Our Voice Will Be Heard - Intervenor Status Granted in Latimer Case

APPEAL DATE IS 19 OCTOBER 1998

(8 October 1998) — The Saskatchewan Court of Appeal granted joint intervenor status to the Council of Canadians with Disabilities (CCD), Saskatchewan Voice of Persons with Disabilities, People First Canada, Canadian Association for Community Living (CACL), the DisAbled Women's Network Canada (DAWN Canada), and People in Equal Participation (PEP) in the Latimer case. The Court is allowing the intervenors 20 minutes of oral argument. Mr. Bob Richards of the firm McPherson, Leslie and Tyerman will act as legal counsel.

The case is being appealed by both the Crown and Robert Latimer. CCD and the Saskatchewan Voice intervened jointly in Latimer's first appeal, as did PEP.

The Grounds of This Appeal

Why the Crown is Appealing

The Crown argues that the trial judge erred in law by:

1. failing to disallow Latimer's claim for a constitutional exemption from the sentence required by law, as per the decision of the Saskatchewan Court of Appeal in R. v. Latimer (1995).
2. by granting the constitutional exemption from the mandatory provisions of Criminal Code Sections 235(1) ["Every one who commits first degree or second degree murder is guilty of an indictable offense and shall be sentenced to imprisonment for life."] and 745(c) ["in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without 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 section 745.4;"] without finding either section violated the Charter.
3. holding that Mr. Latimer should receive a constitutional exemption without first properly considering the effect of the Royal prerogative of mercy on the need to grant a constitutional exemption.
4. imposing an illegal sentence contrary to the mandatory provisions of the Criminal Code.

Why Latimer is Appealing—Mr. Latimer's application presents the following grounds. It contends that the trial judge erred by:

1. failing to leave necessity as an issue for the jury;
2. declining to rule on whether necessity would be left to the jury, prior to counsels' addresses;
3. ruling that in a murder case, a jury cannot be told of the minimum punishment;
4. failing to provide the jurors with correct and comprehensive responses that fully answered their questions;
5. failing to instruct the jury to decide the case on what they felt was just, if they were of the view that following the law would lead to an unjust result;
6. not charging the jury that they could find that Robert Latimer had the legal right to decide to commit suicide for his daughter, by virtue of he and his wife being her surrogate decision makers for all other decisions;
7. imposing a sentence that is greater than is warranted or necessary, considering the facts of the case and the accused's background.
8. finally, any grounds advised by Counsel.

Highlights of Our Factum in the First Appeal

In his first appeal, Latimer urged the Court to accept that killing Tracy was necessary to relieve her pain, that he had the right to commit suicide for Tracy because typically he made all her decisions, and that the sentence was inappropriate due to the facts of the case. We presented the following points to the Court:

Necessity Argument

If the defense of necessity is allowed in the Latimer case, it must be allowed in many other cases where people with disabilities experience pain. This would deprive people with disabilities of the full protection of the criminal law, remove the deterrent effect of the law and protect from punishment those who kill people with disabilities.

The factum stated: "Making the defense of necessity available to the murderer of a disabled person has the self-evident effect of depriving disabled persons of the equal protection of the criminal law. By the virtue of their disabilities, they are made more vulnerable than everyone else. There is also no doubt that such differential treatment would be discriminatory in even the most extreme meaning of that concept."

Suicide Argument

Giving parents or other care givers the unilateral authority to decide whether a person with a disability lives or dies violates the Charter's Section 7 guarantees—"Everyone has the right to life, liberty and security of the person and the right not to be denied thereof except in accordance with the principles of fundamental justice." The factum pointed out that, "Allowing a care giver the 'legal right to decide to commit suicide' for a disabled person amounts to vesting that care giver with an absolute and complete discretion as to whether the disabled person would live or die. As a result, disabled persons would, by virtue of their disability, be in a completely different position relative to the criminal law than any other member of society. ...Canadian law has never recognized or accepted the kind of open-ended parental authority claimed by the Appellant [i.e. the right of a parent to commit suicide on behalf of a child]".

Appropriateness of the Sentence

The community argued that the mandatory sentence was appropriate for Robert Latimer. The factum stated that, "The Appellant seeks to create a 'mercy killing' exemption to the sentencing provisions of the Code. That exemption would operate only in respect of persons who murder individuals with disabilities and, by necessary effect, those individuals would be deprived of the full protection of the law. In fact, at least insofar as those who are unable to formulate or express views on the matter are concerned, their lives would rest entirely in the hands of their parents or care givers. If their situation became such that (in the eyes of the care giver) death was preferable to life, they could be killed.

The community argued that Tracy Latimer's situation was not unique and that many people with disabilities live in pain and in situations where they are dependent upon their families. "It is essential that those individuals receive the full protection of the criminal law and that any interpretation of ... the Charter reflect that imperative," stated the factum.

To promote our fundamental human rights, contribute to the Tracy Fund. (CCD, 926-294 Portage Ave., Winnipeg MB, R3C 0B9.)