Executive Summary: Key Legal and Evidentiary Issues

• Considered whether estates can pursue Charter damages under section 24(1) for violations of section 11(h) rights.

• Addressed the role of provincial survival legislation in determining standing for federal constitutional claims.

• Clarified that Charter rights and remedies are inherently personal and generally die with the rights holder.

• Reaffirmed the authority of the Supreme Court’s decision in Hislop regarding estate standing in constitutional litigation.

• Distinguished the applicability of section 24(1) remedies from section 52(1) declarations.

• Emphasized the need for consistency in the national application of Charter rights irrespective of provincial laws.

Facts and outcome of the case

Background and legal context

Kristen Marie Whaling, formerly Christopher John Whaling, was a federal inmate affected by the retrospective application of the Abolition of Early Parole Act, which eliminated the accelerated parole review system. This system previously allowed non-violent offenders early eligibility for day parole. The retrospective removal of this entitlement was found in earlier litigation to violate section 11(h) of the Canadian Charter of Rights and Freedoms, which protects against double jeopardy. Following this, Whaling initiated a class action on behalf of similarly affected inmates, seeking damages under section 24(1) of the Charter.

During certification of the class action, two legal issues were identified to be decided as preliminary matters: whether the estate of a deceased class member could claim Charter damages for a breach of section 11(h), and if so, whether provincial estates legislation—which may contain requirements such as being “alive as of” a certain date—would affect or limit that right to recovery.

Federal Court decision and appeal

The Federal Court answered both questions affirmatively, suggesting that estate standing could be supported by provincial survival laws and interpreting prior precedent to allow some flexibility in Charter enforcement beyond death. However, the federal government appealed this ruling to the Federal Court of Appeal, arguing that section 24(1) is a personal remedy that cannot be accessed by an estate and that no provincial law can alter this federal constitutional limitation.

The appellate court carefully analyzed the wording of section 24(1), which provides that “anyone whose rights or freedoms… have been infringed or denied may apply…” The Court concluded that the term “anyone” must be understood as referring to living individuals whose personal rights were violated. Drawing on the Supreme Court’s decision in Canada (Attorney General) v. Hislop, which restricted Charter standing for estates to two narrow exceptions, the Court held that estates generally do not have standing to bring section 24(1) claims. It also found that provincial survival statutes cannot expand or override the Charter’s inherent limits.

Because the Court concluded that estates do not have standing under section 24(1), it found it unnecessary to address the second preliminary question regarding the role of provincial statutes.

Legal questions

The central legal question was whether the estate of a deceased class member has standing to claim damages under section 24(1) of the Charter for a breach of section 11(h), and whether provincial survival laws could permit such claims. The Federal Court of Appeal held that section 24(1) only applies to living individuals whose own Charter rights were violated, and that the Charter’s limits on remedies cannot be expanded by provincial law. Therefore, the first legal question was answered in the negative, and the second was left unanswered.

Outcome

The appeal was decided in favor of His Majesty the King. The Federal Court of Appeal allowed the appeal and overturned the Federal Court’s decision, holding that estates do not have standing to claim Charter damages under section 24(1) for breaches of section 11(h). The Court did not award any costs or damages.