Factum Excerpts

(23 October 1998) — This Latimer Watch presents a summary of the 1998 intervention factum presented by our community to the Saskatchewan Court of Appeal in the Latimer case.

The intervenors addressed whether the Trial Judge erred in (a) failing to leave necessity as an issue for the jury; (b) granting Mr. Latimer a constitutional exemption from the mandatory provisions of the Criminal Code; and (c) failing to tell the jury of the punishment provided for the second degree murder.

11. ...[T]his case directly concerns the rights of disabled persons....Mr. Latimer's view is that a parent has the right to kill a disabled child if that parent decides the child's quality of life no longer warrants its continuation. That view threatens the lives of people with disabilities and is deeply offensive to fundamental constitutional values and to legal traditions which recognize that parents do not enjoy unfettered power with respect to the lives of their children.

12. The Coalition submits that the issues in these appeals must be considered in relation to the constitutional rights of Tracy Latimer and other disabled persons. More specifically, the Coalition submits that the rights of disabled individuals, as enshrined in sections 7 and 15(1) of the Canadian Charter..., determine the outcome of this appeal. The arguments advanced on behalf of Mr. Latimer would, if accepted, offend the guarantee of "life and security of the person" in section 7 of the Charter and offend the prohibition against discrimination on the basis of disability in section 15(1) of the Charter.

13. The Coalition also submits that the substance of Mr. Latimer's arguments cannot be reconciled with the deeply established legal tradition to the effect that parents do not enjoy an unlimited discretion with respect to the treatment of their children. The state has always reserved the right to intervene in situations where parental conduct contravenes the socially acceptable threshold.... Mr. Latimer's arguments would deny the community a role in protecting those children who most require assistance.

14. ...[T]he coalition respectfully submits that the sentence appeal should be allowed and that the conviction appeal, at least to the extent it is based on the doctrine of necessity, should be dismissed.

24. It is respectfully submitted that Noble J., diminished Tracy Latimer's life in the eyes of the jury by consistently defining her in terms of her disability. He described her condition as "an incurable affliction"...He went on to refer to Mr. Latimer's act of killing his daughter by using the benign term of "putting her to sleep."

25. The Coalition respectfully submits that this Court should not see Tracy Latimer only in terms of her disabilities. Her status as a human being must be paramount. Her disability cannot be used as a justification from departing from fundamental constitutional values. She was a person first and that fact must not be obscured by the detail of her medical problems.

32. The legal arguments being advanced by Mr. Latimer in these appeals are damaging to the dignity, self-respect and security of persons with disabilities. They are a special threat to the rights and interests of children with disabilities. The Coalition respectfully submits that this Court should recognize that reality and should shoulder the obligation of ensuring a result which defends and confirms the rights of disabled persons.

The Issue of Pain

39.. First, the Coalition submits that the facts do not support the view that Tracy Latimer's life had been one of unremitting pain or that it would necessarily be such a life following the hip surgery...That said, the Coalition emphasizes its view that the extent of Tracy's pain is irrelevant to the outcome of this appeal. Mr. Latimer's actions could not be justified even if Tracy had been in unrelenting pain.

40. The second reason for rejecting the argument that this case is only about "pain" is because Tracy's pain cannot be seen as something distinct from her disability...

41. Finally, in any event, it is abundantly clear that Tracy Latimer's disability is the only consideration which even allows Mr. Latimer to suggest that it was somehow justifiable for him to murder his child. Neither the public nor the courts would tolerate his argument for a moment if Tracy had been an able bodied and mentally competent child experiencing severe pain...

43. In summary the Coalition submits that Mr. Latimer's efforts to characterize this case as being about "pain" should not deflect the Court's attention from the significant disability rights issues which are at stake in these proceedings.

Assessing the Quality of the Lives of People with Disabilities

49. It is respectfully submitted that nobody can determine whether or not that life was worthy of being lived. It is essential that this Court clearly reject the notion that any person can put himself or herself in a position to judge whether a disabled individual should live or die. It must also avoid a system where sentencing is put on a sliding scale depending on the characteristics of the victim.


52. The Coalition emphasizes that scores of disabled individuals...feel fear because of the Trial Judge's ruling on the sentence and because of the arguments that would find Mr. Latimer not guilty of murder. The Court should appreciate that fear and decide this case in a fashion which sends a strong message to the community that the criminal law will protect the lives of all Canadians.

Defence of Necessity

61. ...[I]t can be seen that the extension of the law of necessity advocated by [Mr. Latimer] involves an inevitable conflict with fundamental legal values and with the specific Charter rights of persons with disabilities. That conflict suggests in the strongest possible terms that Mr. Latimer's argument should be rejected. There is no room in Canadian law for a doctrine that would literally fix disabled people with an ongoing burden to "justify their existence."

Cruel and Unusual Punishment

71. Tracy was a child—a disabled child. She was killed by the very person who was responsible for her care. It is most curious that Mr. Latimer has been allowed to build those circumstances into an argument that punishing him for second degree murder in relation to a premeditated killing is somehow so cruel and unusual as to offend his Charter rights.

Advising Jury of Minimum Punishment

75. The Coalition emphasizes the point made by the Crown...to the effect that Mr. Latimer's argument on this point is really aimed at getting the jury to consider sentence in its determination of the wholly separate issue of whether Mr. Latimer was guilty of murder. It is submitted that there is no meaningful difference between directly inviting a jury to ignore the law and providing it with irrelevant information in the hope that it will be misused.