R. v. Latimer (R.W.), (1995) 134 Sask.R. 1 (CA)

• Judge: Bayda, C.J.S., Tallis and Sherstobitoff, JJ.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: July 18, 1995
• Jurisdiction: Saskatchewan
• Citations: (1995), 134 Sask.R. 1 (CA)

R. v. Latimer (R.W.) (1995), 134 Sask.R. 1 (CA);

    101 W.A.C. 1

MLB headnote and full text

Robert Latimer (appellant) v. Her Majesty the Queen (respondent)

(Appeal File No. C.A. 6515)

Indexed As: R. v. Latimer (R.W.)

Saskatchewan Court of Appeal

Bayda, C.J.S., Tallis and Sherstobitoff, JJ.A.

July 18, 1995.

Summary:

Latimer was convicted of second degree murder for the killing of his 12 year old daughter who suffered from severe cerebral palsy. He was sentenced to life imprison­ment without eligibility for parole for 10 years. Latimer appealed against the convic­tion and sentence.

The Saskatchewan Court of Appeal, Bayda, C.J.S., dissenting with respect to the sentence appeal, dismissed the appeal.

Editor's Note: For previous cases involving this accused see 124 Sask.R. 180, 128 Sask.R. 63; 85 W.A.C. 63 and 128 Sask.R. 195; 85 W.A.C. 195.

Civil Rights - Topic 3151

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Imprisonment and parole - [See Civil Rights - Topic 3829 ].

Civil Rights - Topic 3603

Detention and imprisonment - Detention - What constitutes arbitrary detention - Latimer's daughter, who suffered from cerebral palsy, died of carbon monoxide poisoning while in his care - Police went to Latimer's farm, told him that he was being detained for investigation into his daughter's death and advised him of his right to counsel - Latimer accompanied them to the detachment where he con­fessed and was told that he was being held for murder - He was subsequently con­victed of second degree murder - Latimer argued that the trial judge erred in admit­ting the confession because he was arbi­trarily detained and inadequately advised of the reasons for his detention in violation of the Charter, ss. 9 and 10(a) - The Sas­katchewan Court of Appeal rejected the argument, affirming the trial judge's find­ing that the police had actually arrested Latimer at his farm and that the arrest was lawful - See paragraphs 45 to 47.

Civil Rights - Topic 3608

Detention and imprisonment - Detention - Right to be informed of reasons for - [See Civil Rights - Topic 3603 ].

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Mandatory minimum sen­tences - Latimer was convicted of second degree murder for the killing of his 12 year old daughter and was sentenced to the mandatory minimum sentence of life im­prisonment without parole eligibility for 10 years - The child, who died from carbon monoxide poisoning, suffered from severe cerebral palsy and was bedridden and in continual pain - Latimer argued that the sentence and period of parole ineligibility in the circumstances were contrary to the principles of fundamental justice and con­stituted cruel and unusual punishment in violation of the Charter, ss. 7 and 12, and that the appropriate remedy was to grant a consti­tutional exemption under s. 24 - The Saskatchewan Court of Appeal, Bayda, C.J.S., dissenting, dismissed the application for a constitutional exemption and affirmed the sentence - See paragraphs 69 to 82.

Civil Rights - Topic 3830

Cruel and unusual treatment or punishment - What constitutes cruel and unusual punishment - Circumstances not constitut­ing - [See Civil Rights - Topic 3829 ].

Civil Rights - Topic 4604

Right to counsel - Denial of or interfer­ence with - What constitutes - Police detained Latimer for investigation into his daughter's death and advised him of his right to counsel, including the fact that Legal Aid duty counsel was available without charge and that they could explain the Legal Aid plan to him - After again being asked if he wished to contact coun­sel, Latimer declined and confessed - He was subsequently convicted of second degree murder - Latimer argued that the trial judge erred in admitting the confes­sion because he was not properly advised of the informational component concerning access to Legal Aid - The Saskatchewan Court of Appeal affirmed that Latimer's s. 10(b) Charter rights were not violated and that even if there was an infringement, ad­mission of the impugned evidence would not bring the administration of justice into disrepute - See paragraphs 21 to 42 and 48 to 51.

Civil Rights - Topic 4609

Right to counsel - Duty of authority to notify accused or explain right to counsel - Latimer appealed his second degree murder conviction, arguing that the trial judge erred in admitting his confession because he was not properly advised of the informational component concerning ac­cess to Legal Aid - Specifically, he was not advised of the existence of a toll-free number by which free legal advice could be accessed - The Saskatchewan Court of Appeal stated that the omission to specifi­cally mention a toll-free number was not decisive considering all the circumstances surrounding the questioning - The infor­mation supplied by the officers was such that Latimer would understand that if he wished to contact a lawyer then steps would be taken to do so and that access to a telephone and number would be supplied - See paragraphs 38 to 41.

Civil Rights - Topic 4617.1

Right to counsel - Notice of - Sufficiency of - [See Civil Rights - Topic 4609 ].

Civil Rights - Topic 8368

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Exclusion of evidence - [See Civil Rights - Topic 4604 ].

Civil Rights - Topic 8380.8

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Statute deemed inapplicable (incl. doctrine of constitutional exemption) - [See Civil Rights - Topic 3829 ].

Civil Rights - Topic 8550

Canadian Charter of Rights and Freedoms - Interpretation - Particular words and phrases - Bring the administration of justice into disrepute - [See Civil Rights - Topic 4604 ].

Courts - Topic 11

Stare decisis - Authority of judicial deci­sions - Application of judgments - Pro­spective or retrospective - An accused contended that Supreme Court of Canada decisions in R. v. Bartle and companion cases established a requirement to advise of the existence of a toll-free number by which free legal advice could be accessed - In considering the accused's submission, the Saskatchewan Court of Appeal ac­cepted the Crown's argument that the Supreme Court of Canada decisions in Bartle and companion cases did not oper­ate retrospectively because the Supreme Court of Canada's judgment in R. v. Cobham, the operation of which was stayed for a period of 21 days, had the effect of staying all the companion cases decided at the same time - See paragraphs 43 and 44.

Criminal Law - Topic 203

Common law defences - Necessity - Latimer was convicted of second degree murder for the killing of his 12 year old daughter - The child suffered from severe cerebral palsy and was bedridden and in continual pain - Latimer claimed that he wanted to relieve his daughter's pain - He argued that the trial judge erred in failing to leave the defence of necessity as an issue for the jury to consider - The Sas­katchewan Court of Appeal held that the trial judge was correct in finding that there was no factual foundation for the defence of necessity - See paragraphs 52 to 58.

Criminal Law - Topic 4970

Appeals - Indictable offences - Powers of court of appeal - Receiving fresh evidence - General - Latimer was convicted of second degree murder for the killing of his 12 year old daughter and was sentenced to life imprisonment without eligibility for parole for 10 years - The child suffered from severe cerebral palsy and was bed­ridden and in continual pain - Latimer claimed that he wanted to relieve his daughter's pain - On appeal from sentence, Latimer sought leave to adduce fresh evidence of public support for his position, including a petition which was presented to the House of Commons and various newspaper articles - The Saskatchewan Court of Appeal refused to admit the evi­dence - See paragraph 68.

Criminal Law - Topic 5043

Appeals - Indictable offences - Dismissal of appeal if no prejudice, substantial wrong or miscarriage results - Where address by counsel inflammatory or in error - Latimer was convicted of second degree murder for the killing of his 12 year old daughter - The child suffered from severe cerebral palsy and was bedridden and in continual pain - On appeal, Latimer argued that Crown counsel made statements in his closing address to the jury that were in­flammatory and which implored the jury to convict Latimer of first degree murder - He contended that it was inappropriate to describe his conduct as "foul, callous, cold, calculating and not motivated by anything other than making his own life easier" - The Saskatchewan Court of Appeal re­jected the ground of appeal where the comments did not affect the fairness or the outcome of the trial - See paragraphs 60 to 63.

Criminal Law - Topic 5881

Sentence - Murder - [See Civil Rights - Topic 3829 ].

Police - Topic 3070

Powers - Arrest and detention - Arrest without warrant - Of person who has committed an indictable offence - [See Civil Rights - Topic 3603 ].

Cases Noticed:

R. v. Bartle (K.), [1994] 3 S.C.R. 173; 172 N.R. 1; 74 O.A.C. 161, consd. [para. 22].

R. v. Cobham, [1994] 3 S.C.R. 360; 172 N.R. 123; 157 A.R. 81; 77 W.A.C. 81, consd. [para. 22].

R. v. Harper, [1994] 3 S.C.R. 343; 172 N.R. 91; 97 Man.R.(2d) 1; 79 W.A.C. 1, consd. [para. 22].

R. v. Matheson (R.N.), [1994] 3 S.C.R. 328; 172 N.R. 108; 123 Nfld. & P.E.I.R. 271; 382 A.P.R. 271, refd to. [para. 22].

R. v. Pozniak (W.), [1994] 3 S.C.R. 310; 172 N.R. 72; 74 O.A.C. 232, refd to. [para. 22].

R. v. Prosper, [1994] 3 S.C.R. 236; 172 N.R. 161; 133 N.S.R.(2d) 321; 380 A.P.R. 321, refd to. [para. 22].

R. v. Brydges, [1990] 1 S.C.R. 190; 103 N.R. 282; 104 A.R. 124, consd. [para. 32].

R. v. Grant (D.), [1993] 3 S.C.R. 223; 159 N.R. 161; 35 B.C.A.C. 1; 57 W.A.C. 1, consd. [para. 50].

R. v. Collins, [1987] 1 S.C.R. 265; 74 N.R. 276; 56 C.R.(3d) 193; [1987] 3 W.W.R. 699; 38 D.L.R.(4th) 508; 33 C.C.C.(3d) 1; 28 C.R.R. 122; 13 B.C.L.R.(2d) 1, refd to. [para. 51].

R. v. Jacoy, [1988] 2 S.C.R. 548; 89 N.R. 61, refd to. [para. 51].

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113; 13 D.L.R.(4th) 1; 14 C.C.C.(3d) 385, appld. [para. 53].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161, consd. [para. 70].

Rodriguez v. British Columbia (Attorney General) et al., [1993] 3 S.C.R. 519; 158 N.R. 1; 34 B.C.A.C. 1; 56 W.A.C. 1, refd to. [para. 78].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 90].

R. v. Lyons, [1987] 2 S.C.R. 309; 80 N.R. 161; 82 N.S.R.(2d) 271; 207 A.P.R. 271; 37 C.C.C.(3d) 1, refd to. [para. 90].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 8 C.R.(4th) 82, refd to. [para. 90].

R. v. Chief National Insurance Commissioner, [1981] Lloyd's Rep. 758 (Q.B.), refd to. [para. 113].

R. v. Brush, [1995] O.J. No. 656 (Prov. Div.), consd. [para. 136].

R. v. Palmer, [1980] 1 S.C.R. 759; 30 N.R. 181, refd to. [para. 154].

Danson v. Ontario (Attorney General), [1990] 2 S.C.R. 1086; 112 N.R. 362; 41 O.A.C. 250, refd to. [para. 154].

R. v. Danson - see Danson v. Ontario (Attorney General).

MacKay et al. v. Manitoba, [1989] 2 S.C.R. 357; 99 N.R. 116; 61 Man.R.(2d) 270, refd to. [para. 154].

Kindler v. Canada (Minister of Justice), [1991] 2 S.C.R. 779; 129 N.R. 81, refd to. [para. 154].

R. v. Johnson (1994), 31 C.R.(4th) 262 (Y.T.C.A.), refd to. [para. 154].

R. v. Oakes, [1986] 1 S.C.R. 103; 65 N.R. 87; 14 O.A.C. 335; 26 D.L.R.(4th) 200; 50 C.R.(3d) 1; 24 C.C.C.(3d) 321; 19 C.R.R. 308, refd to. [para. 166].

Symes v. Minister of National Revenue, [1993] 4 S.C.R. 695; 161 N.R. 243, refd to. [para. 166].

Canadian Broadcasting Corp. v. Dagenais et al. (1994), 175 N.R. 1; 76 O.A.C. 81; 94 C.C.C.(3d) 289 (S.C.C.), refd to. [para. 170].

Schachter v. Canada et al., [1992] 2 S.C.R. 679; 139 N.R. 1, refd to. [para. 174].

R. v. Big M Drug Mart Ltd., [1985] 1 S.C.R. 295; 58 N.R. 81; 60 A.R. 161; [1985] 3 W.W.R. 481; 18 C.C.C.(3d) 385; 18 D.L.R.(4th) 321; 37 Alta. L.R.(2d) 97; 85 C.L.L.C. 14,203; 13 C.R.R. 64, refd to. [para. 178].

R. v. Videoflicks Ltd. et al., [1986] 2 S.C.R. 713; 71 N.R. 161; 19 O.A.C. 239; 30 C.C.C.(3d) 385; 55 C.R.(3d) 193; 35 D.L.R.(4th) 1; 28 C.R.R. 1, refd to. [para. 178].

Edwards Books and Art Ltd. v. R. - see R. v. Videoflicks Ltd. et al.

R. v. Edwards Books and Art Ltd. - see R. v. Videoflicks Ltd. et al.

Royal College of Dental Surgeons (Ont.) et al. v. Rocket and Price, [1990] 2 S.C.R. 232; 111 N.R. 161; 40 O.A.C. 241, refd to. [para. 178].

Osborne, Millar and Barnhart et al. v. Canada (Treasury Board) et al., [1991] 2 S.C.R. 69; 125 N.R. 241, refd to. [para. 178].

R. v. Seaboyer and Gayme, [1991] 2 S.C.R. 577; 128 N.R. 81; 48 O.A.C. 81; 66 C.C.C.(3d) 321; 7 C.R.(4th) 117, refd to. [para. 178].

Southam Inc. v. Hunter, [1984] 2 S.C.R. 145; 55 N.R. 241; 55 A.R. 291; 9 C.R.R. 355; 14 C.C.C.(3d) 97; 41 C.R.(3d) 97; [1984] 6 W.W.R. 577; 33 Alta. L.R.(2d) 193; 27 B.L.R. 297; 84 D.T.C. 6467; 2 C.P.R.(3d) 1; 11 D.L.R.(4th) 641, refd to. [para. 178].

R. v. McGillivary (1991), 89 Sask.R. 289; 62 C.C.C.(3d) 407 (C.A.), refd to. [para. 180].

R. v. Chief, [1990] 1 W.W.R. 193 (Y.T.C.A.), refd to. [para. 180].

Nelles v. Ontario et al., [1989] 2 S.C.R. 170; 98 N.R. 321; 35 O.A.C. 161, refd to. [para. 192].

Statutes Noticed:

Canadian Charter of Rights and Freedoms, 1982, sect. 1 [para. 165 et seq.]; sect. 7 [para. 65 et seq.]; sect. 10(a), sect. 10(b) [para. 45 et seq.]; sect. 12 [para. 64 et seq.]; sect. 24(2) [para. 48 et seq.].

Criminal Code, R.S.C. 1985, c. C-46, sect. 235, sect. 742(b) [para. 69].

Authors and Works Noticed:

Canada, Special Senate Committee on Euthanasia and Assisted Suicide, Report (February 1994 to June 1995), p. 88 [para. 188].

Kuhse, H., and Singer, P., Doctor's Practices and Attitudes Regarding Voluntary Euthanasia (1988), 148 Med. J. Aus. 623, generally [para. 171].

Searles, Neil, A Study for Manitoba Association for Rights and Liberties (March 7, 1995), generally [para. 171].

Counsel:

Graeme Mitchell and C. Snell, Q.C., for the Crown;

M. Brayford and D. Shapiro, for the accused;

Grant Mitchell, for People in Equal Par­ticipation;

R. Richards, for Council of Canadians and Saskatchewan Voice of Handicapped.

This appeal was heard on February 23, 1995, by Bayda, C.J.S., Tallis and Sherstobitoff, JJ.A., of the Saskatchewan Court of Appeal.

The decision of the Court of Appeal was delivered on July 18, 1995, and the following opinions were filed:

Tallis, J.A. (Sherstobitoff, J.A., concur­ring) - see paragraphs 1 to 82;

Bayda, C.J.S., dissenting in part - see paragraphs 83 to 197.