Hard Cases Make Bad Law

(17 November 1997) — Most lawyers agree with the old adage that "hard cases make bad law." Tailoring our laws to fit a few exceptions almost invariably means that they will fail to fit a much larger number of typical cases. We believe that changing the laws to respond to overwhelming public sentiment that Robert Latimer deserves a lighter sentence will almost certainly result in many new problems for Canadian law and society.

To understand what these new problems will be, we need to consider three possible alternatives for making these changes:

(1) We could eliminate minimum sentences for homicides,

(2) we could create a broadly defined compassionate homicide law, or

(3) we could create a very narrowly defined compassionate homicide law.

The first option is the one recommended by Mark Brayford, Mr. Latimer's lawyer. He recommends that we simply eliminate minimum penalties for first and second degree murder. This approach would open the door for Mr. Latimer to receive a lighter sentence. It would also open the door for every other person convicted of killing someone to get off with a lighter sentence. It would be a serious mistake for Canadians to change our laws based on this one case unless we also feel that we want the same principle applied to thousands of other cases that will be affected in the coming years. If Canadians want to create an opportunity for everyone convicted of homicide to spend less time in jail, eliminating minimum sentences is a good way to accomplish that. If Canadians do not really want to open this opportunity to everyone convicted of murder, eliminating minimum penalties would be a terrible mistake.

A second alternative, would involve the creation of a new class of third degree or "compassionate" homicide. This would allow elimination of minimum penalties for this class of homicide without elimination of minimum penalties for all murders. There are two serious problems with this approach. First, we can never directly observe motivation. This fact is complicated by two long-established principles of Canadian justice:

(1) guilt must be proven beyond a reasonable doubt, and

(2) defendants can not be required to testify at their own trials.

In effect, this would mean that any time a lawyer claimed that his client was motivated by compassion, it would become almost impossible to convict that individual of first or second degree murder since the prosecution would have to prove beyond a reasonable doubt that compassion was not the motive without ever having the opportunity to examine the defendant before the court.

For example, a nurse in a Danish nursing home was arrested last month for killing about 20 residents of the home. She was arrested after an investigation that appears to show that she stole about $100,000 from the people she killed and many were described as active, alert, and healthy.

She claims that she killed these people for compassionate reasons and there is no way to prove that she was not feeling compassion because her feelings can not be examined by others. The second problem is that compassion can be very broadly defined. It might be used to describe the killing of a person to prevent pain and suffering but it could also be used to describe many other alleged reasons for killing.

For example, Susan Smith who drowned her two children in South Carolina confessed saying that she had done it to spare them suffering through a divorce. Compassion may or may not have been her real motive, but it would be virtually impossible to prove beyond a reasonable doubt that it was not, particularly since her birth family had been broken by divorce and Smith had been an abused child by her step-father. Other parents tell us that they kill their children because they want to spare them from drug addiction, prostitution, atheism, poverty, or many other fates that they see as worse than death. We may or may not agree with their views on which children are better off dead, but it would not be necessary for society to agree, only that the parent who kills believes it, or at least that we can not prove beyond a reasonable doubt that they are lying about motivation.

Of course parents would not be the only ones who might avail themselves of the compassionate defense. Law enforcement officers might be equally justified in killing criminals to spare them from lives of disgrace and imprisonment. Criminals might even claim compassion, arguing that having realized the pain and suffering that they have already inflicted on their victims, they then killed their victim to end their suffering. While such absurd claims of compassion may seem laughable, even more bizarre claims already have been used to try to justify killing. For example, in June 1995 28-year-old Muricio Torres was charged with murder of his daughter in Suffolk County, New York, he claimed he had killed her on compassionate grounds. Torres said he was rough housing with his four-year-old daughter as fathers often do when she happened to fall on the large hunting knife that he was holding at the time causing a painful injury. He indicated that he could not stand to see her suffer and so he plunged the knife into her chest to put a quick end to her suffering. A broadly defined compassionate homicide law such as the one proposed for Canada would require proof that he did not kill her for this reason, and the prosecutor would be required to prove it without ever questioning him. The creation of such a vague compassionate homicide law would be disastrous to justice in Canada.

The final alternative for changing the law would be a much more narrowly defined compassionate homicide law. This kind of law would be carefully crafted to rule out most of the claims of compassion described. It would not include compassionate grounds such as saving someone from disgrace, divorce, temporary illness, boredom, existential crisis, or other things that a broad law might include. Only cases like those of Tracy Latimer would be left. Unfortunately, this approach has even greater problems. It provides no better solution for the problem of disproving a claim of compassionate motivation than a broader law. It simply restricts the problem to a particular class of victim. It simply assumes that if someone kills an individual with a severe disability and says that there was a good reason for it, we will believe it. If someone kills someone without a severe disability and says that there was a good reason for it, we will demand more proof. We believe that such a law would be a horrible affront to people with disabilities and would inevitably lead to more deaths of children.

Equally importantly, such a law would rightly be challenged and almost certainly be struck down since it would effectively amount to providing lesser protection for citizens with disabilities than for other citizens. We urge all Canadians and particularly all legislators to think carefully before changing the laws in response to the Latimer case. We believe that upon careful contemplation of the effects of proposed changes, Canadians will not want to create a bad law to attempt to address a few difficult cases.

Dick Sobsey, Director
JP Das Developmental Disabilities Centre

Gregor Wolbring,
Council of Canadians with Disabilities
Human Rights Committee