10
20
30
40
50
60
70
80
90
100
100
120
130
140
150
160
170
180
190
200
210
220
230
240
250
260
270
280
290
300
310
320
330
340
350
360
370
380
390
400
410
420
430
440
450
460
470
480
490
500
510
520
530
540
550
560
570
580
590
600
610
620
630
640
650
660
670
680
690
700
710
720
730
740
750
760
770
780
790
800
810
820
830
840
850
860
870
880
890
900
910
920
930
940
950
960
970
980
990
1000
1010
1020
1030
1040
1050
1060
1070
1080
1090
1100
1110
1120
1130
1140
1150
CRIMINAL
REPORTS
Fifth Series/Cinquieme serie
Recueil de jurisprudence en droit criminel
[Indexed as: R. v. Latimer]
Robert William Latimer, Appellant v. Her Majesty the Queen,
Respondent and The Attorney General of Canada, the Attorney
General for Ontario, the Canadian Civil Liberties Association, the
Canadian AIDS Society, the Council of Canadians with Disabilities,
The Saskatchewan Voice of People with Disabilities, the Canadian
Association for Community Living, People in Equal Participation Inc.,
DAWN Canada: Disabled Women's Network Canada, People First of
Canada, the Catholic Group for Health, Justice and Life, the
Evangelical Fellowship of Canada, the Christian Medical and Dental
Society and Physicians for Life, Intervenors
Supreme Court of Canada
McLachlin
C.J.C., L'Heureux-Dube, Gonthier, Iacobucci, Major,
Binnie, Arbour JJ.
Heard: June 14, 2000
Judgment: January 18, 2001*
Docket: 26980, 2001 SCC 1
Edward L. Greenspan. Q.C., Mark Brayford, Q.C., Marie Henein, for Appellant
Kenneth W. MacKay, Q.C., Graeme G. Mitchell, Q.C., for Repondent
Robert J. Frater, Bradley Allison, for Intervenor, Attorney General of Canada
Michael Bernstein, for Intervenor, Attorney General for Ontario
Kent Roach, for Intervenor, Canadian Civil Liberties Association
R. Douglas Elliott, Patricia A. Lefebour, for Intervenor, Canadian AIDS
Society
Robert G. Richards, Q.C., Heather D. Heavin, for Intervenors, Council of
Canadians with Disabilities, Saskatchewan Voice of People with Disabilit-
ies, Canadian Association for Community Living, People in Equal Partici-
pation Inc., DAWN Canada: DisAbled Women's Network Canada, People
First of Canada
William J. Sammon, for Intervenor, Catholic Group for Health, Justice and Life
*A corrigendum issued by the court on January 18, 2001 has been incorporated herein.
David M. Brown, Janet Epp Buckingham, for Intervenors, Evangelical Fellow-
Ship of Canada, Christian Medical and Dental Society and Physicians for
Life
Defences ---- Necessity
---- No air of reality to defence where accused charged with
second degree murder of severely disabled daughter ---- Not sufficient
evidence on
any of three requirements of immediate peril, no reasonable legal alternative
and
proportionality ---- Modified objective test applying to first two requirements
---- As-
suming proportionality could be met in homicide situation, applying objective
test,
harm inflicted being immeasurably more serious that daughter's pain from
antici-
pated operation.
constitutional issues ---- Charter of Rights and Freedoms ---- Rights
and free-
doms ---- Life, liberty and security of person ---- Right to make full
answer and de-
fence ---- "Case to meet" principle under s. 7 not requiring
judge to make all rulings
before counsel addresses ---- No unfair trial resulting where trial judge
withdrawing
defence of necessity after counsel addresses in second degree murder trial
of father
accused of killing severely disabled daughter ---- Imperfect approach
of trial judge
not ambushing defence nor catching him unaware ---- Right to fair trial
not includ-
ing right to trial with increasing possibility of jury nullification ----Trial
judge's
comment about jury involvement in sentencing not resulting in unfair trial.
Constitutional issues ---- Charter of Rights and Freedoms ---- Rights
and free-
doms ---- Cruel and unusual punishment ---- Minimum sentence of life imprisonment
and no parole eligibility for 10 years under ss. 235 and 745© of
Criminal Code not
violating s. 12 of Charter where accused convicted of second degree murder
after he
killed his severely disabled daughter ---- Gravity of offence not outweighed
by indi-
vidual circumstances and sentence justified by need for denunciation ----
Not neces-
sary to consider whether constitutional exemption should have been granted.
The accused was charged
with first degree murder following the death of T, his 12-year-
old daughter, who had a severe form of cerebral palsy. T was quadriplegic
and her physi-
cal condition rendered her immobile. Her condition was permanent, caused
by neurologi-
cal damage at the time of her birth. She was said to have the mental capacity
of a four-
month-old baby, and could communicate only by means of facial expressions,
laughter
and crying. She was completely dependent on others for her care. She suffered
five to six
seizures daily. It was thought that she experienced a great deal of pain.
This could not be
reduced by medication since this would conflict with her anti-epileptic
medication and
her difficult in swallowing. She had to be spoon-fed, and her lack of
nutrients caused
weight loss. There was evidence that T could have been fed with a feeding
tube into her stomach, an option that would have improved her nutrition
and health, and that might
also have allowed for more effective pain medication to be administered.
The accused
and his wife rejected this option as intrusive and the first step to artificially
preserving her
life. T had a serious disability but was not terminally ill. She had undergone
numerous
surgeries. Including the implanting of metal rods to support her spine.
The Latimers
learned that the doctors wished to perfom additional surgery on a dislocated
hip which
involved removing her upper thigh bone. According to the accused's wife,
they perceived
this as mutilation.
The accused decided to take his daughter's life. While his wife and T's
siblings were at
church, he carried T to his pickup truck, seated her in the cab, and inserted
a hose from
The truck's exhaust pipe into the cab. She died from the carbon monoxide.
The accused at
First maintained that T had simply passed away in her sleep, but later
confessed to having
taken her life. Charged with first degree murder, the jury found him guilty
of second
Degree murder. The sentence imposed was life imprisonment without parole
eligibility for
10 years. The majority of the Saskatchewan Court of Appeal upheld the
accused's con-
viction and sentence. Bayda C.J.S. favoured a constitutional exemption
from the mini-
mum sentence. The Supreme Court ordered a new trial on the basis of jury
tampering
with the jury selection process.
On the second trial, a jury again convicted of second degree murder. During
the second
trial, defence counsel asked the trial judge for a ruling, in advance
of his closing submis-
sions, on whether the jury could consider the defence of necessity. The
trial judge told
counsel that he would rule on necessity after the closing submissions.
Some of the de-
fence counsel's address referred to the defence of necessity. The judge
later ruled that the
defence was not available. In the course of its deliberations, the jury
sent the trial judge a
note inquiring whether it could have any input on sentencing. The trial
judge told the jury
it was not to concern itself with the penalty. He added: "it may
be that later on, once you
have reached a verdict, you ---- we will have some discussions about that".
After the jury
returned with a guilty verdict, the trial judge explained the mandatory
minimum sentence
of life imprisonment, and asked the jury whether it had any recommendation
as to
whether the ineligibility for parole should exceed the minimum period
of 10 years. Some
jury members appeared upset, according to the trial judge, and later sent
a note asking
him if they could recommend less than the 10-year minimum. The trial judge
explained
that the Criminal Code provided only for a recommendation over the 10-year
minimum,
but suggested that the jury could make any recommendation it liked. The
jury recom-
mended one year before parole eligibility. The trial judge the granted
a constitutional
exemption from the mandatory minimum sentence, sentencing the accused
to one year of
imprisonment, and one year on probation. The Saskatchewan Court of Appeal
affirmed
the conviction but reversed the sentence. It imposed the mandatory minimum
sentence of
life imprisonment without parole eligibility for 10 years.
Held: The appeals against conviction and sentence were dismissed.
There was no air of reality to the defence of necessity. The defence of
necessity is narrow
and of limited application in criminal law. The accused must establish
the existence of
the three elements of the defence. First, there is the requirement of
imminent peril or
danger. Second, the accused must have had no reasonable legal alternative
to the course
of action he or she undertook. Third, there must be proportionality between
the harm
inflicted and the harm avoided. The test for the first two requirements
are to be evaluated
on a modified objective test which can take into account the accused's
perceptions as
long as they are reasonable. The test of proportionality requires that
the harm avoided
must be either comparable to or clearly greater that the harm inflicted.
The test must be
objective as the test is a matter of community standards infused with
constitutional stan-
dards such as, in the case, the s. 15(1) equality rights of the disabled.
Here, the trial judge
was correct to remove the defence from the jury since there was no air
of reality to any of
the three requirements for necessity. The accused did not himself face
any peril, and T's
ongoing pain did not constitute an emergency in this case. T's proposed
surgery did not
pose and imminent threat to her life, nor did her medical condition. It
was not reasonable
for the accused to form the belief that further surgery amounted to imminent
peril, partic-
ularly when better pain management was available. The accused had
at least one reasona-
ble legal alternative to killing his daughter: he could have struggled
on, with what was
unquestionably a difficult situation, by helping T to live and by minimizing
her pain as
much as possible or by permitting the insertion of a feeding tube or by
relying on a group
home. Leaving open the question of whether the proportionality requirement
can ever be
met in a homicide situation, the harm avoided in this case was, compared
to death, com-
pletely disproportionate. 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 timing of the removal of the defence of necessity from the jury had
not rendered the
accused's trial unfair contrary to s. 7 of the Charter. The "case
to meet" principle of the
accused's right to make full answer and defence does not require that
the trial judge make
all ruling prior to counsel addressing the jury. It is customary and in
most instances
preferable for the trial judge to rule on the availability of a defence
prior to closing ad-
dresses to the jury, but in circumstances of this case, the fairness of
the trial had not
been affected. While the trial judge's approach was imperfect, the benchmark
for measur-
ing trial fairness is not perfection. The trial judge's decision did not
ambush the accused
nor should it have caught him unaware. Surprise, if any, was minimal and
there was no
prejudice.
|The trial judge did not prejudice the accused's rights in replying to
the question from the
jury on whether it could offer input on sentencing. The trial did not
become unfair simply
because the trial judge undermined the jury's de facto power to nullify.
In most if not all
cases, jury nullification will not be a valid factor in analyzing trial
fairness for the ac-
cused. Guarding against jury nullification is a desirable and legitimate
exercise for a trial
judge: in fact, a judge is required to take steps to ensure that the jury
will apply the law
properly.
The mandatory minimum sentence for second degree murder in this case did
not amount
to cruel and unusual punishment within the meaning of s. 12 of the Charter.
There was
therefore, no basis for granting a constitutional exemption. Since in
substance the accused
had conceded the general constitutionality of ss. 235 and 745(c) of the
Criminal Code as
these sections were applied in combination, this appeal was restricted
to a consideration
of the particularized inquiry. In applying s. 12, the gravity of the offence,
as well as the
particular circumstances of the offender and the offence, must be considered.
Here, the
minimum mandatory sentence was not grossly disproportionate. Murder is
the most seri-
ous crime known to law. Even if the gravity of second degree murder is
reduced in com-
parison to first degree murder, it is an offence accompanied by an extremely
high degree
of criminal culpability. Here, the gravest possible consequences resulted
from an act of
The most serious and morally blameworthy intentionally. In considering
the characteris-
tics of the offender and the particular circumstances of the offence,
any aggravating cir-
cumstances had to be weighed against any mitigating circumstances. Due
consideration
had to be given to the accused's initial attempts to conceal his actions,
his lack of re-
morse, his position of trust, the significant degree of planning and premeditation,
and T's
extreme vulnerability. On the other hand, the accused's good character
and standing in
the community, his tortured anxiety about T's well-being, and his laudable
perseverance
as a caring and involved parent had to be considered. The personal characteristics
and
particular circumstances of this case did not displace the serious gravity
of this offence.
The sentence was consistent with a number of valid penological goals and
sentencing
principles. Although in this case the sentencing principles of rehabilitation,
specific deter-
rence and protection were not triggered, the mandatory minimum sentence
played an im-
portant role in denouncing murder.
Section 749 of the Criminal Code provides for the royal prerogative of
mercy, which is a
Matter for the executive, not the courts.
Cases considered / Jurisprudence citee:
Perka v. R., [1984] 2 S.C.R. 232, 13 D.L.R. (4th) 1, 55 N.R. 1,
[1984] 6 W.W.R.289, 14
C.C.C. (3d) 385, 42 C.R.
(3d) 113 (S.C.C.) ---- applied
R. v. Cracknell, [1931] O.R. 634, 56 C.C.C. 190, [1931] 4 D.L.R.
657 (Ont. C.A.) ----
referred to
R. v. Dudley (1884), 14 Q.B.D. 273, 15 Cox C.C. 624 (Eng. Q.B.)
---- considered
R. v. Goltz, 8 C.R. (4th) 82, 5 B.C.A.C. 161, 11 W.A.C. 161, [1991]
3 S.C.R. 485, 7
C.R.R. (2d) 1, 67 C.C.C.
(3d) 481, 61 B.C.L.R. (2d) 145, 131 N.R. 1, 31 M. V.R. (2d)
137 (S.C.C.) ---- considered
R. v. Guiller (1985), 48 C.R. (3d) 226, 25 C.R.R. 273 (Ont. Dist.
Ct.) ---- considered
R. v. Hibbert, 40 C.R. (4th) 141, 99 C.C.C. (3d) 193, 184 N.R. 165, 84
O.A.C. 161,
[1995] 2 S.C.R. 973 (S.C.C.)
---- considered
R. v. Howe, [1987] 1 A.C. 417, [1987] 2 W.L.R. 568 (U.K. H.L.)
---- considered
R. v. L. (T.P.), 80 N.R. 161, [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193,
82 N.S.R. (2d)
271, 37 C.C.C. (3d) 1,
61 C.R. (3d) 1, 32 C.R.R. 41, 207 A.P.R. 271 (S.C.C.) ----
referred to
R. v. Latimer, {1995] 8 W.W.R. 609, 41 C.R. (4th) 1, 126 D.L.R.
(4th) 203, 99 C.C.C.
(3d) 481, 134 Sask. R.
1, 101 W.A.C. 1 (Sask. C.A.) ---- referred to
R. v. Latimer, 112 C.C.C (3d) 193, 4 C.R. (5th) 1, [1997] 2 W.W.R.
525, 142 D.L.R.
(4th) 577, 207 N.R. 215,
41 C.R.R. (2d) 281, 152 Sask. R. 1, 140 W.A.C. 1, [1997] 1
S.C.R. 217 (S.C.C.) ----
referred to
R. v. Loughnan, [1981] V.R. 443 (Australia Vic. Sup. Ct.) ----
considered
R. v. Luxton, [1990] 6 W.W.R. 137, 76 Alta. L.R. (2d) 43, 79 C.R.
(3d) 193, [1990] 2
S.C.R. 711, 58 C.C.C.
(3d) 449, 112 N.R. 193, 50 C.R.R. 175, 111 A.R. 161
(S.C.C.) ----referred
to
R. v. M. (C.A.), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d)
327, 73 B.C.A.C. 81,
120 W.A.C. 81, [1996]
1 S.C.R. 500 (S.C.C.) ---- considered
R. v. Martineau, [1990] 6 W.W.R. 97, 112 N.R. 83, 58 C.C.C. (3d)
353, 76 Alta. L.R.
(2d) 1, 79 C.R. (3d) 129,
50 C.R.R. 110, 109 A.R. 321, [1990] 2 S.C.R. 633
(S.C.C.) ---- considered
R. v. McLean, [1993] S.C.R. 688, 61 C.C.C. 9, [1934] 2 D.L.R. 440
(S.C.C.) ---- referred
to
R. v. Miller (1976), [1977] 2 S.C.R. 680, 31 C.C.C. (2d) 177, [1976] 5
W.W.R. 711, 38
C.R.N.S. 139, 70 D.L.R.
(3d) 324, 11 N.R. 386 (S.C.C.) ---- applied
R. V. Morgentaler, (sub nom. R. v. Morgentaler (No. 2)) [1988]
1 S.C.R. 30, 44 D.L.R.
(4th) 385, 26 O.A.C. 1,
37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1,
63 O.R. (2d) 281 (note)
(S.C.C.) ---- considered
R. v. Morgentaler (No. 5) (1975), [1976] 1 S.C.R. 616, 30 C.R.N.S.
209, 4 N.R. 277, 20
C.C.C. (2d) 449, 53 D.L.R.
(3d) 161 (S.C.C.) ---- considered
R. v. Morrisey, 2000 SCC 39, 36 C.R. (5th) 85, 148 C.C.C. (3d)
1, 191 D.L.R. (4th) 86,
259 N.R. 95 (S.C.C.) ----
applied
R. v. Mulvahill (1993), 21 B.C.A.C. 296, 37 W.A.C. 296 (B.C. C.A.)
---- considered
R. v. Osolin, 26 C.R. (4th) 1, 38 B.C.A.C. 81, 62 W.A.C. 81, 86
C.C.C. (3d) 481, [1993]
4 S.C.R. 595, 162 N.R.
1, 109 D.L.R. (4th) 478, 19 C.R.R. (2d) 93 (S.C.C.) ----
considered
R. v. Rose, 40 O.R. (3d) 576 (headnote only), 129 C.C.C. (3d) 449,
232 N.R. 83, 166
D.L.R. (4th) 385, 20 C.R.
(5th) 246, 115 O.A.C. 201, [1998] 3 S.C.R. 262. 57 C.R.R.
(2d) 219 (S.C.C.) ----
considered
R. v. Sarson, 197 N.R. 125, 107 C.C.C. (3d) 21, 135 D.L.R. (4th)
402, 36 C.R.R. (2d) 1,
91 O.A.C. 124, 49 C.R.
(4th) 75, [1996] 2 S.C.R. 223 (S.C.C.) ---- considered
R. v. Shipley (1784), 99 E.R. 774, 21 State Tr. 847, 3 Term Rep.
428n, 4 Dougl. 73 (Eng.
K.B.) ---- considered
R. v. Smith, [1987] 5 W.W.R. 1, [1987] 1 S.C.R. 1045, (sub nom.
Smith v. R.) 40 D.L.R.
(4th) 435, 75 N.R. 321,
15 B.C.L.R. (2d) 273, (sub nom. Smith v. R.) 34 C.C.C. (3d)
97, 58 C.R. (3d) 193,
(sub nom. Smith v. R.) 31 C.R.R. 193 (S.C.C.) ---- considered
R. v. Stevenson (1990), 58 C.C.C. (3d) 464, 41 O.A.C. 1 (Ont. C.A.)
---- referred to
R. v. Underwood (1997), 221 N.R. 161, 121 C.C.C. (3d) 117, 155
D.L.R. (4th) 13, 12
C.R. (5th) 241, 48 C.R.R.
(2d) 205, [1998] 1 S.C.R. 77, 209 A.R. 276, 160 W.A.C.
276, [1999] 4 W.W.R. 326,
67 Alta. L.R. (3d) 81 (S.C.C.) ---- distinguished
Southwark London Borough
Council v. Williams, [1971] Ch. 734, [1971] 2 All E.R. 175
(Eng. C.A.) ---- considered
Steele v. Mountain Institution, [1990] 6 W.W.R. 673, 121 N.R. 198,
[1990] 2 S.C.R.
1385, 51 B.C.L.R. (2d)
1, 60 C.C.C. (3d) 1, 80 C.R. (3d) 257, 2 C.R.R. (2d) 304
(S.C.C.) ---- considered
United States v. Holmes (1842), 26 F. Cas. 360 (U.S. Pa.) ----
considered
Statutes considered / Legislation citee:
Canadian Charter of
Rights and Freedoms/Charte canadienne des droits et libertes, Part
1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982
(U.K.), 1982,
c. 11/Partie I de la Loi constitutionnelle de 1982, constituant l'annexe
B de la Loi de
1982 sur le Canada (R.-U.), 1982, c. 11
Generally/en general ----
referred to
s. 1 ---- considered
s. 7 ---- considered
s. 12 ---- considered
s. 15(1) ---- considered
Criminal Code/Code criminel, R.S.C./L.R.C. 1985, c. C-46
Generally/en general ----
referred to
s. 235 ---- considered
s. 718 [rep. & sub./abr.
et rempl. 1995, c. 22, s. 6] ---- considered
s. 745(c) [en./ad. 1995,
c. 22. S. 6] ---- considered
s. 745.2 [en./ad. 1995,
c. 22, s. 6] ---- considered
s. 749 [rep. & sub./abr.
Et rempl. 1995, c. 22, s. 6] ---- considered
APPEAL by accused
from judgement reported at (1998), 131 C.C.C. (3d) 191, 22 C.R.
(5th) 380, 172 Sask. R. 161, 185 W.A.C. 161, [1999] 6 W.W.R. 118 (Sask.
C.A.), dis-
missing accused's appeal from conviction and allowing Crown appeal from
sentence im-
posed upon conviction of accused on charge of second degree murder.
Per curiam:
1 This appeal arises from the death of Tracy Latimer,
a 12-year-old girl who
Had a severe form of cerebral palsy. Her father, Robert Latimer, took
her life
Some seven years ago. He was found guilty of second degree murder. This
ap-
Peal deals with three questions of law arising from his trial. First,
did the trial
Judge mishandle the defence of necessity, resulting in an unfair trial?
Second,
Was the trial unfair because the trial judge misled the jury into believing
it would
Have some input into the appropriate sentence? Third, does the imposition
of the
Mandatory minimum sentence for second degree murder constitute "cruel
and
Unusual punishment" in this case, so that Mr. Latimer ("the
appellant") should
Receive a constitutional exemption from the minimum sentence?
2 We
conclude that the answer to all three questions is no. The defence of
Necessity is narrow and of limited application in criminal law. In this
case, there
Was no air of reality to that defence. The trial judge was correct to
conclude that
The jury should not consider necessity. While the timing of the removal
of this
Defence from the jury's consideration was later in the trial than usual,
it did not
render the appellant's trial unfair or violate his constitutional rights.
On the sec-
ond issue, the trial judge did not prejudice the appellant's rights in
replying to a
question from the jury on whether it could offer input on sentencing.
In answer
to the third question, we conclude that the mandatory minimum sentence
for
second degree murder in this case does not amount to cruel and unusual
punish-
ment within the meaning of x. 12 of the Canadian Charter of Rights and
Free-
doms. The test for what amounts to "cruel and unusual punishment"
is a de-
manding one, and the appellant has not succeeded in showing that the sentence
in his case is "grossly disproportionate" to the punishment
required for the most
serious crime known to law, murder.
3 We
conclude that Mr. Latimer's conviction and sentence of life in prison
With a mandatory minimum of 10 years' imprisonment for second degree mur-
der should be upheld. This means that the appellant will not be eligible
for pa-
role consideration for 10 years, unless the executive elects to exercise
the power
to grant him clemency from this sentence, using the royal prerogative
of mercy.
The Court's role is to determine the questions of law that arise in this
appeal; the
matter of executive clemency remains in the realm of the executive, and
it is
discussed later in these reasons.
4 The law has a long history of difficult cases.
We recognize the questions that
Arise in Mr. Latimer's case are the sort that have divided Canadians and
sparked
A national discourse. This judgement will not end that discourse.
5
Mr. Latimer perceived his daughter and family to be in a difficult and
trying
Situation. It is apparent from the evidence in this case that he faced
challenges of
The sort most Canadians can only imagine. His care of his daughter for
many
Years was admirable. His decision to end his daughter's life was an error
in
Judgement. The taking of another life represents the most serious crime
in our
Criminal law.
I. Facts
6 The appellant, Robert Latimer farmed in Wilkie,
Saskatchewan. His 12-
year-old daughter, Tracy, suffered a severe form of cerebral palsy. She
was
quadriplegic and her physical condition rendered her immobile. She was
bedrid-
den for much of the time. Her condition was a permanent one, caused by
neuro-
logical damage at the time of her birth. Tracy was said to have the mental
capac-
ity of a four-month-old baby, and she could communicate only by means
of
facial expressions, laughter and crying. She was completely dependent
on others
for her care. Tracy suffered seizures despite the medication she took.
It was
thought she experienced a great deal of pain, and the pain could not be
reduced
by medication since the pain medication conflicted with her anti-epileptic
medi-
cation and her difficulty in swallowing. Tracy experienced five to six
seizures
daily. She had to be spoon-fed, and her lack of nutrients caused weight
loss.
7 There was evidence that Tracy could have been
fed with a feeding tube into
her stomach, and option that would have improved her nutrition and health,
and
that might also have allowed for more effective pain medication
to be adminis-
tered. The Latimers rejected the feeding-tube option as being intrusive
and as
representing the first step on a path to preserving Tracy's life artificially.
8 Tracy
had a serious disability but she was not terminally ill. Her doctors
Anticipated that she would have to undergo repeated surgeries, her breathing
dif-
ficulties had increased, but her life was not in its final stages.
9 Tracy
enjoyed music, bonfires, being with her family and the circus. She
liked to play music on a radio, which she would use with a special button.
Tracy
could apparently recognize family members and she would express joy at
seeing
them. Tracy also loved being rocked gently by her parents.
10
Tracy underwent numerous surgeries in her short lifetime. In 1990, surgery
tried to balance the muscles around her pelvis. In 1992, it was used to
reduce the
abnormal curvature in her back.
11 Like the majority of totally involved, quadriparetic
children with cerebral
palsy, Tracy had developed scoliosis, an abnormal curvature and rotation
in the
back, necessitating surgery to implant metal rods to support her spine.
While it
was a successful procedure, further problems developed in Tracy's right
hip: it
became dislocated and caused her considerable pain.
12 Tracy
was scheduled to undergo further surgery on November 19, 1993.
this was to deal with her dislocated hip and, it was hoped, to lessen
her constant
pain. The procedure involved removing her upper thigh bone which would
leave her lower leg loose without any connecting bone; it would be held
in place
only by muscle and tissue. The anticipated recovery period for this surgery
was
one year.
13
The Latimers were told that this procedure would cause pain, and the doctors
involved suggested that further surgery would be required in the future
to relieve
the pain emanating from various joints in Tracy's body. According to the
appel-
ant's wife, Laura Latimer, further surgery was perceived as mutilation.
As a
result, Robert Latimer formed the view that his daughter's life was not
worth
living.
14
In the weeks leading up to Tracy's death, the Latimers looked into the
option
of placing Tracy in a group home in North Battleford. She had lived there
be-
tween July and October 12, 1993, just prior to her death, while her mother
was
pregnant. The Latimers applied to place Tracy in the home in October,
but later
concluded they were not interested in permanently placing her in that
home at
that time.
15 On
October 12, 1993, after learning that the doctors wished to perform this
additional surgery, the appellant decided to take his daughter's life.
On Sunday,
October 24, 1993, while his wife and Tracy's siblings were at church,
Robert
Latimer carried Tracy to his pickup truck, seated her in the cab, and
inserted a
hose from the truck's exhaust pipe into the cab. She died from the carbon
monoxide.
16
The police conducted an autopsy and discovered carbon monoxide in her
blood. The appellant at first maintained that Tracy simply passed away
in her
sleep. He later confessed to having taken her life, and gave a statement
to the
investigating police and partially re-enacted his actions on videotape.
Mr. La-
timer also told police that he had considered giving Tracy an overdose
of
valium, or "shooting her in the head".
17
Mr. Latimer has been convicted of murder twice in this case. He was ini-
tially charged with first degree murder and convicted by a jury of second
degree
murder. The Court of Appeal for Saskatchewan upheld his conviction and
life
sentence with no eligibility for parole for 10 years, with Bayda C.J.S.
dissenting
on the sentence: R. v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.)
("Latimer
(No. 1)"). The case was then appealed to this Court: [1997] 1 S.C.R.
217
(S.C.C.). It turned out that the prosecutor had interfered with the jury
selection
process. The Crown conceded that a new trial could not be avoided. In
the sec-
ond trial, Mr. Latimer was again convicted of second degree murder, and
it is
from that conviction that this appeal arises.
18
During the second trial, two things occurred that, the appellant submits,
re-
sulted in an unfair trial. First, as counsel were about to make closing
addresses
to the jury, defence counsel asked the trial judge for a ruling on whether
the jury
could consider the defence of necessity, He wanted this ruling in advance
of his
closing submissions, since he planned to tailor his address to the judge's
ruling.
the trial judge, however, refused to make any ruling until after hearing
coun-
sel's closing addresses. Defence counsel made submissions, including some
on
the necessity defence. When counsel had concluded their addresses, the
trial
judge ruled that the jury was not entitled to consider necessity.
19
Second, some time after beginning their deliberations, the jury sent a
number
Of written questions to the trial judge, one of which was: "Is there
any possible
Way we can have input to a recommendation for sentencing?" The trial
judge
Told the jury it was not to concern itself with the penalty. He said:
… the penalty in
any of these charges is not the concern of the jury. Your
concern is, as I said,
the guilt or innocence of the accused, and you must
reach ---- that's your
job, your reach that conclusion, and don't concern your-
self what the penalty
might be. We say that because we don't want you to be
influenced one way or
the other with what that penalty is. So it may be that
later on, once you have
reached a verdict, you ---- we will have some discus-
sion about that, but not
at this stage of the game. You must just carry on and
answer the question that
was put to you, okay.
The appellant highlights the underlined passage as misleading the jury.
20 After
the jury returned with a guilty verdict, the trial judge explained the
mandatory minimum sentence of life imprisonment, and asked the jury whether
it had any recommendation as to whether Mr. Latimer's ineligibility for
parole
should exceed the minimum period of 10 years. Some jury members appeared
upset, according to the trial judge, and later on sent a note asking him
if they could
recommend less than the 10-year minimum. The trial judge explained that
the
Criminal Code provided only for a recommendation over the 10-year minimum,
but suggested that the jury could make any recommendation it liked. The
jury
recommended one year before parole eligibility. The trial judge then granted
a
constitutional exemption from the mandatory minimum sentence, sentencing
the
apellant to one year of imprisonment and one year on probation, to be
spent
Confined to his farm.
21 The
Court of Appeal for Saskatchewan affirmed Mr. Latimer's conviction
but reversed the sentence. It imposed the mandatory minimum sentence for
sec-
ond degree murder of life imprisonment without eligibility for parole
for 10
years.
II. Legislation
22 Criminal
Code, R.S.C. 1985, c. C-46
235.
(1) Every one who commits first degree murder or second degree mur-
der
is guilty of an indictable offence and shall be sentenced to imprisonment
for
life.
(2)
For the purposes of Part XXIII, the sentence of imprisonment for life
prescribed
by this section is a minimum punishment.
745.
Subject to section 745.1, the sentence to be pronounced against a person
who
is not to be sentenced to imprisonment for life shall be
…..
(c)
in respect of a person who has been convicted of second degree
murder,
that the person be sentenced to imprisonment for life with-
out
eligibility for parole until the person has served at least ten years
of
the sentence or such greater number of years, not being more than
twenty-five
years, as has been substituted therefor pursuant to sec-
tion
745.4…
Canadian
Charter of Rights and Freedoms
1.
The Canadian Charter of Rights and Freedoms guarantees the rights
and
freedoms
set out in it subject only to such reasonable limits prescribed by
law
as can be demonstrably justified in a free and democratic society.
7.
Everyone has the right to life, liberty and security of the person and
the
right
not to be deprived thereof except in accordance with the principles of
fundamental
justice.
12.
Everyone has the right not to be subjected to any cruel and unusual treat-
ment
or punishment.
III. Judicial History
23 Mr. Latimer was
tried by jury, during the course of which the trial judge
made two rulings (besides his handling of the jury's inquiry as to sentence)
that
are at issue in this appeal. First, as previously outlined, he held that
the jury was
not entitled to consider the defence of necessity. Second, the trial judge
granted
a constitutional exemption from the mandatory minimum sentence for second
degree murder: (1997), 121 C.C.C. (3d) 326 (Sask. Q.B.). the trial judge
con-
cluded that the mandatory sentence amounted to cruel and unusual punishment
in this case. He reasoned that the exemption was a valid and appropriate
remedy,
given the particular circumstances of this offender, his motives, the
public reac-
tion to the mandatory sentence in Mr. Latimer's first trial, and his reduced
level
of criminal culpability.
24 The Court of Appeal
for Saskatchewan dismissed the appeal from conviction
In a per curiam decision: (1998), 131 C.C.C. (3d) 191 (Sask. C.A.).
The trial
Judge was correct to remove the defence of necessity from the jury, the
Court of
Appeal held, and the timing of the trial judge's ruling did not result
in an unfair
trial. The court reversed the trial judge's remedy of a constitutional
exemption,
commenting, at p. 216, that "the learned trial judge took too much
upon himself
in bypassing the judgment of this Court, the direction of Parliament,
and the
executive power of clemency". The Court of Appeal concluded that
Mr. Latimer
must serve the mandatory 10-year sentence before parole eligibility.
IV. Issues
25 The
issues divide into an appeal from conviction based on the following first
three grounds and an appeal from sentence based on the subsequent grounds,
and can be stated as:
1. Should the jury have
been entitled to consider the defence of
necessity?
2. Did the timing of the
trial judge's ruling as to the availability of
necessity
render the appellant's trial unfair?
3. Did the trial judge
render the appellant's trial unfair because of
trial
procedures that might have lessened the chance of jury
nullification?
4. Would the imposition
of the mandatory minimum sentence for
second
degree murder constitute cruel and unusual punishment,
contrary
to s. 12 of the Charter, in this case?
5. If the answer to Question
4 is "yes", can that violation be saved
under
s. 1 as a reasonable limit demonstrably justified in a free
and
democratic society?
6. If the answer to Question
5 is "no", should a constitutional ex-
emption
be granted?
V. Analysis
A Appeal against Conviction
(1) The Availability of the Defence of Necessity
(a) The Three Requirements for the Defence of Necessity
26
We propose to set out the requirements for the defence of necessity first,
before applying them to the facts of this appeal. The leading case on
the defence
of necessity is Perka v. R, [1984] 2 S.C.R. 232 (S.C.C.). Dickson J.,
later C.J.,
outlined the rationale for the defence at p. 248:
it
rests on a realistic assessment of human weakness, recognizing that a
lib-
eral and humane criminal
law cannot hold people to the strict obedience of
laws in emergency situations
where normal human instincts, whether of self-
preservation or of altruism,
overwhelmingly impel disobedience. The object-
tivity of the criminal
law is preserved; such acts are still wrongful, but in the
circumstances they are
excusable, Praise is indeed not bestowed, but pardon
is. …
27 Dickson J. insisted that the defence of necessity
be restricted to those rare
cases in which true "involuntariness" is present. The defence,
he held, must be
"strictly controlled and scrupulously limited" (p. 250). It
is well-established that
the defence of necessity must be of limited application. Were the criteria
for the
defence loosened or approached purely subjectively, some fear, as did
Edmund
Davies L.J., that necessity would "very easily become simply a mask
for
Anarchy": Southwark London borough Council v. Williams, [1971] Ch.
734
(Eng. C.A.), at p. 746.
28 Perka
outlined three elements that must be present for the defence of neces-
sity. First, there is the requirement of imminent peril or danger. Second,
the ac-
cused must have had no reasonable legal alternative to the course of action
he or
she undertook. Third, there must be proportionality between the harm inflicted
and the harm avoided.
29 To
begin, there must be an urgent situation of "clear and imminent peril":
R.
v. Morgentaler (No. 5) (1975), [1976] 1 S.C.R. 616 (S.C.C.), at p. 678.
In short,
disaster must be imminent, or harm unavoidable and near. It is not enough
that
the peril is foreseeable or likely; it must be on the verge of transpiring
and virtu-
ally certain to occur. In Perka, Dickson J. expressed the requirement
of immi-
nent peril at p. 251: "At a minimum the situation must be so emergent
and the
peril must be so pressing that normal human instincts cry out for action
and
make a counsel of patience unreasonable". The Perka case, at p. 251,
also offers
the rationale for this requirement of immediate peril: "The requirement
… tests
whether it was indeed unavoidable for the actor to act at all". Where
the situa-
toin of peril clearly should have been foreseen and avoided, an accused
person
cannot reasonably claim any immediate peril.
30 The
second requirement for necessity is that there must be no reasonable
Legal alternative to disobeying the law. Perka proposed these questions,
at pp.
251-52: "Given that the accused had to act, could he nevertheless
realistically
have acted to avoid the peril or prevent the harm, without breaking the
law? Was
there a legal way out?" (emphasis in original). If there was
a reasonable legal
alternative to breaking the law, there is no necessity. It may be noted
that the
requirement involves a realistic appreciation of the alternatives open
to a person;
the accused need not be placed in the last resort imaginable, but he must
have no
reasonable legal alternative. If an alternative to breaking the law exists,
the de-
fence of necessity on this aspect fails.
31 The
third requirement is that there be proportionality between the harm in-
flicted and the harm avoided. The harm inflicted must not be disproportionate
to
the harm the accused sought to avoid. See Perka, per Dickson J., at p.
252:
No rational criminal justice
system, no matter how humane or liberal, could
excuse the infliction
of a greater harm to allow the actor to avert a lesser evil.
In
such circumstances we expect the individual to bear the harm and refrain
from acting illegally.
If he cannot control himself we will not excuse him.
evaluating proportionality
can be difficult. It may be easy to conclude that there
is no proportionality in some cases, like the example given in Perka of
the per-
son who blows up a city to avoid breaking a finger. Where proportionality
can
quickly be dismissed, it makes sense for a trial judge to do so and rule
out the
defence of necessity before considering the other requirements for necessity.
But
most situations fall into a grey area that requires a difficult balancing
of harms.
in this regard, it should be noted that the requirement is not that one
harm (the
harm avoided) must always clearly outweigh the other (the harm inflicted).
Rather, the two harms must, at a minimum, be of a comparable gravity.
That is,
the harm avoided must be either comparable to, or clearly greater than,
the harm
inflicted. As the Supreme Court of Victoria in Australia has put it, the
harm
inflicted "must not be out of proportion to the peril to be avoided":
R. v.
Loughnan, [1981] V.R. 443 (Australia Vic. Sup. Ct.), at p. 448.
32 Before
applying the three requirements of the necessity defence to the facts
of this case, we need to determine what test governs necessity. Is the
standard
objective or subjective? A subjective test would be met if the person
believed he
or she was in imminent peril with no reasonable legal alternative to committing
the offence. Conversely, an objective test would not assess what the accused
believed; it would consider whether in fact the person was in peril with
no rea-
sonable legal alternative. A modified objective test falls somewhere between
the
two. It involves an objective evaluation, but one that takes into account
the situ-
ation and characteristics of the particular accused person. We conclude
that, for
two of the three requirements for the necessity defence, the test should
be the
modified objective test.
33 The
first and second requirements ---- imminent peril and no reasonable legal
alternative ---- must be evaluated on the modified objective standard
described
above. As expressed in Perka, necessity is rooted in an objective standard:
"in-
voluntariness is measured on the basis of society's expectation of appropriate
and normal resistance to pressure" (p.259). We would add that it
is appropriate,
in evaluating the accused's conduct, to take into account personal characteristics
that legitimately affect what may be expected of that person. The approach
taken
in R. v. Hibbert, [1995] .C.R. 973 (S.C.C.), is instructive. Speaking
for the
Court, Lamer C.J. held, at para. 59, that:
It
is appropriate to employ an objective standard that takes into account
the
particular circumstances
of the accused, including his or her ability to per-
ceive the existence of
alternative course of action.
While an accused's
perceptions of the surrounding facts may be highly relevant
In determining whether his conduct should be excused, those perceptions
remain
Relevant only so long as they are reasonable. The accused person must,
at the
Time of the act. Honestly believe, on reasonable grounds, that he faces
a situation
of imminent peril that leaves no reasonable legal alternative open. There
must be
a reasonable basis for the accused's beliefs and actions, but it would
be proper to
take into account circumstances that legitimately affect the accused person's
ability to evaluate his situation. The test cannot be a subjective one,
and the
accused who argues that he perceived imminent peril without an alternative
would only succeed with the defence of necessity if his belief was reasonable
giver his circumstances and attributes. We leave aside for a case in which
it
arises the possibility that an honestly held but mistaken belief could
ground a
"mistake of fact" argument on then separated inquiry into mens
rea.
34 The third requirement for the defence of necessity,
proportionality, must be
measured on an objective standard, as it would violate fundamental principles
of
the criminal law to do otherwise. Evaluating the nature of an act is fundamen-
tally a determination reflecting society's values as to what is appropriate
and
what represents transgression. Some insight into this requirement is provided
by George Fletcher, in a passage from Rethinking Criminal Law (1978),
at p.
804. Fletcher spoke of the comparison between the harm inflicted and the
harm
avoided, and suggested that there was a threshold at which a person must
be
expected to suffer the harm rather than break the law. He continued:
Determining this threshold
is patently a matter of moral judgement about what
we expect people to be
able to resist in trying situations. A valuable aid in
making that judgement
is comparing the competing interests at stake and as-
sessing the degree to
which the actor inflicts harm beyond the benefit that
accrues from his action.
The evaluation of
the seriousness of the harms must be objective. A subjective
evaluation of the competing harms would, by definition, look at the matter
from
the perspective of the accused person who seeks to avoid harm, usually
to him-
self. The proper perspective, however, is an objective one, since evaluating
the
gravity of the act is a matter of community standards infused with constitutional
considerations (such as, in this case, the s. 15(1) equality rights of
the disabled).
We conclude that the proportionality requirement must be determined on
a
purely objective standard.
The application of the Requirements for necessity in This Case
35 The
inquiry here is not whether the defence of necessity should in fact ex-
cuse Mr. Latimer's actions, but whether the jury should have been left
to con-
sider this defence. The correct test on that point is whether there is
an air of
reality to the defence. In R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.),
at p. 676,
Cory J. stated:
…
a defence should not be put to the jury if a reasonable jury properly
in-
structed would have been
unable to acquit on the basis of the evidence ten-
dered in support of the
defence. On the other hand, if a reasonable jury prop-
erly instructed could
acquit on the basis of the evidence tendered with regard
to that defence, then
it must be put to the jury. It is for the trial judge to
decide
whether the evidence is sufficient to warrant putting a defence to a
jury as this is a question
of law alone.
The question is whether
there is sufficient evidence that, if believed, would al-
Low a reasonable jury ---- properly charged as acting judicially ----
to conclude
That the defence applied and acquit the accused.
36
For the necessity defence, the trial judge must be satisfied that there
is evi-
dence sufficient to give an air of reality to each of the three requirements.
If the
trial judge concludes that there is no air of reality to any one of the
three require-
ments, the defence of necessity should not be left to the jury.
37 In this case, there was no air of reality to the three requirements of necessity.
38 The
first requirement is imminent peril. It is not met in this case. The appel-
lant does not suggest he himself faced any peril; instead he identifies
a peril to
his daughter, stemming from her upcoming surgery which he perceived as
a
form of mutilation. Acute suffering can constitute imminent peril, but
in this
case there was nothing to her medical condition that placed Tracy in a
dangerous
situation where death was an alternative. Tracy was thought to be in pain
before
the surgery, and the pain was expected to continue, or increase, following
the
surgery. But that ongoing pain did not constitute an emergency in this
case. To
borrow the language of Edmund Davies L.J. in Southwark London Borough
Council, supra, at p. 746, we are dealing not with an emergency but with
"an
obstinate and long-standing state of affairs". Tracy's proposed surgery
did not
pose an imminent threat to her life, nor did her medical condition. In
fact,
Tracy's health might have improved had the Latimers not rejected the option
of
relying on a feeding tube. Tracy's situation was not an emergency. The
appellant
can be reasonably expected to have understood that reality. There was
no evi-
dence of a legitimate psychological condition that rendered him unable
to per-
ceive that there was no imminent peril. The appellant argued that, for
him, fur-
ther surgery did amount to imminent peril. It was not reasonable for the
appellant to form this belief, particularly when better pain management
was
available.
39
The second requirement for the necessity defence is that the accused had
no
reasonable legal alternative to breaking the law. In this case, there
is no air of
reality to the proposition that the appellant ad no reasonable legal alternative
to
killing his daughter. He had at least one reasonable legal alternative:
he could
have struggled on, with what was unquestionably a difficult situation,
by helping
Tracy to live and by minimizing her pain as much as possible. The appellant
might have done so by using a feeding tube to improve her health and allow
her
to take more effective pain medication, or he might have relied
on the group
home that Tracy stayed at just before her death. The appellant may well
have
thought the prospect of struggling on unbearably sad and demanding. It
was a
human response that this alternative was unappealing. But it was a reasonable
legal alternative
that the law requires a person to pursue before he can claim the
defence of necessity. The appellant was aware of this alternative but
rejected it.
40 The third requirement for the necessity defence
is proportionality; it requires
the trial judge to consider, as a question of law rather than fact, whether
the
harm avoided was proportionate to the harm inflicted. It is difficult,
at the con-
ceptual level, to imagine a circumstance in which the proportionality
require-
ment could be met for a homicide. We leave open, if and until it arises,
the
question of whether the proportionality requirement could be met in a
homicide
situation. In England, the defence of necessity is probably not available
for
homicide: R. v. Howe, [1987] 1 A.C. 417 (U.K. H.L.), at pp. 453
and 429; Smith
and Hogan, Criminal Law (9th ed. 1999), at pp. 249-51. The famous case
of R.
v. Dudley (1884), 14 Q.B.D. 273 (Eng. Q.B.), involving cannibalism
on the high
seas, is often cited as establishing the unavailability of the defence
of necessity
for homicide, although the case is not conclusive: see Card, Cross and
Jones,
Criminal Law (12th ed. 1992), at p. 352; Smith and Hogan, supra, at pp.
249
and 251. The Law Reform Commission of Canada has suggested the defence
should not be available for a person who intentionally kills or seriously
harms
another person: Report on Recodifying Criminal Law (1987), at p. 36. American
jurisdictions are divided on this question, with a number of them denying
the
necessity defence for murder: P. H. Robinson, Criminal Law Defenses (1984),
vol. 2, at pp. 63-65; see also United States v. Holmes, 26 f. Cas.
360 (U.S. Pa.,
1842) (No. 15,383). The American Model penal Code proposes that the defence
of necessity would be available for homicide: American Law Institute,
Model
Penal Code and Commentaries (1985), at & 3.02, pp. 14-15; see also
W.R.
LaFave and A. W. Scott, Substantive Criminal Law (1986), col. 1, at p.
634.
41 Assuming for the sake of analysis only that
necessity could provide a de-
fence to homicide, there would have to be a harm that was seriously comparable
in gravity to death (the harm inflicted). In this case, there was no risk
of such
harm. The "harm avoided" in the appellant's situation was, compared
to death,
completely disproportionate. 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.
42 We
conclude that there was no air of reality to any of the three requirements
for necessity. As noted earlier, if the trial judge concludes that even
one of the
requirements had no air of reality, the defence should not be left to
the jury.
Here, the trial judge was correct to remove the defence from the jury.
In consid-
ering the defence of necessity, we must remain aware of the need to respect
the
life, dignity and equality of all the individuals affected by the act
in question.
The fact that the victim in this case was disabled rather than able-bodied
does
not reflect our conclusion that the three requirements for the defence
of necessity
had no air of reality here.
(2) The Removal of the Defence of Necessity After Counsel's Final Addresses
43 Given
that the trial judge was correct in removing this defence from the jury,
There remains the argument that the timing of the trial judge's ruling
on necessity
Rendered the trial unfair.
44 After
the evidence was led and immediately prior to counsel addressing the
jury, defence counsel requested a ruling on the availability of the defence
of
necessity. He had prepared two versions of his address to the jury. One
raised
necessity; the other did not. The trial judge's ruling would determine
which ver-
sion he would use. The trial judge, however, indicated that he had not
decided
whether the defence of necessity was available. He requested counsel to
proceed
with their closing submissions, telling them that he would rule on necessity
after
those submissions. He later ruled that the defence of necessity was not
available.
45 The
appellant that this approach violated his right to a fair trial, as
guaranteed by s. 7 of the Charter. He states that he did not know the
case he had
to meet. He asks, what if he had made submissions on necessity that were
later
withdrawn by the trial judge, or abstained from making such submissions
only
to discover that the jury was entitled to consider the defence? The result
in either
case, he submits, is unfair.
46
In most cases, the trial judge will be able to rule on the availability
of a
defence before counsel begin their closing addresses. But that does not
mean
that the trial is unfair where the trial judge delays his ruling. In the
circum-
stances of this case, we conclude that the fairness of the trial was not
affected.
47
The "case to meet" principle is a component of the accused's
constitutional
right to make full answer and defence. It means that an accused has the
right to
know the case he must meet before answering the Crown's case: R. v.
Under-
wood (1997), [1998] 1 S.C.R. 77 (S.C.C.), at para. 6; R. v. Rose,
[1998] 3 S.C.R.
262 (S.C.R.), per Cory, Iacobucci and Bastarache JJ., at para. 102. The
rationale
behind this principle is that the accused, before embarking on his defence,
should be able to assume that the Crown has called all the evidence it
will rely
on to establish guilt. Both Underwood and Rose affirm this principle,
but do not
require all ruling by the trial judge to take place prior to counsel addressing
the
jury. Underwood and Rose deal with the accused person's right to respond
to the
Crown, not a right to reply to the trial judge. (In Underwood, the issue
arose in
the context of a judge's ruling, but the concern was that the Crown would
lead
additional evidence ---- in that case, the accused's criminal record.)
As such,
there is no broad right to have all rulings on the availability of defences
take
place prior to closing submissions. The right to respond to the Crown's
case is
not equivalent to a right to respond to the trial judge's rulings.
48 In the absence of a constitutional right, we must still consider whether
the
procedure employed by a trial judge led to an unfair trial.
49 The Court of Appeal concluded, at p. 205, that
"it might have been better" to
rule on the availability of the necessity defence prior to counsel addressing
the
jury. The decision should not have been a difficult one, since not one
of the
three requirements for necessity had an air of reality to it.
50 Nonetheless,
while the trial judge's approach was imperfect, the benchmark
for measuring trial fairness is not perfection. The critical question
is whether the
trial judge's approach rendered the appellant's trial unfair. The inquiry
is neces-
sarily specific to the facts of the case under consideration; the determination
of
whether the timing of a particular ruling rendered a trial unfair must
be made on
a case-by-case basis.
51 We
are of the view that, on the facts of this case, the timing of the removal
of the necessity defence did not render the appellant's trial unfair.
The appellant
relies on Underwood, to argue that he was denied the ability to make an
informed
tactical decision. In Underwood, the trial judge deferred a ruling on
the admissi-
bility of an accused person's criminal record until after he had begun
testifying.
The accused had to decide whether to testify without knowing if his criminal
record would be admissible. He was forced into an untenable position,
in which
he had to gamble on a decision without any ability to mitigate the damage
if he
lost his gamble.
52 The
situation in this appeal differs from Underwood in two ways. First, the
nature of the interest is not comparable: Underwood had to make an uninformed
decision that would see him irrevocably surrender his Charter right not
to be
compelled to testify, while the appellant faced only a tactical decision
as to how
to present an unlikely defence. The second difference between the cases
lies in
the fact that in Underwood, the accused could not anticipate or mitigate
a sur-
prise ruling, whereas in this case the appellant could, and did, anticipate
and
mitigate the withdrawal of the defence of necessity. In fact, Mr. Latimer's
trial
counsel explained to the jury in his closing remarks that the trial judge
could
rule that certain issues ---- including the defence of necessity ----
had to be with-
drawn from the jury's consideration.
53 It was hardly a surprise that the trial judge
eventually removed the defence
of necessity. The decision did not ambush the appellant, nor should it
have
caught him unaware. The trial judge in the first Latimer case had removed
the
defence, and the Court of Appeal in Latimer (no.1), supra, at pp. 512
and 520,
unanimously agreed. The ruling was obvious: there was no air of reality
to even
one of the three elements for necessity. In discussing his decision to
delay
ruling on necessity until after closing addresses, the tenor of the trial
judge's
comments makes it apparent that he is highly skeptical that the defence
was
available. We are of the view that the surprise here, if any, was minimal,
and we
fail to see the prejudice. While it is customary and in most instances
preferable
for the trial judge to rule on the availability of a defence prior to
closing ad-
dresses to the jury, it cannot be said that the failure to do so here
resulted in an
unfair trial.
54 The
appellant also argues that the manner in which the trial judge removed
the defence of necessity was unfair. We disagree. If anything, the trial
judge's
treatment of the defence of necessity gave it greater credibility than
deserved on
the facts. While the trial judge did explain to the jury that the defence
of neces-
sity was unavailable, he appeared reluctant to remove the defence. He
explained
how "the law" defines necessity, and he was clear that he had
no choice; his
ruling was required by "the courts" as "a matter of law".
The trial judge's expla-
nation as to why the defence of necessity was not available did not portray
the
appellant in an unsympathetic manner, and in fact the trial judge did
not even
touch on the requirement of proportionality in removing the defence. Conse-
quently, in the circumstances of this case, it cannot be concluded that
the trial
judge seriously undermined the appellant's closing submissions.
55 We
similarly reject the appellant's submission that the trial judge "took
sides" or became "an advocate for the Crown", as there
is no support in the
record for this suggestion. The trial judge explicitly said that he agreed
with the
Crown's argument as to the unavailability of the necessity defence, but
that fact
alone does not transform him into an ally of the Crown and it does not
constitute
bias, particularly when the Crown's position was correct and no other
choice
was open to the trial judge.
56 The
assessment of trial fairness is specific to the facts of the particular
case.
In another case, a trial judge's removal of a defence ---- might render
the trial unfair,
But that is not the case here.
(3) Jury Nullification
57 The
term "jury nullification" refers to that rare situation where
a jury know-
ingly chooses not to apply the law and acquits a defendant regardless
of the
strength of the evidence against him. Jury nullification is an unusual
concept
within the criminal law, since it effectively acknowledges that it may
occur that
the jury elects in the rarest of cases not to apply the law. The explanation
seems
to be that on some occasions, oppression will result either from a harsh
law or
from a harsh application of a law.
58 This
Court has referred to the jury's power to nullify as "the citizen's
ulti-
mate protection against oppressive laws and the oppressive enforcement
of the
law" and it has characterized the jury nullification power as a "safety
valve" for
exceptional cases: R. v. Morgentaler, [1988] 1 S.C.R. 30 (S.C.C.)
("Morgentaler
(No. 5) (1988)"), at pp. 78-79. At the same time, however, Dickson
C.J. warned
that "recognizing this reality [that a jury may nullify] is a far
cry from sug-
gesting that counsel may encourage a jury to ignore a law they do not
support or
tell a jury that it has a right to do so" (emphasis in original).
59 The
appellant effectively makes two arguments, one specific and one gen-
eral. His specific argument is that the trial judge interfered with the
jury's ability
to nullify by implying that the jury could offer input on sentencing.
His general
argument is that an accused person must have some right to a jury that
is more
likely to nullify. We will consider each argument in turn.
60 The
appellant submits that his trial was unfair because of what he character-
izes as the trial judge's misleading answer to the jury's inquiry as to
whether it
could offer input on sentencing. In the course of its deliberations, the
jury sent
the trial judge a note inquiring, in part, whether it could offer any
input into
sentencing. The trial judge was clear n reply that the jury was not to
concern
itself with the matter of penalty, but should focus solely on the question
of guilt.
the trial judge added, "it may be that later on, once you have reached
a verdict,
you ---- we will have some discussions about that [penalty]".
61 The
appellant argues that the trial judge ought to have clarified his "mislead-
ing" suggestion that the jury could influence the penalty by explicitly
telling the
jury of the mandatory minimum sentence of life without parole for 10 years.
62 While
the practice varies in other jurisdictions, the rule in Canada is that
guilt is for the jury to determine, while sentencing is left to the trial
judge. That
long-standing approach is sensible as a trial judge will obviously have
more
knowledge on both the acceptable range of sentences for the particular
offence
and the principles of sentencing. The jury's role is to determine on the
facts
whether the evidence establishes guilt. There is no reason to depart from
the
general rule.
63
It may seem odd that the jury, without knowing the penalty, could be blind
to the consequences of its conclusions, but that fact is both appropriate
and de-
sirable when one takes into account the risk that the jury could be influenced
----
whether towards acquitting or convicting ---- on the basis of the sentence.
That
logic applies with the same force when the prescribed penalty is a statutory
min-
imum. The fact that a convicted person will be subject to a pre-designated
mini-
mum sentence should not influence the jury's consideration of the question
of
guilt. The appellant suggests that the jury was less likely to nullify
because it
was not explicitly told of the mandatory minimum sentence. The question
of
whether the jury would have been more likely to acquit if informed of
the
mandatory minimum sentence ---- however interesting its speculation may
be ----
cannot be the basis for a requirement that the jury be informed of the
penalty
consequent on conviction.
64 The argument advanced by the appellant is that
the trial judge should have
Ruled on the availability of the necessity defence at the usual time in
the trial,
that is before counsel's jury addresses. In addition, the appellant submits,
the
trial judge ought to have explicitly told the jury it had no ability to
determine
sentence. If that had occurred, the jury would have had more time to dwell
on
what the appellant argues are the most ameliorating circumstances of the
appel-
ant's actions; this, coupled with the mandatory life sentence, might have
led to
jury nullification. At a minimum, it is argued, the jury would have had
more
time to think about it. The argument fails.
65 An
accused is entitled to a fair trial, including the presumption of innocence,
the duty of the Crown to prove guilt beyond a reasonable doubt, and the
ability
to make full answer and defence. The accused is not entitled to a trial
that in-
creases the possibility of jury nullification. If the trial of the accused
has not
been unfair and no miscarriage of justice has occurred, the accused cannot
suc-
ceed on an argument that due to some departure from the norm by the trial
judge, his chances of jury nullification are lessened. This point is treated
in fur-
ther detail below.
66
The appellant argues that the jury was misled into believing it could
make a
Recommendation on sentence. The trial judge might have confined himself
to
Telling the jury not to concern itself with the penalty. But his vague
suggestion
("it may be that later on ---- we will have some discussions about
that") cannot be
taken to have seriously misled the jury into believing that it would determine
the
sentence. In fact, the jury could and did offer its input on sentence
by virtue of s.
745.2 of the Criminal Code, which requires a trial judge to ask the jury
if it
wishes to recommend more than the 10-year minimum before parole eligibility
for second degree murder. It seems likely that the trial judge had this
provision
in mind when he suggested the jury could "have some discussions"
about the
sentence. Read in the context of the trial judge's repeated insistence
that the jury
focus on the issue of guilt, not penalty, it is clear that his comment
about dis-
cussing the sentence later on did not render the trial unfair.
67 We
also reject the argument that the trial judge could have corrected any
"misleading" suggestion by informing the jury of the mandatory
minimum sen-
tence; to do so might have been an error. (See R. V. McLean, [1933]
S.C.R. 688
(S.C.R.), at p. 693; R. v. Cracknell (1931), 56 C.C.C. 190 (Ont. C.A.),
at pp. 192
and 194; R.. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.), at p.
482) The
trial judge's slightly awkward but short response to the jury's inquiry
did not
prejudice the appellant.
68 The
appellant's second argument is a broad one, that the accused person has
some right to jury nullification. How could ther be any such "right"?
As a mat-
ter of logic and principle, the law cannot encourage jury nullification.
When it
occurs, it man be appropriate to acknowledge that occurrence. But, to
echo the
words of Morgentaler (No. 5) (1988), saying that jury nullification may
occur is
distant from deliberately allowing the defence to argue it before a jury
or letting
a judge raise the possibility of nullification in his or her instructions
to the jury.
69 The
appellant concedes as much, but advances some right, on the part of the
Accused person, to a jury whose power to nullify is not undermined. He
suggests
The right to a fair trial under s. 7 of the Charter encompasses this entitlement.
The appellant submits that there is a jury power to nullify, and it would
be un-
Constitutional to undermine that power.
70 We
reject that proposition. The appellant cannot legitimately rely on a broad
right to jury nullification. In this case, the trial die not become unfair
simply
because the trial judge undermined the jury's de facto power to nullify.
In most
if not all cases, jury nullification will not be a valid factor in analyzing
trial
fairness for the accused. Guarding against jury nullification is a desirable
and
legitimate exercise for a trial judge; in fact a judge is required to
take steps to
ensure that the jury will apply the law properly. See R. v. Shipley (1784),
4
Dougl. 73, 99 E.R. 774 (Eng. K.B.), at p. 824, cited with approval by
Dickson
C.J. in Morgentaler (No.5) (1988), at p. 78. Steps taken by a trial judge
to guard
against jury nullification should not, on that basis alone, prejudice
the accused
person.
71 We
conclude that the appellant's conviction must be upheld.
B. Appeal Against Sentence
72 The appellant also seeks a constitutional exemption
from the mandatory
Minimum sentence for second degree murder on the basis that such a sentence
amounts to cruel and unusual punishment in the circumstances of this case.
This
aspect of Mr. Latimer's appeal centres on the following constitutional
questions
stated by Lamer C.J. on September 22, 1999:
1. Was
the learned trial Justice correct in finding that in this specific
case,
the mandatory minimum sentence prescribed by ss. 235 and
745(c)
of the Criminal Code would be cruel and unusual punishment
in
violation of s. 12 of the Canadian Charter of fights and
Freedoms?
2.
If the answer to Question 1 is "yes", can ss. 235 and 745(c)
of the
Criminal
Code be justified in this case by s. 1 of the Canadian Char-
ter
of Rights and Freedoms?
3.
If the answer to Question 2 is "no", did the learned trial Justice
err in
granting
a constitutional exemption rather than declaring the sections
inoperative"
(1) Review of relevant Principles
73 This
Court first interpreted s. 12 of the Charter in R. v. Smith, [1987]
1
S.C.R. 1045 (S.C.C.), were Lamer J. (as he then was) adopted the standard
articulated by Laskin C.J. in R. v. Miller (1976), [1977] 2 S.C.R. 680
(S.C.C.).
as the starting point for the s. 12 scrutiny. Specifically, Lamer J. stated
at p,
1072:
The
criterion which must be applied I order to determine whether a punish-
ment is cruel and unusual
within the meaning of s. 12 of the Charter is, to
use the words of Laskin
C.J. in Miller and Crokriel, supra. At p, 688.
"whether the punishment
prescribed is so excessive as to outrage standards
of decency". In other
words, though the state may impose punishment, the
effect of that punishment
must not be grossly disproportionate to what would
have been appropriate.
74
Lamer J. went on to set out the nature and elements of the s. 12 gross
dispro-
portionality analysis as follows at p. 1073:
In
assessing whether a sentence is grossly disproportionate, the Court must
First consider the gravity
of the offence, the personal characteristics of the
Offender and the particular
circumstances of the case in order to determine
What range of sentences
would have been appropriate to punish, rehabilitate
Or deter this particular
offender or to protect the public from this particular
Offender.
This test was subsequently
affirmed and applied in R. v. L. (T.P.), [1987] 2
S.C.R. 309 (S.C.C.), R. v. Luxton, [1990] 2 S.C.R. 711 (S.C.C.),
Steele v.
Mountain Institution, [1990] 2 S.C.R. 1385 (S.C.C.), R. v. Goltz,
[1991] 3 S.C.R.
485 (S.C.C.), and most recently in R. v. Morrisey, [2000] 2 S.C.R. 90,
2000 SCC
39 (S.C.C.)
75 In Goltz, supra, at p. 500, and Morrisey, supra,
at paras. 27-28, Gonthier J.
clarified that, beyond the Smith factors outlined above, a full contextual
under-
standing of the sentencing provision also requires a consideration of
the actual
effect of the punishment on the individual, the penological goals and
sentencing
principles upon which the sentence is fashioned, the existence of valid
alterna-
tives to the punishment imposed, and a comparison of punishments imposed
for
other crimes in the same jurisdiction. However, not all of these matters
will be
relevant to the analysis and none of these standing alone will be decisive
to a
determination of gross disproportionality.
76 While
the test is one that attributes a great deal of weight to individual cir-
cumstances, it should also be stressed that in weighing the s. 12 considerations
the court must also consider and defer to the valid legislative objectives
underly-
ing the criminal law responsibilities of Parliament (Goltz, supra, at
p. 503). In
this regard, Cory J., for the Court in Steel v. Mountain Institution,
supra, at p.
1417, stated:
It will only be on rare
and unique occasions that a court will find a sentence
So grossly disproportionate
that it violates the provisions of s. 12 of the
Charter. The test for
determining whether a sentence is disproportionately
Long is very properly
stringent and demanding. A lesser test would tend to
Trivialize the Charter.
[Emphasis added.]
77 In emphasizing the deferential standard for
the s. 12 review, this Court has
Repeatedly adopted the following passage from R. V. Guiller (1985), 48
C.R. (3d)
226 (Ont. Dist. Ct.), at p. 238, per Borins Dist. Ct. J. (cited at Smith,
supra, at p.
1070; Luxton, supra, at p. 725; Goltz, supra, at p. 505):
It
is not for the court to pass on the wisdom of Parliament with respect
to the
gravity of various offences
and the range of penalties which may be imposed
upon those found guilty
of committing the offences. Parliament has broad
discretion in proscribing
conduct as criminal and in determining proper pun-
ishment. While the final
judgement as to whether a punishment exceeds con-
stitutional limits set
by the Charter is properly a judicial function, the court
should be reluctant to
interfere with the considered views of Parliament and
then only in the clearest
of cases where the punishment prescribed is so ex-
cessive when compared
with the punishment prescribed for other offences as
to outrage standards of
decency.
78 Finally,
before moving on to the application of these principles to this ap-
peal, we note that there are two aspects to the s. 12 analysis (Goltz,
supra, at p.
505). Specifically, the first aspect of the s. 12 analysis centres on
the individual
circumstances as set out above and is commonly known as the "particularized
inquiry". If the particularized inquiry reveals that a challenged
provision im-
poses a sentence that is grossly disproportionate in those particular
circum-
stances, the a prima facie violation of s. 12 is established and will
be examined
for justifiability under s. 1 of the Charter. If, however, the particular
facts of the
case do not give rise to such a finding "there may remain …
a Charter challenge
or constitutional question as to the validity of a statutory provision
on grounds
of gross disproportionality as evidenced in reasonably hypothetical circum-
stances" (Goltz, supra, at pp. 505-6 (emphasis in original)).
79 As
is reflected in the constitutional questions before the Court, this appeal
is
restricted to a consideration of the particularized inquiry. In substance,
the ap-
pellant concedes the general constitutionality of ss. 235 and 745(c) as
these sec-
tions are applied in combination. Mr. Latimer's challenge to their overall
consti-
tutioality was put forward in the alternative but was not pressed forcefully
since no substantive argument on point was offered. Furthermore, no reasonable
hypothetical situation was presented for the Court' consideration. In
short, the
appellant's arguments wholly centred on the effect of the sentence in
this spe-
cific case on this specific offender. Consequently, only the individual
remedy
sought by the appellant, namely a constitutional exemption, is at issue.
(2) Application of Section 12 Principles
80 The first factor to consider is the gravity
of the offence. Recently, Gonthier
J., in Morrisey, supra, provided important guidance for the proper
assessment of
the gravity of an offence for the purposes of a s. 12 analysis. Specifically,
Gonthier J. noted, at para. 35, that an assessment of the gravity of the
offence
requires an understanding of (I) The character of the offender's actions,
and (ii)
the consequences of those actions.
81 Certainly,
in this case one cannot escape the conclusion the Mr. Latiner's
actions resulted in the most serious of all possible consequences, namely,
the
death of the victim, Tracy Latimer.
82 In
considering the character of Mr. Latimer's actions, we are directed to
an
assessment of the criminal fault requirement on mens rea element of the
offence
rather than the offender's motive or general state of mind (Morrisey,
supra, at
para. 36). We attach a greater degree of criminal responsibility or moral
blame-
worthiness to conduct where the accused knowingly broke the law (Morrisey,
supra, at para. 36; R. v. Martineau, [1990] 2 S.C.R. 633 (S.C.C.),
at p. 645). In
this case, the mens rea requirement for second degree murder is subjective
fore-
sight of death: the most serious level of moral blameworthiness (Luxton,
supra,
at p. 742).
83
Parliament has classified murder offences into first and second degree
based
on its perception of relative levels of moral blameworthiness. Parliament
has
also provided for differential treatment between them in sentencing, but
only in
respect of parole eligibility. As noted by Lamer C.J. in Luxton, supra,
at pp.
720-21:
I
must also reiterate that what we are speaking of here is a classification
scheme for the purposes
of sentencing. The distinction between first and sec-
ond degree murder only
comes into play when it has firs been proven be-
yond a reasonable doubt
that the offender is guilty of murder, that is, that he
or she had subjective
foresight of death: R. v. Martineau, handed down this
day. There is no doubt
that a sentencing scheme must exhibit a proportional-
ity to the seriousness
of the offence, or to put it another way, there must be a
gradation of punishments
according to the malignity of the offences. [Em-
phasis added.]
84
However, even if the gravity of second degree murder is reduced in compari-
son to first degree murder, it cannot be denied that second degree murder
is an
offence accompanied by an extremely high degree of criminal culpability.
In this
case, therefore, the gravest possible consequences resulted from an act
of the
most serious and morally blameworthy intentionality. It is against this
reality
that we must weight the other contextual factors, including and especially
the
particular circumstances of the offender and the offence.
85
Turning to the characteristics of the offender and the particular circum-
Stances of the offence we must consider the existence of any aggravating
and
Mitigating circumstances (Morrisey, supra, at para. 38; Gotz, supra, at
pp. 512-
13). Specifically, any aggravating circumstances must be weighed against
any
mitigating circumstances. In this regard, it is possible that prior to
gauging the
sentence's appropriateness in light of an appreciation of the particular
circum-
stances weighed against the gravity of the offence, the mitigating and
aggravat-
ing circumstances might well cancel out their ultimate impact (Morrisey,
supra,
at para. 40). Indeed, this is what occurs in this case. On the one hand,
we must
give due consideration to 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. On the other hand, we
are
mindful of Mr. Latimer's 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. Considered together we cannot find that the
personal
characteristics and particular circumstances of this case displace the
serious
gravity of this offence.
86
Finally, this sentence is consistent with a number of valid penological
goals
and sentencing principles. Although we would agree that in this case the
sen-
tencing principles of rehabilitation, specific deterrence and protection
are not
triggered for consideration, we are mindful of the important roe that
the
mandatory minimum sentence plays in denouncing murder. Denunciation of
un-
lawful conduct is one of the objectives of sentencing recognized in s.
718 of the
Criminal Code. As noted by the Court in R. v. M. (C.A.), [1996] 1 S.C.R.
500
(S.C.C.), at para. 81:
The objective of denunciation
mandates that a sentence should communicate
society's condemnation
of that particular offender's conduct. In short, a sen-
tence with a denunciatory
element represents a symbolic, collective state-
ment that the offender's
conduct should be punished for encroaching on our
society's basic code of
values as enshrined within our substantive criminal
law. [Emphasis in original.]
Furthermore, denunciation
becomes much more important in the consideration
of sentencing in cases where there is a "high degree of planning
and premedita-
tion, and where the offence and its consequences are highly publicized,
[so that]
like-minded individuals may well be deterred by severe sentences":
R. v.
Mulvahill (1993), 21 B.C.A.C. 296 (B.C.C.A.), at p. 300. This is particularly
so
where the victim is a vulnerable person with respect to age, disability,
or other
similar factors.
87
In summary, the minimum mandatory sentence is not grossly disproportion-
ate in this case. We cannot find that any aspect of the particular circumstances
of
the case or the offender diminishes the degree of criminal responsibility
borne
by Mr. Latimer. In addition, although not free of debate, the sentence
is not out
of step with valid penological goals or sentencing principles. The legislative
classification and treatment of this offender meets the requisite standard
of pro-
portionality (L. (T.P.), supra, at p. 339). Where there is no violation
of Mr. La-
timer's s. 12 right there is no basis for granting a constitutional exemption.
Having said all this,
we wish to point out that this appeal raises a number of
issues that are worthy of emphasis. The sentencing provisions for second
degree
murder include both ss. 235 and 745(c). Applied in combination these provi-
sions result in a
sentence that is hybrid in that it provides for both a mandatory
life sentence and a minimum term of incarceration. The choice is Parliament's
on the use of minimum sentences, though considerable difference of opinion
contiues on the wisdom of employing minimum sentences from a criminal
law
policy or penological point of view.
89
It is also worth referring again to the royal prerogative of mercy that
is found
In s. 749 of the Criminal Code, which provides "[n]othing in this
Act in any
Manner limits or affects Her Majesty's royal prerogative of mercy".
As was
Pointed out by Sopinka J. R. v. Sarson, [1996] 2 S.C.R. 223 (S.C.C.),
at para.
51, albeit in a different context:
Where
the courts are unable to provide an appropriate remedy in cases that
the executive sees as
unjust imprisonment, the executive is permitted to dis-
pense "mercy",
and order the release of the offender. The royal prerogative
of mercy is the only potential
remedy for persons who have exhausted their
rights of appeal and are
unable to show that their sentence fails to accord
with the charter.
90 But
the prerogative is a matter for the executive, not the courts. The execu-
tive will undoubtedly, if it chooses to consider the matter, examine all
of the
underlying circumstances surrounding the tragedy of Tracy Latimer that
took
place on October 24, 1993, some seven years ago. Since that time Mr. Latimer
has undergone two trials and two appeals to the Court of Appeal for Saskatche-
wan and this Court, with attendant publicity and consequential agony for
him
and his family.
V.I. Disposition
Mr.
Latimer's appeals against conviction and sentence are dismissed. The
answers to the constitutional
questions are as follow:
1.
Was the learned trial Justice correct in finding
that in this specific
case,
the mandatory minimum sentence prescribed by ss. 235 and
745(c)
of the Criminal Code would be cruel and unusual punishment
in
violation of s. 12 of the Canadian Charter of Rights and
Freedoms?
No.
2. If the answer to Question
1 is "yes", can ss. 235 and 745(c) of the
criminal
Code be justified in this case by s. 1 of the Canadian char-
ter
of Rights ond Freedom?
It
is not necessary to answer this question.
3. If the answer to Question
2 is "no", did the learned trial Justice err in
granting
a constitutional exemption rather than declaring the sections
inoperative?
It is not necessary to answer this question.
Appeal dismissed.
