Law as Moral Education 43.0

R. v. Latimer

Supreme Court of Canada
2001 SCC 1
Date of Decisions: January 15, 2001
Date of Publication: January 22, 2001

In This Issue:

1. Key Terms
2. Summary of Facts
3. Significant Issues
4. Decision
5. The Court’s Reasons
6. LexView Commentary 
     

Key Terms:
euthanasia; criminal defences; availability of defence of necessity for murder; "jury nullification"; cruel and unusual punishment; royal prerogative of mercy 
 
Summary of facts:
Robert Latimer's 12-year-old daughter, Tracy, suffered from severe cerebral palsy. She was quadriplegic and capable of communication only by facial expression, laughter and crying. She had the mental capacity of a 4-month-old. Her life was not without pleasures. She enjoyed listening to music, the circus, bonfires, and the company of her parents. She was entirely helpless and dependant on her parents, who cared for her. She had been in continual pain, and further surgery had been scheduled to prevent the painful hip dislocations to which she was prone. The prospect of another surgery, with its projected painful yearlong period of recovery, was deeply distressing to her parents. Tracy's mother characterized the surgery as mutilation, and Mr. Latimer formed the view that Tracy's life was not worth living. Mr. Latimer placed Tracy within the cab of his truck and asphyxiated her with carbon monoxide by attaching a hose to the tailpipe, which piped the exhaust fumes into the cab. Mr. Latimer first maintained that Tracy had died in her sleep, and then confessed to having killed her after being questioned about carbon detected in her blood.

Mr. Latimer was convicted of second-degree murder in 1994, carrying a mandatory sentence of life imprisonment without eligibility for parole for 10 years. The Saskatchewan Court of Appeal upheld his conviction and sentence. Subsequently, new evidence came to light about the Crown having interfered with the jury, and the Supreme Court of Canada ordered a new trial on that basis.

At the second trial, the jury again returned a verdict of guilty of second-degree murder but in contravention of the mandatory sentencing provision, the trial judge applied a "constitutional exemption" to the mandatory minimum sentence. Keeping with the jury recommendation he gave a sentence of one year imprisonment with one year of probation. Mr. Latimer again appealed his conviction to the Saskatchewan Court of Appeal, claiming the defence of necessity. The Crown appealed the sentence, arguing that it had been imposed in error, and that it should be set aside in favour of the mandatory sentence of life imprisonment, without eligibility for parole for 10 years. The Saskatchewan Court of Appeal denied Mr. Latimer's appeal and allowed the Crown's (see Lex View 24.0). Mr. Latimer again appealed his conviction and sentence to the Supreme Court of Canada.

Significant issues
(1) Is the defence of necessity available to someone who kills because he or she judges that another's life is too painful to continue?

(2) In this instance, does a life sentence with a minimum period of 10 years before parole eligibility constitute "cruel and unusual punishment" contrary to s.12 of the Charter of Rights and Freedoms, such that a "constitutional exemption" from the sentence should be granted? 

Decision:
The Court refused the appeal, upholding the mandatory minimum sentence of 10 years imprisonment before eligibility for parole.

The Court’s Reasons:
With respect to the conviction, Mr. Latimer argued that the trial judge had erred in his instruction to the jury by:

(1) Deciding that there was no "air of reality" to the "defence of necessity" and instructing the jury not to consider it; (2) Delaying that instruction until after Mr. Latimer's counsel's closing argument, and (3) Undermining the jury's alleged right to ignore the law ("jury nullification").
As to sentence, Mr. Latimer argued that his sentence is grossly disproportionate to the crime committed, and constitutes cruel and unusual punishment contrary to s.12 of the Charter. The remedy he sought was not to strike down the minimum sentence provision from the Criminal Code, but rather that he personally be granted a "constitutional exemption" from it.

In a unanimous decision, the Supreme Court denied all grounds of appeal. The "defence of necessity" is a pardon for the commission of an unlawful act, and it is only available in a narrow set of circumstances. The Court held that three elements must be present:

(1) there must have been "imminent peril or danger"; (2) the accused must have had "no reasonable legal alternative to the course of action he or she undertook", and (3) "there must be proportionality between the harm inflicted and the harm avoided."
On the facts of this case, the Supreme Court held there was no imminent peril or danger either to the accused or to Tracy. Tracy was in pain, but that was an on-going condition and not an emergency. Also, there were legal alternatives to killing Tracy, one of which was "helping Tracy to live and -- minimizing her pain as much as possible." The Court accepted evidence that better pain management and nutrition was available to Tracy, and that there was also the option of letting her live in a care home where she had stayed once before; "[t]he appellant was aware of this alternative but rejected it."

As to proportionality (the third factor) it is difficult, the Court said, "to imagine a circumstance in which the proportionality requirement could be met for a homicide." Even assuming that necessity could justify homicide -- but not deciding the issue -- the Court said that killing Tracy was grossly disproportionate to the harm that Mr. Latimer sought to avoid:

The harm inflicted in this case was ending a life; that harm was immeasurably more serious than the pain resulting from Tracy's operation which Mr. Latimer sought to avoid. Killing a person -- in order to relieve the suffering produced by a medically manageable physical or mental condition -- is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.

The Court concluded that there was no air of reality to any of the three aspects of the defence of necessity, and that the defence should not have been put to the jury. The Court carried on to say that the trial judge's delay in deciding that the defence was unavailable did not prejudice Mr. Latimer.

"Jury nullification" describes the situation where the evidence clearly points to the guilt of an accused, and the jury knowingly disregards the law and enters an acquittal. Mr. Latimer argued that the trial judge misled the jury into thinking that it would have more input into sentencing than it did, and that had the jury known about the mandatory minimum sentence it would have been more likely to choose not to apply the law and instead acquit Mr. Latimer. But "jury nullification", the Court said, is simply a label to explain that juries sometimes ignore the law. Contrary to Mr. Latimer's argument, the trial judge is required to guard against jury nullification and to take steps to ensure that the jury does apply the law properly. A jury is required to apply the law, and counsel is not permitted to instruct a jury to the contrary. The Court rejected Mr. Latimer's argument that the accused is entitled to a trial which has the greatest likelihood of jury nullification..

Finally, as to sentencing, to determine whether a sentence constitutes "cruel or unusual punishment", the Court must ask whether the sentence is so grossly disproportionate to the crime that it would "outrage standards of decency". The Court noted that where Parliament has set a mandatory sentence, as in this case, the Court should only interfere with it in the clearest of cases. It noted that Mr. Latimer's actions brought about the most serious of all possible consequences -- the death of his victim -- and that his intention to break the law attached the most serious level of moral blameworthiness; "the gravest possible consequences resulted from an act of the most serious and morally blameworthy intentionality."

The Court considered Mr. Latimer's "initial attempts to conceal his actions, his lack of remorse, his position of trust, the significant degree of planning and premeditation, and Tracy's extreme vulnerability." It also took into account his "good character and standing in the community, his tortured anxiety about Tracy's well-being, and his laudable perseverance as a caring and involved parent." It determined that these particular circumstances did not mitigate against the seriousness of the offence.

While the Court found that some of the goals of criminal punishment -- specifically rehabilitation, specific deterrence and protection of society -- are not relevant in this case, one of the objectives of sentencing recognized in the sentencing provisions of the Criminal Code -- the denunciation of unlawful conduct -- clearly is operative. The Court stated that it was aware of "the important role that the mandatory minimum sentence plays in denouncing murder." The Court concluded that the sentence was not out of step with valid goals of the criminal justice system, or sentencing principles. As the Court found that there was no violation of s.12 of the Charter, there were no grounds to grant a constitutional exemption to the mandatory sentence.

Lex View commentary:
There has been little debate over whether the Court reasoned to the correct legal conclusion. The overwhelming consensus has been that it did. Indeed, there is little in the judgment which calls for clarification, much less criticism. Parliament has sought to fulfil its obligation to protect its most vulnerable members -- the relatively weak and dependent -- through the criminal prohibition of intentional killing and the mandatory minimum sentence. The Court has said that the particular measures adopted by Parliament to carry out this obligation are fully consistent with the Constitution.

The Court was right to refuse the invitation to weaken the criminal prohibition against killing by distinguishing those who kill with benevolent motives. The courts cannot, on an ad hoc basis, allow individuals to be stripped of the protection of the law and to be left vulnerable to the actions of apparently well-meaning individuals. Private individuals, even those in the difficult circumstances of Mr. Latimer, cannot be permitted to end the lives of others strictly by the authority of their own consciences.

Jury Nullification:

The criminal law claims for itself moral authority to identify wrongful conduct. This is neither to say that the scope of the criminal law extends to every moral obligation, nor that it ought to. It is entirely possible, from a moral standpoint, to judge that any particular law is based on an incorrect appreciation of what is truly wrong, and furthermore that the law should not be applied either by a private citizen or a juror. The Court averted to this possibility in its discussion of the phenomenon of "jury nullification". The possibility that in some instances defiance of the law may be morally permissible -- and indeed required -- has been the subject of several hundred years of legal philosophy. This sustained study, particularly in the school of natural law theory, has yielded specific, determinate factors that must be taken into account in determining whether one can rightly disobey the law. It is not simply a matter of acting on one's feelings. It is not just an academic question, and indeed has been particularly urgent for jurists in legal regimes such as apartheid South Africa.

In reasoning whether to choose not to obey the law, there are considerations to take into account beyond whether one judges the law to be unjust in the application to oneself. One consideration (of many) is whether the law is in the service of the common good. That is, does it act for the benefit of society as a whole? The prohibition of intentional killing, regardless of motive, and the mandatory minimum sentence clearly is a law intended to protect persons in society. As such, it is a law in the service of the common good, regardless of whether one feels (either as a juror or a private individual) that Parliament has not achieved the perfect balance on the level of punishment provided. "Jury nullification" in the instance of Mr. Latimer, we submit, would not have been morally justified regardless of disagreement which the jury may have had with the minimum mandatory sentence. Such a refusal to apply the law would lessen our society's commitment to protect dependent persons, and treat such persons with lesser dignity than others.

"Jury nullification" can, as the Court says, act as a last defence against tyranny, but in the instant case the law which Mr. Latimer sought to nullify is not a tyrannous one (that is, a law for the benefit of the tyrant and the tyrant's own). It is a law in the service of persons, and particularly those persons for whom the state has a special responsibility to protect.

Defence of Necessity:

With respect to the test which the Court sets out for the defence of necessity, the Court was wise to hold to an objective standard in assessing the question of proportionality (i.e. the relevant question is "is the act committed truly proportionate to the harm sought to be avoided", not "did the accused believe it to be proportionate"). It was also wise not to attempt to set out the law beyond what it was required to do to resolve this particular case. One slightly worrying aspect of the decision, however, is the Court's willingness to speculate as to whether "the proportionality requirement could ever be met in a homicide situation", that is, whether a person can ever be justified in killing in order to avoid some other harm. Here the Court exposes itself to a particularly dangerous application of utilitarianism -- and this in sharp contrast to its repudiation of "crass utilitarianism" in the recent case of Bazley v. Curry (1999) (Lex View 32.0). If one has a right not to be intentionally killed by others (i.e. a right to life), then surely this right cannot be limited by any competing harm. Enshrined in our legal, moral, and religious traditions is the precept that one may never intentionally kill the innocent, regardless of the good that is expected to result, or the harm that is sought to be avoided.

Royal Prerogative of Mercy:

Mr. Latimer's counsel has indicated that after Mr. Latimer has served one year of his sentence, he will ask cabinet to exercise the royal prerogative to grant a pardon. The Court has taken the unusual step of pointing to this possibility in its reasons for judgment, and suggesting some factors (e.g. the two trials, media attention, and stress) which the executive will examine should it choose to review the matter. The exercise of the royal prerogative is not a matter of legal right, but of mercy. The only legal rights attached to it are procedural rights (i.e. that the matter be considered, and perhaps that certain factors (such as the ones mentioned by the Court) be taken into account). The Court is not entitled to express any opinion on whether Mr. Latimer ought to be pardoned, and indeed it should not be interpreted as having done so.

The question of whether the prerogative should be exercised on Mr. Latimer's behalf does not turn on legal argument, but on moral judgment. It has been argued in recent days that Mr. Latimer should be pardoned because he is a good man in tragic circumstances who made a mistake. The difficulty of the family's situation must be readily acknowledged. But whether Mr. Latimer is a good man or not is wholly irrelevant. The criminal law cannot enforce character. Its concern is strictly with acts. In any event, Mr. Latimer did not make a mistake. He was not under any misapprehension of the facts, nor was he under the influence of the heat of a moment. As the Court noted, he had other options, he thought about them, and rejected them. Over several weeks he quietly reasoned to a wrong judgement; one which he knew to be condemned by society, and one which he still maintains to be correct. Mr. Latimer does not agree that what he has done is wrong. He maintains that what he did was the right thing, the moral thing. And, logically, if it was right for him, then it was right for everyone in his situation. Can the Executive excuse Mr. Latimer without agreeing he was justified in killing Tracy?

Many people have expressed great discomfort with the punishment of Mr. Latimer. It is commonly said that those who have not raised a severely disabled child are in no place to judge. Yet those people who are raising children in circumstances similar to the Latimer's have had no trouble condemning Mr. Latimer's actions. It is telling that the many organizations which advocate the needs of the disabled have opposed the relaxation of the law prohibiting euthanasia or assisted suicide for compassionate reasons.

Part of the function of the Criminal Code is to assist in moral education by identifying some acts as wrongful and deserving of social disapprobation. Because the Criminal Code prohibition of homicide does not distinguish between able-bodied and disabled persons, it underscores that the lives of the disabled are equal in dignity to everyone else's. The disabled are pressed on all sides by those who assert that their lives are of lesser worth than others. To grant Robert Latimer a lesser sentence is to agree that the life of Tracey Latimer was of such a nature that it was not of any value to her. To pardon Mr. Latimer while he maintains that his choice was the right one, the moral one, would weaken our collective grasp of the inviolability of life and the equal dignity of the disabled.

It is easier to end the lives of the suffering than to address head-on the more complex problem of how to provide as much quality of life as possible in the circumstances. But to allow people to take the lives of others, and to take their own lives, deflects attention and resources away from where it should be, which is in providing greater community support for the disabled, and better education for physicians in treatment of pain and in palliative care. As was clearly pointed out in evidence before Canada's Senate Commission on Euthanasia and Assisted Suicide, the lack of training which, in general, physicians have in palliative care is a serious problem. Now clearly documented, this calls for wide-spread responses at every level, particularly within provincial health ministries. The failure of provincial health ministries to provide adequate services for the severely disabled -- and this is particularly true of severely disabled adults -- and their families is a symptom of the lack of regard which our society gives to the disabled. A pardon of Robert Latimer would serve to weaken our institutional respect for the disabled -- surely a step in the wrong direction.

Lex View is researched and written by:

Iain T. Benson, B.A. (Hons.), M.A. (Cantab.), LL.B. of the British Columbia Bar
Brad Miller, B.Comm., LL.B, LL.M. (magna cum laude) of the British Columbia Bar.

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Copyright © 2000 Iain Benson and Brad Miller

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