. In Part II, I examine issues relating to standing. I also briefly consider other barriers to litigating post-mortem section 7 claims, including the doctrine of mootness and whether section 7 is equipped to handle post-mortem claims of the sort presented in Dudley and Grant. Part III explores the topic of remedies.

I conclude that a purposive interpretation of the Charter requires that post-mortem claims be litigable; otherwise, the most egregious violations of the Charter could never be redressed. (7) However, standing should only be granted on narrow public interest grounds. Remedies should be available, but only insofar as they fulfill the functions of vindicating rights in the public eye and deterring future unconstitutional action by underscoring the general importance of Charter compliance.

II DUDLEY AND GRANT: PORTENTS OF CHANGE

A brief examination of Dudley and Grant is necessary in order to situate post-mortem section 7 claims in a factual context. In what follows I assume that the claimants' factual allegations are true, though their veracity and accuracy will naturally require formal forensic proof.

1. DUDLEY V CANADA

   On September 18, 2008, Lisa Dudley and Guthrie McKay were shot in their home in Mission, British Columbia. Mr. McKay was killed. Ms. Dudley was paralyzed.

   Police responded to the shooting after receiving a phone tip. They patrolled the area by vehicle for less than 15 minutes before leaving. Ms. Dudley sat immobilized in a chair for four days before she was found by a neighbour. She died shortly after paramedics arrived. (8)

   Ms. Dudley's mother, Rosemari Surakka, brought a Charter claim against the BC Minister of Public Safety and the Solicitor General, the District of Mission, and the Attorney General of Canada in her capacity as Ms. Dudley's personal representative. Ms. Surakka's suit alleged that the cursory nature of the police investigation caused or contributed to Ms. Dudley's death and, in doing so, violated her section 7 rights. As a remedy, Ms. Surakka sought Charter damages and a declaration that her daughter's section 7 rights were infringed. (9)

   The defendants moved to strike the Charter claim, arguing that it had no reasonable prospect of success. Relying on the handful of cases that examine post-mortem Charter claims (examined below), they argued that Ms. Surakka lacked standing and that Ms. Dudley's rights were non-litigable because Charter rights terminate upon death. In response, Ms. Surakka argued that she ought to be granted public interest standing. The defendants replied that the case did not raise the sorts of systemic issues that typically justify public interest standing. (10)

   Ultimately, the motions judge concluded that Ms. Surakka's claim was "precisely the type of novel but arguable claim" that ought to be approached "generous[ly]" and dismissed the defendants' motion to strike. (11)

   Dudley was a motions decision concerning a very narrow issue, so although it is instinctually correct it is jurisprudentially of little use. The motions judge was not tasked with addressing the standing issue directly or with examining the appropriateness of the proposed remedies. The only conclusion that can be drawn from Dudley is that the question of whether post-mortem section 7 claims should be litigable must still be answered.

   The question is should rather than are because the jurisprudence to date has been clear: post-mortem Charter claims are not litigable. Out of necessity, Dudley bootstraps its way into its conclusion. The standard on the motion-whether the plaintiff has an "arguable" case, or whether it is "plain and obvious" that the claim has no reasonable prospect of success-simply begs the question of whether post-mortem claims should be litigable despite strong authority to the contrary. The plaintiff's claim was only "arguable" if her claim to standing was plausible based on the jurisprudence, which it manifestly was not. (12) While the defendants' list of authorities on the motion was short, it was persuasive for its reliance on leading Canadian jurisprudence. The plaintiff's case, on the other hand, relied heavily on unincorporated international law and vague references to the remedial concepts developed in Vancouver (City) v Ward. (13) A more thorough examination of the issues involved in raising post-mortem section 7 claims would have to wait for the appellate decision in Grant.

2. GRANT V WINNIPEG REGIONAL HEALTH AUTHORITY

   On September 21, 2008, Brian Sinclair died in the emergency room of the Winnipeg Health Sciences Centre. Mr. Sinclair was a conspicuous patient. Of Aboriginal ancestry, he was confined to a wheelchair; had had both legs amputated; was cognitively impaired; had speech difficulties; and suffered from a seizure disorder. He had arrived complaining of pain and urinary problems but was not given any treatment during his 34-hour wait, despite numerous people bringing his deteriorating condition to the attention of hospital staff. He died of a bladder infection caused by a blocked catheter-an ailment that could have been treated easily.14 His sister, Esther Grant, launched a Charter action on behalf of Mr. Sinclair's estate. She sought a declaration that Mr. Sinclair's section 7, 12, and 15 Charter rights were violated, and Charter damages totalling $340,000. (15)

   As in Dudley, the defendants moved to strike, arguing that the plaintiff had no standing and so had no reasonable cause of action. In response, Ms. Grant claimed public interest standing. She argued that since the state was responsible for incapacitating Mr. Sinclair-the only person with a claim to private interest standing-she should be granted standing so the claim could be litigated. The basis for this claim was the assertion that the law should not inure to the state's benefit by allowing the state's own misconduct to bar Charter litigation. (16)

   Initially, the Master found the case law on standing determinative and granted the motion to strike. He noted that labelling an action as "novel" does not immunize it from a motion to strike-a notable contrast to the approach taken in Dudley. (17) The Manitoba Court of the Queen's Bench dismissed Ms. Grant's appeal. By this point, Dudley had been released, and the plaintiff raised it as precedent supporting the appeal. The court acknowledged the case but agreed with the Master that Hislop and Giacomelli, which are examined below, were determinative of the standing issue. (18)

   The Manitoba Court of Appeal reversed the decision and granted the plaintiff public interest...