R. v. Latimer (R.W.), (2001) 203 Sask.R. 1 (SCC)

• Judge: McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Binnie and Arbour, JJ.
• Court: Supreme Court (Canada)
• Case Date: January 18, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 203 Sask.R. 1 (SCC);2001 SCC 1;39 CR (5th) 1;48 WCB (2d) 279;AZ-50082362;[2001] 1 SCR 3;JE 2001-237;264 NR 99;[2001] 6 WWR 409;[2001] SCJ No 1 (QL);EYB 2001-21909;80 CRR (2d) 189;240 WAC 1;193 DLR (4th) 577;150 CCC (3d) 129;203 Sask R 1;[2001] ACS no 1

R. v. Latimer (R.W.) (2001), 203 Sask.R. 1 (SCC);

    240 W.A.C. 1

MLB headnote and full text

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2001] Sask.R. TBEd. JA.051

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 (interveners)

(No. 26980; 2001 SCC 1)

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

Supreme Court of Canada

McLachlin, C.J.C., L'Heureux-Dubé, Gonthier, Iacobucci, Major, Binnie and Arbour, JJ.

January 18, 2001.

Summary:

Latimer was convicted of second degree murder in connection with the death 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, in a decision reported at 134 Sask.R. 1; 101 W.A.C. 1, dismissed the appeal. Latimer appealed.

The Supreme Court of Canada, in a deci­sion reported at 207 N.R. 215; 152 Sask.R. 1; 140 W.A.C. 1, allowed the appeal and ordered a new trial.

Latimer was again convicted of second degree murder. He was sentenced to one year's imprisonment plus one year's proba­tion. Latimer appealed against conviction. The Crown appealed against sentence.

The Saskatchewan Court of Appeal, in a decision reported at 172 Sask.R. 161; 185 W.A.C. 161, dis­missed the conviction ap­peal. The court allowed the sentence appeal and imposed the mandatory sen­tence pursu­ant to ss. 235 and 745.2 of the Crimi­nal Code. Latimer appealed on three issues: (1) Did the trial judge mishandle the defence of necessity, resulting in an unfair trial? (2) Was the trial unfair because the trial judge misled the jury into believing it would have some input in sentencing? (3) Did the impo­sition of the mandatory minim­um sentence constitute cruel and unusual punishment?

The Supreme Court of Canada answered negatively to all three questions and 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 3126

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Fair hearing - What constitutes - [See second Criminal Law - Topic 4329 and Criminal Law - Topic 4357 ].

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - [See Criminal Law - Topic 4357 ].

Civil Rights - Topic 3829

Cruel and unusual treatment or punishment - What constitutes cruel and unusual pun­ishment - Mandatory minimum sen­tences -Latimer was convicted of the second degree murder of his 12 year old daughter - The child suf­fered from severe cerebral palsy and was in continual pain - Latimer claimed that he wanted to alleviate her pain - He was sentenced to the mini­mum mandatory 10 year sentence - He appealed, asserting that the sentence was cruel and unusual punishment (Charter, s. 12) - The Supreme Court of Canada dis­missed the sentence appeal - The manda­tory sentence was not grossly dispropor­tionate - The particular circumstances of the case or offender did not diminish the degree of criminal responsibility - Fur­thermore, the sentence was not out of step with valid penological goals or sentencing principles -The court added that the prerogative of mercy was a matter for the executive, not the courts - See paragraphs 72 to 90.

Civil Rights - Topic 3830

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

Criminal Law - Topic 203

Common law defences - Necessity - Lati­mer's 12 year old daughter suf­fered from severe cerebral palsy, was bedridden and in continual pain - She had undergone several surgeries and was scheduled for further painful surgery - Faced with this situation, Latimer killed his daughter to relieve her pain - He was convicted of second degree murder - He appealed, asserting 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 - The evidence was not such that, if be­lieved, a reasonable jury properly charged could have acquitted on this basis - The Supreme Court of Canada affirmed the finding - The requirements of immi­nent peril and absence of a reasonable legal alternative were not met - Even assuming that the defence of necessity applied in homicide cases, the harm avoided, when compared to the harm inflicted, was com­pletely disproportionate - See paragraphs 35 to 42.

Criminal Law - Topic 203

Common law defences - Necessity - The Supreme Court of Canada held that the test governing the three requirements of the necessity defence was mixed - The first and second requirements (imminent peril and absence of a reasonable legal alterna­tive) must be evaluated on the modified objec­tive standard - Accordingly, the accused must, at the time of the act, hon­estly bel­ieve, on reasonable grounds, that he faced a situation of imminent peril that left no reasonable legal alternative open - It was proper to consider the circumstances that legitimately affected the accused's ability to evaluate his situation - The third re­quirement (proportionality between harm inflicted and harm avoided) must be measured on a purely objective standard because it was a matter of community standard infused with constitutional con­sideration - See paragraphs 26 to 34.

Criminal Law - Topic 4329

Procedure - Jury - General - Verdicts - Duty of jury (incl. jury nullification) - The Supreme Court of Canada stated that the rule in Canada is that guilt is for the jury to determine while sentencing is left to the trial judge - There was no reason to depart from the general rule - The question of whether a jury would have been more likely to acquit if informed of the penalty could not be the basis for a requirement that the jury be informed of the possible penalty - See paragraphs 62 and 63.

Criminal Law - Topic 4329

Procedure - Jury - General - Verdicts - Duty of jury (incl. jury nullification) - An accused asserted that the right to a fair trial under s. 7 of the Charter encompassed an entitlement to jury nullification - He sub­mitted that there existed a jury power to nullify and that it would be unconstitu­tional to undermine that power - The Supreme Court of Canada rejected the assertion - Guarding against jury nullifi­cation was a desirable and legitimate exer­cise for a trial judge; in fact, a judge was required to take steps to ensure that the jury would apply the law properly - See paragraphs 69 and 70.

Criminal Law - Topic 4329

Procedure - Jury - General - Verdicts - Duty of jury (incl. jury nullification) - Latimer was charged with the second degree murder of his 12 year old daughter - The child suf­fered tremendously and Latimer claimed that he wanted to relieve her pain - In the course of its deliber­ations, the jury asked whether it could have an input respecting sentencing - The trial judge replied that the penalty was not the jury's concern and that: "... once you have reached a verdict, you-we will have some discussion about that, but not at this stage of the game." - Latimer was con­victed - He appealed, asserting that the trial judge had interfered with the jury's ability to nullify by implying that it would offer input on sentencing - Further­more, the trial judge should have clarified his misleading suggestion by telling the jury of the man­datory minimum sentence - The Supreme Court of Canada rejected the assertion - The accused had a right to a fair trial, not to a trial that increased the possibility of a jury nullification - The jury was not misled - See paragraphs 57 to 70.

Criminal Law - Topic 4357

Procedure - Charge or directions - Jury or judge alone - Direc­tions regarding defen­ces and theory of the defence - Latimer was charged with the second degree mur­der of his child - Latimer claimed that he wanted to relieve his child's pain and wished to raise the defence of necessity - Counsel had pre­pared two versions of a closing address and asked for a determina­tion on the availabil­ity of the defence - The trial judge deferred his decision on whether to leave the defence to the jury until after closing addresses - The judge then in­structed the jury that the defence was unavailable on the evidence - Latimer asserted that his s. 7 Charter right to a fair trial was violated as he did not know the case to meet - This therefore impacted on his ability to make full answer and defence - The Supreme Court of Canada held that neither the trial judge's ruling nor the manner in which the defence was removed affected the trial's fairness - See para­graphs 43 to 56.

Criminal Law - Topic 4386

Procedure - Charge or directions - Jury or judge alone - Judge's duty to determine if defence avail­able on evidence - [See Criminal Law - Topic 4357 ].

Criminal Law - Topic 4396

Procedure - Charge or directions - Jury or judge alone - Directions re penalties - [See third Crimi­nal Law - Topic 4329 ].

Criminal Law - Topic 5805

Sentencing - General - Statutory range mandatory (incl. mandatory and minimum sentence) - [See Civil Rights - Topic 3829 ].

Criminal Law - Topic 5830.1

Sentencing - Considerations on imposing sentence - Mercy or leniency - [See Civil Rights - Topic 3829 ].

Criminal Law - Topic 5881

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

Cases Noticed:

R. v. Perka, Nelson, Hines and Johnson, [1984] 2 S.C.R. 232; 55 N.R. 1; 14 C.C.C.(3d) 385; 13 D.L.R.(4th) 1; [1984] 6 W.W.R. 289; 42 C.R.(3d) 113, refd to. [para. 26].

Southwark London Borough Council v. Williams, [1971] Ch. 734 (C.A.), refd to. [para. 27].

R. v. Morgentaler, [1976] 1 S.C.R. 616; 4 N.R. 277; 20 C.C.C.(2d) 449, refd to. [para. 29].

R. v. Loughnan, [1981] V.R. 443 (Aust. S.C.), refd to. [para. 31].

R. v. Hibbert (L.), [1995] 2 S.C.R. 973; 184 N.R. 165; 84 O.A.C. 161; 99 C.C.C.(3d) 193, refd to. [para. 33].

R. v. Osolin, [1993] 4 S.C.R. 595; 162 N.R. 1; 38 B.C.A.C. 81; 62 W.A.C. 81; 86 C.C.C.(3d) 481, refd to. [para. 35].

R. v. Burke et al., [1987] 1 A.C. 417; 74 N.R. 1 (H.L.), refd to. [para. 40].

R. v. Dudley and Stephens (1884), 14 Q.B.D. 273, refd to. [para. 40].

United States v. Holmes (1842), 26 F. Cas. 360 (C.C.E.D. Pa.), refd to. [para. 40].

R. v. Underwood (G.R.), [1998] 1 S.C.R. 77; 221 N.R. 161; 209 A.R. 276; 160 W.A.C. 276, dist. [para. 47].

R. v. Rose (J.), [1998] 3 S.C.R. 262; 232 N.R. 83; 115 O.A.C. 201, refd to. [para. 47].

R. v. Morgentaler, [1988] 1 S.C.R. 30; 82 N.R. 1; 26 O.A.C. 1; 44 D.L.R.(4th) 385; 37 C.C.C.(3d) 449; 31 C.R.R. 1; 62 C.R.(3d) 1, refd to. [para. 58].

McLean v. R., [1933] S.C.R. 688, refd to. [para. 67].

R. v. Cracknell (1931), 56 C.C.C. 190 (Ont. C.A.), refd to. [para. 67].

R. v. Stevenson (1990), 41 O.A.C. 1; 58 C.C.C.(3d) 464 (C.A.), refd to. [para. 67].

R. v. Shipley (1784), 4 Dougl. 73; 99 E.R. 774 (K.B.), refd to. [para. 70].

R. v. Smith (E.D.), [1987] 1 S.C.R. 1045; 75 N.R. 321, refd to. [para. 73].

R. v. Miller and Cockriell, [1977] 2 S.C.R. 680; 11 N.R. 386; 31 C.C.C.(2d) 177, refd to. [para. 73].

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. 74].

R. v. Luxton, [1990] 2 S.C.R. 711; 112 N.R. 193; 111 A.R. 161; 58 C.C.C.(3d) 449, refd to. [para. 74].

Steele v. Mountain Institution, [1990] 2 S.C.R. 1385; 121 N.R. 198; 58 C.C.C.(3d) 449, refd to. [para. 74].

R. v. Goltz, [1991] 3 S.C.R. 485; 131 N.R. 1; 5 B.C.A.C. 161; 11 W.A.C. 161; 67 C.C.C.(3d) 481, refd to. [para. 74].

R. v. Morrisey (M.L.) (No. 2), [2000] 2 S.C.R. 90; 259 N.R. 95; 187 N.S.R.(2d) 1; 585 A.P.R. 1, refd to. [para. 74].

R. v. Guiller (1985), 48 C.R.(3d) 226 (Ont. Dist. Ct.), refd to. [para. 77].

R. v. Martineau, [1990] 2 S.C.R. 633; 112 N.R. 83; 109 A.R. 321; 58 C.C.C.(3d) 353; [1990] 6 W.W.R. 97; 79 C.R.(3d) 129; 76 Alta. L.R.(2d) 1; 50 C.P.R. 110, refd to. [para. 82].

R. v. C.A.M., [1996] 1 S.C.R. 500; 194 N.R. 321; 73 B.C.A.C. 81; 120 W.A.C. 81; 105 C.C.C.(3d) 327; 46 C.R.(4th) 269, refd to. [para. 86].

R. v. Mulvahill (C.S.) and Snelgrove (C.C.) (1993), 21 B.C.A.C. 296; 37 W.A.C. 296 (C.A.), refd to. [para. 86].

R. v. Sarson (J.A.), [1996] 2 S.C.R. 223; 197 N.R. 125; 91 O.A.C. 124, refd to. [para. 89].

Authors and Works Noticed:

American Law Institute, Model Penal Code and Commentaries (1985), §3.02, pp. 14, 15 [para. 40].

Canada, Law Reform Commission, Report on Recodifying Criminal Law (1987), p. 36 [para. 40].

Card, Cross and Jones, Criminal Law (12th Ed. 1992), p. 352 [para. 40].

Fletcher, George, Rethinking Criminal Law (1978), p. 804 [para. 34].

LaFave, W.R., and Scott, A.W., Substantive Criminal Law (1986), vol. 1, p. 634 [para. 40].

Robinson, P.H., Criminal Law Defenses (1984), vol. 2, pp. 63, 64, 65 [para. 40].

Smith and Hogan, Criminal Law (9th Ed. 1999), pp. 249 to 251 [para. 40].

Counsel:

Edward L. Greenspan, Q.C., Mark Brayford, Q.C., and Marie Henein, for the appellant;

Kenneth W. MacKay, Q.C., and Graeme G. Mitchell, Q.C., for the respondent;

Robert J. Frater and Bradley Allison, for the intervener, the Attorney General of Canada;

Michael Bernstein, for the intervener, Attorney General of Ontario.

Kent Roach, for the intervener, the Canadian Civil Liberties Association;

R. Douglas Elliott and Patricia A. LeFebour, for the intervener, the Canadian AIDS Society;

Robert G. Richards, Q.C., and Heather D. Heavin, for the interveners, 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 and People First of Canada;

William J. Sammon, for the intervener, the Catholic Group for Health, Justice and Life;

David M. Brown and Janet Epp Buckingham, for the interveners, the Evangelical Fellowship of Canada, the Christian Medical and Dental Society and Physicians for Life.

Solicitors of Record:

Greenspan, Henein & White, Toronto, Ontario, for the appellant;

Attorney General of Saskatchewan, Regina, Saskatchewan, for the respondent;

Robert J. Frater and Bradley Allison, Ottawa, Ontario, for the intervener, the Attorney General of Canada;

Ministry of the Attorney General, Toronto, Ontario, for the intervener, the Attorney General for Ontario;

Kent Roach, Toronto, Ontario, for the intervener, the Canadian Civil Liberties Association;

Elliott & Kim, Toronto, Ontario, for the intervener, the Canadian AIDS Society;

MacPherson Leslie & Tyerman, Regina, Saskatchewan, for the interveners, 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 and People First of Canada;

Barnes, Sammon, Ottawa, Ontario, for the intervener, the Catholic Group of Health, Justice and Life;

Stikeman, Elliott, Toronto, Ontario, for the interveners, the Evangelical Fellowship of Canada, the Christian Medical and Dental Society and Physicians for Life.

This appeal was heard on June 14, 2000, by McLachlin, C.J.C., L'Heureux-Dubé, Gon­thier, Iacobucci, Major, Binnie and Arbour, JJ., of the Supreme Court of Can­­ada.

The judgment of the Supreme Court of Canada was delivered in both official languages on January 18, 2001, by the court.