Latimer Case Factum 2000

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FACTS AND BACKGROUND

  1. This case raises significant issues about the rights of people with disabilities and its outcome could have life threatening consequences for scores of disabled individuals. It is essential that this appeal be resolved in a fashion which clearly and strongly affirms the rights of the many disabled Canadians whose dignity and security have been put in jeopardy by the arguments advanced on behalf of the Appellant.
  2. Council of Canadians with Disabilities, Saskatchewan Voice of People with Disabilities, Canadian Association for Community Living, People in Equal Participation Inc., Dawn Canada: DisAbled Women's Network Canada, and People First of Canada (collectively "the Coalition") represent the rights of people with disabilities across Canada. They are intimately familiar with the joys and struggles faced by the families of severely disabled children.
  3. The Coalition generally accepts the statement of facts in the Crown's Factum at paragraphs 1 to 30. However, it wishes to emphasize four points.
  4. First, Tracy Latimer's life, overall, was not one of either unremitting pain or one of emptiness. She was often cheerful and happy and she enjoyed a variety of experiences.
  5. Second, the last weeks of Tracy's life, those immediately prior to her murder on October 24, 1993, were not as bleak as the Appellant's Statement of Facts suggests. The communication book sent between the Latimer home and the Development Centre in October of 1993 contains the following entries:

October 4, 1993 - "Tracy ate a good supper, and ate her dessert [sic] before she went to bed. She seemed more comfortable. The green badges on Tracy's tray are what she won at bowling, she did the best in her class. Theresa said Tracy threw up about three times over the three months" (reference to Theresa Huyghebaert, from the North Battleford group home). (Appellant's Record, Vol. III, page 572, lines 1-12)

October 6, 1993 - "Tracy had a good evening, her hip seemed better at night than in the morning, she was quite cheerful." (Appellant's Record, Vol. III, page 572, lines 13-23)

October 13, 1993 - "Tracy went to the group home for the weekend. Picked her up Monday. . . . B.M. Tuesday she went to Saskatoon, ate great." (the trip to Saskatoon was when she went to see Dr. Dzus on October 12, 1993). (Appellant's Record, Vol. III, page 572, lines 24-26; page 573, lines 1-13)

October 18, 1993 - "Tracy kept everything down, so that was good. She was quite cheerful." (Appellant's Record, Vol. III, page 573, lines 14-23)

October 19, 1993 - "Tracy was good, ate and drank fine." . . . "Tracy was good, ate really well, had a bath, Bob bathed her." (Appellant's Record, Vol. III, page 573, lines 24-26; page 574, lines 1-17)

  1. On the application form for a permanent group home placement completed in the fall of 1993, Laura Latimer wrote as follows in describing Tracy:

Usually sleeps through the night, though also naps a couple of times a day. (Appellant's Record, Vol. III, page 581, lines 18-24)

Likes to sit by bonfire. (Appellant's Record, Vol. III, page 582, lines 1-3)

Likes to be rocked. (Appellant's Record, Vol. III, page 582, lines 1-3)

  1. As a third point, the Coalition also emphasizes that there were options for dealing with the pain Tracy was experiencing in October of 1993. Dr. Kemp, Tracy's family physician, testified that he had another patient that had just had the type of surgery scheduled for Tracy and that the pain this patient had been experiencing was easing up. (Appellant's Record, Vol. II page 365, lines 5-14; page 366, lines 10-14.) Furthermore, alternate medication may have been available to Tracy by means of a feeding tube. However, the Appellant and Laura Latimer decided never to allow Tracy to use a feeding tube. (Appellant's Record, Vol. 11, page 330, lines 3-26; page 331, lines 1-26; page 32, lines 1-12; Vol. III, page 494, lines 5-18; page 504, lines 13-26; lines 505, lines 1-26; page 506, lines 1-10; page 610, lines 2-11; page 612, lines 16-18).
  2. Fourth, the Coalition stresses that Tracy Latimer's condition, and the surgeries she was undergoing, were not unique. They were common for individuals with severe forms of cerebral palsy. Dr. Dzus testified that 70% - 75% of totally involved spastic quadraparetic children, like Tracy, develop scoliosis and that 75% of the totally involved, totally dependent children develop a subluxated or dislocated hip over their lifetime. (Appellant's Record, Vol. II, page 309, lines 1-20).

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ISSUES

The Coalition restricts its written argument to the following issues:

Issue #2: Did the trial judge err in failing to leave the defence of necessity to the jury?

Issue #3: Although counsel may never inform a jury of the power to nullify, and the Court should never encourage nullification, can a judge provide a misleading answer to jurors that would have the effect of undermining why the jury might exercise their power to nullify?

Issue #4: Did the learned trial judge err in law in not charging the jury that it was not murder if Robert Latimer decided to commit suicide for his daughter, by virtue of he and his wife being her surrogate decision makers for all other decisions?

Issue #5: Does the Charter allow for a constitutional exemption in mandatory minimum sentencing, and if so, should a constitutional exemption have been granted in Robert Latimer's circumstances?

In addition, the Coalition also presents submissions with respect to a number of general principles that underpin the consideration of the specific legal questions before the Court.

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ARGUMENT

Introduction

Stripped to its bare essentials, the Appellant's position 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 both fundamental constitutional values and to legal traditions which recognize that parents do not enjoy unfettered power with respect to the lives of their children.

The Coalition submits that the issues in this appeal must be considered in relation to the constitutional rights of Tracy Latimer and of 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 of Rights and Freedoms, determine the outcome of this appeal. The arguments advanced on behalf of the Appellant 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.

The Coalition also submits that the substance of the Appellant'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. There can be no doubt that the murder of a child is the sort of action which demands such intervention. The Appellant's arguments would deny the community a role in protecting those children who most require assistance.

In light of these considerations, the Coalition respectfully submits that the Appellant's appeal must be dismissed.

The Circumstances of People with Disabilities

Sadly, the history of disabled persons in Canada is a history of marginalization, exclusion and social devaluation. At the heart of this history is the perception of disabled persons as abnormal or as existing in tragic and unbearable circumstances. As a consequence of that perception, disabled persons have been exposed to victimization and discrimination.

Society attributes negative characteristics to disabled persons. These attitudes are bolstered by actions, attitudes and beliefs which often characterize disabled persons as being less than human. The perception that disabled persons have lives of diminished value reinforces rationalizations for treating them prejudicially.

See also: Oliver, "Theories of Disability in Health Practise and Research" Nov. 21, (1998), Vol. 317 British Medical Journal 1446.

In Battlefords and District Co-op v. Gibbs (1994), 116 D.L.R. (4th) 109 (Sask. C.A.)., Jackson J.A. recognized that the negative attitudes and limitations experienced by disabled persons are not the direct result of their disabilities, but rather are a function of how they are perceived. She wrote at p. 133:

Historically, the disabled have been stigmatized and shunned by our society. Ancient attitudes based upon ignorance and fear pervade many ideas about disabled members of our society. For many disabled persons, the greatest handicap many disabled individuals experience is not the limitations imposed by their disability, but the attitude of others toward their disability: D. Pothier, "Miles to Go: Some Personal Reflections on the Social Construction of Disability" (1992), 14 Dalhousie L.J. 526 at p. 526. These attitudes are deeply ingrained and frequently function at a sub-conscious level. (Emphasis added)

Lepofsky and Bickenbach in "Equality Rights and the Physically Handicapped", Bayefsky and Eberts, Equality Rights and The Canadian Charter of Rights and Freedoms (1985) (Toronto: Carswell) recognize this phenomenon at p. 326:

At the core of traditionally held attitudes towards persons with disabilities is the belief that a disability renders one substantially incapable of enjoying life. Blindness, deafness, reliance upon a wheelchair and the like are typically perceived as perpetual tragedies unjustly imposed on the undeserving. Those "suffering" from these conditions deserve pity, for they have been robbed of the true fullness of life; they are not whole persons.

This same issue is particularly acute in the context of mental disability. Vickers and Endicott in "Mental Disability and Equality Rights", Bayefsky and Eberts, supra make the point as follows at pp. 381-382:

To be mentally disabled is to be assured that throughout life you will be viewed as "different". Whether the label is mentally ill, mentally handicapped or mentally retarded, or couched in more specific, professional terminology such as Down's Syndrome, schizophrenia or Prader Willes' syndrome, the label sets the problem of discrimination in motion. Consequences flow from unfounded assumptions about the nature of mental disability. (Footnote omitted)

See also: Sobsey, in "Chapter 11: Changing Attitudes that Disinhibit Violence" in Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? (1994) (Toronto: Paul H. Brookes).

The equality guarantees in the Charter of Rights and Freedoms and human rights statutes in all Canadian jurisdictions have been introduced for the precise purpose of responding to the stereotypes and stigmatization which are involved in the arguments advanced in this case and which are reflected in some of the public reaction which the Appellant's conviction has engendered. In Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143, at p. 171, this Court described the purpose of section 15(1) of the Charter as follows:

It is clear that the purpose of s. 15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.

The common historical stereotyping of persons with disabilities has occupied centre stage in this case. The Appellant's defence has rested substantially on unspoken assumptions about the value of the life of Tracy Latimer. For example, emphasis on the fact that Tracy was spoon fed, incontinent, unable to talk, cognitively impaired and dependent upon others to provide her care, has nothing to do with her alleged pain and the avowed theory of the Appellant's case. Rather, it has everything to do with Tracy's disability and the quiet suggestion that her disability reduced the value of her life. The Appellant's emphasis on these aspects of Tracy's physical and mental condition serve no higher purpose than to dehumanize her and to make her out to be unworthy of the full protection of the law.

The Trial Judge, presumably unconsciously, also diminished Tracy Latimer's life by consistently defining her in terms of her disability. For example, he described her condition as "an incurable affliction" (Appellant's Record, Vol. IV, page 748, lines 5-16). He also indicated that in describing Tracy's physical and mental disabilities to the jury, he had attempted to ". . . outline, in a general way, the tragic medical condition of Tracy." (Appellant's Record, Vol. III, page 750, lines 15-17). In his charge, Noble J. dealt with the evidence of Laura Latimer and, in so doing, described Tracy's life since birth, emphasizing her brain damage, her seizures, her inability to crawl or stand-up, her challenges in eating, and her previous surgeries. (Appellant's Record, Vol. III, pages 756-764). He went on to refer to the Appellant's act of killing his daughter by using the benign term of "putting Tracy to sleep". (Appellant's Record, Vol. III, page 761, line 14; page 770, line 15). In his judgment on sentence Noble J. continued to comment on Tracy's disability, using terminology such as ". . . Tracy's tragic physical debilitation by virtue of her cerebral palsy". (See: R. v. Latimer (1997), 12 C.R.(5th) 71 at p. 122).

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 for departing from fundamental constitutional values. She was a person first and that fact must not be obscured by the detail of her medical circumstance.

  1. The Significance of Charter Rights
  2. The Charter has a pervasive and controlling impact on the growth and content of the law. As a result, it must be given express consideration in the resolution of these appeals.
  3. It is well established that the common law should develop in accordance with Charter principles. Thus, in R. v. Salituro, [1991] 3 S.C.R. 654, Iacobucci, on behalf of the Court, relied on Charter values to conclude that certain exceptions were required in respect of the rule that the wife of an accused person is not a competent witness for the prosecution. In considering the impact of the Charter on common law doctrine, he concluded as follows at p. 675:

Where the principles underlying a common law rule are out of step with the values enshrined in the Charter, the courts should scrutinize the rule closely. If it is possible to change the common law rule so as to make it consistent with Charter values, without upsetting the proper balance between judicial and legislative action that I have referred to above, then the rule ought to be changed.

See also: R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573; Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494; R. v. Seaboyer, [1991] 2 S.C.R. 577; R. v. Gruenke, [1991] 3 S.C.R. 263.

The relationship between the Charter and the common law is directly relevant to the Appellant's position on the doctrine of necessity. The reasoning reflected in his arguments invites the Court to develop new common law principles or to extend existing common law doctrine. That cannot be done if it results in the infringement of rights guaranteed to people with disabilities.

This Court has also said that the content of specific Charter rights themselves must be determined with reference to the rest of the Charter. As a matter of general principle, individual guarantees should be interpreted in light of other Charter provisions. In R. v. Lyons, [1987] 2 S.C.R. 309, LaForest J., writing for the majority, said at p. 326:

[T]he particularization of rights and freedoms contained in the Charter thus represents a somewhat artificial, if necessary and intrinsically worthwhile attempt to structure and focus the judicial exposition of such rights and freedoms. The necessity of structuring the discussion should not, however, lead us to overlook the importance of appreciating the manner in which the amplification of the content of each enunciated right and freedom imbues and informs our understanding of the value structure sought to be protected by the Charter as a whole and, in particular, of the content of the other specific rights and freedoms it embodies.

The Appellant advocates a particularly aggressive interpretation of section 12 of the Charter. As a result, the Coalition submits that his position in that regard must also be examined for its wider Charter implications. These arguments must be rejected because they cannot be reconciled with the interests of disabled persons as reflected in sections 7 and 15 of the Charter.

The Coalition reiterates that the constitutional entitlements of Tracy Latimer, and of disabled persons generally, must be weighed in connection with each of the Appellant's submissions. A substantial re-invention of common law rules, such as that advocated by the Appellant, cannot take place without regard to the Charter rights affected by that re-invention. Similarly, no interpretation of section 12 of the Charter can be disengaged from other Charter interests.

The legal arguments being advanced by the Appellant in this appeal 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 and those persons with severe and multiple disabilities. The physical challenges and/or communication barriers that these individuals face often require them to be dependent on, and trust in, their caregivers, educators and family. 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. See: Sobsey, "Chapter 5: For Their Own Good . . . Caregiving or Abuse?", supra, at pp. 111-143.

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The Position of Children

The Appellant's arguments appear to involve an assumption that, because Tracy was his child, he had some sort of absolute right to make decisions affecting her life. That perspective is clearly revealed in his counsel's address to the jury which invited the jury to decide that the Appellant had the right to decide whether Tracy should live or die. (Appellant's Record, Vol. IV, page 682, lines 5-23)

The Coalition rejects the suggestion that parents or caregivers have some sort of unfettered right to make decisions concerning the lives of children in their care. The Appellant's view is completely inconsistent with basic social and legal values.

These values are reflected in New Brunswick (Minister of Health and Community Services) v. B. (R.) (1990), 70 D.L.R. (4th) 568 (N.B.Q.B.) where McLellan J. clearly rejected the ability of surrogate decision-makers to choose the death of their child. He authorized medical treatment of a severely mentally disabled 10-year-old girl whose parents thought it would be in the child's best interests to die and wrote as follows at pp. 570-571:

In short, the highest legal authority of Canada [the Charter] provides that everyone has the right to life without discrimination based on age or on mental or physical disability and that everyone had the right not to be subjected to any cruel or unusual treatment. Those laws limit the discretion of what parents, physicians and judges may do.

In this case the parents and neurosurgeon want to discriminate against the girl because she is severely mentally retarded and neurologically handicapped. However reasonable or rational their discrimination may appear to them to be, it contravenes the Charter and is thus illegal and wrong. This court cannot approve of illegal discrimination.

The neurosurgeon says that "further medical treatment will serve only to prolong (her) suffering". He is incorrect. Further medical treatment cannot prolong her suffering unless it also prolongs her life. That life, however low its quality, is her right.

(Emphasis added)

See also: B. (R.) v. Children's Aid Society of Metropolitan Toronto,[1995] 1 S.C.R. 315.

The same perspective is evident in this Court's decision in E. [Mrs]. v. Eve, [1986] 2 S.C.R. 388. There, in discussing parens patriae jurisdiction, La Forest J. wrote as follows at p. 427:

. . . Simply put, the discretion is to do what is necessary for the protection of the person for whose benefit it is exercised . . . The discretion is to be exercised for the benefit of that person, not for that of others. It is a discretion, too, that must at all times be exercised with great caution, a caution that must be re-doubled as the seriousness of the matter increases. This is particularly so in cases where a Court might be tempted to act because failure to do so would risk imposing an obviously heavy burden on some other individual. (Emphasis added)

Significantly, the U.N. Convention on the Rights of the Child, set out at Appendix A, confirms the fundamental proposition that children have rights which exist and must be determined independently of the views, however well intended, of their parents. The Convention provides, inter alia, that every child has the inherent right to life and that mentally and physically disabled children should enjoy a full and decent life.

The Coalition recognizes, and is intimately familiar with, the sacrifices made by the parents of children with severe disabilities. However, it also knows the joys and triumphs of those parents. The Coalition absolutely rejects any suggestion that parents and other caregivers are entitled to decide whether disabled children should live or die.

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The Issue of Pain

The Coalition takes issue with the efforts made on the Appellant's behalf to characterize an act of murder as being about "ending Tracy's pain" and as somehow being irrelevant to, or disconnected from, issues of disability rights. The "pain" issue merely diverts attention from the fundamental significance of this appeal.

First, it is incongruous that the Appellant is attempting to characterize his actions as being about ending Tracy's pain when he rejected the option of placing Tracy on a feeding tube and thereby foreclosed some medication options.

Second, 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 have been such a life following the hip surgery. (See Crown Factum, paragraphs 2-18 and paragraphs 4-7 above).

Third, the argument that this case is only about "pain" disregards the fact that Tracy's pain cannot be seen as something distinct from her disability. Her pain was caused by her disability and was self evidently nothing more and nothing less than a feature of it. In general terms, despite common stereotypes to the contrary, pain is not a necessary consequence of disability. However, in situations like those at issue in this appeal, it is simply not credible to suggest that pain and disability are two fully separate matters. They are not.

Finally, and in any event, it is abundantly clear that Tracy Latimer's disability is the only consideration which allows the Appellant to suggest that it was somehow justifiable for him to murder his child. Neither the public nor the courts would tolerate his arguments for a moment if Tracy had been an able bodied and mentally competent child experiencing severe pain. It is submitted that Tallis J.A. was entirely correct when he wrote as follows in R. v. Latimer (No. 1) (1995), 99 C.C.C. (3d) 481 (Sask C.A.) at p. 519:

In this situation it is a fair inference that such a decision [Tracy Latimer's murder] would never have been suggested or considered if Tracy were not handicapped and in extreme pain. This difference in approach between handicapped and non-handicapped children directly reflects a sense that the life of a handicapped child is of significantly less value than the life of a non-handicapped child in extreme pain. A pivotal question to be considered is: "If the child were not permanently disabled, but in extreme pain, would there been any question about making heroic efforts to sustain and maintain life?" If the answer is no, then the decision would appear to be clearly predicated upon the diminished value assigned to the life of a handicapped child. One would not be so inspired by love and compassion to take the life of the non-handicapped child.

(Emphasis added)

The Coalition also notes that it is extremely dangerous to base legal conclusions on one person's perception of another individual's ability to tolerate pain or on his or her perception of the impact of pain on the other person's quality of life. Pain is subjective. The point is clearly made in Harrison's Principles of Internal Medicine, 13th ed., (1994) editors, Isselbacher et al;. (McGraw Hill: Toronto), in Part 2: Cardinal Manifestations of Disease, Section 1: Pain: Pathophysiology and Management, by Martin and Fields:

The pain produced by similar injuries is remarkably variable in different situations and in different people. For example, athletes have been known to sustain serious fractures with only minor pain and Beecher's classic World War II survey revealed that many men were unbothered by battle injuries that would have produced agonizing pain in civil patients. Furthermore, even the suggestion of relief (placebo) has a significant analgesic effect. On the other hand, many patients find even minor injuries (such as venipuncture) unbearable, and the expectation of pain has been demonstrated to induce pain without a noxious stimulus.

The powerful effect of expectation and other psychological variables on the perceived intensity of pain implies the existence of brain circuits that can modulate the activity of the pain-transmission pathways . . . (p. 51)

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

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Assessing the Quality of the Lives of People with Disabilities

The Appellant's arguments rest substantially on the notion that it is both appropriate and possible for one person to assess another person's life and to determine whether that other person's life is of sufficient quality to warrant his or her continued existence. The Coalition notes the self-evident fact that the Canadian legal and constitutional tradition has always rejected the notion that people should be able to assess the worth of someone else's life. That proposition is developed later in this Factum. However, at this point, the Coalition wishes to stress the danger of believing that one person can assess the value of another person's life.

It is submitted that no one, including a parent, guardian, spouse, relative, caregiver or educator of a person with disabilities, has the capacity to evaluate that person's quality of life. Arguments based on quality of life necessarily assume there is an objective standard against which one is able to make comparisons. However, "[t]he truth is that if there is such a thing as quality of life, it exists only as a subjective phenomenon. People can only rate themselves with any kind of meaning." See: Sobsey, "Disability, Discrimination and the Law" 2(1) Health Law Journal 6 at p. 8.

The non-disabled majority is not in a position to experience disability. That reality is often translated into a collective mythology that persons with disabilities live tragic lives, marked by deprivation and suffering. This is not the case. An individual's life does not become unworthy of being lived because he or she has an unresponsive body or reduced cognitive capacity. Disabled persons do not perceive themselves as different, deprived or less normal than other members of society merely because their bodies or minds may not function in the same way as the majority of non-disabled persons.

The absolute danger in attempting to judge another person's quality of life is starkly highlighted in a 1992 study conducted at the University of Medicine and Dentistry of New Jersey and referred to by Sobsey, supra. The study involved caregivers and their patients who were ventilator-assisted (required a machine to keep them breathing). The caregivers were asked to rate their quality of life on a scale from 1 to 8 and were also asked to use the same scale to rate the quality of life of the people to whom they provided care. The people who were ventilator- assisted were asked to rate their own quality of life on the same basis. When the caregivers and the ventilator-assisted people rated their own lives, their ratings were virtually identical. One group was 5.30 and the other was 5.36. However, when the care-givers rated the quality of life of the people in their care, the rating was dramatically lower and averaged only 2.5. The relevance of that study to the arguments advanced in this appeal cannot be over-emphasized.

Tracy Latimer's life, like the life of any person, must be looked at in its entirety. Neither Tracy's physical or mental condition, nor her pain, were determinative of her quality of life. Tracy had cerebral palsy. She was reliant on a wheel chair. She loved being rocked. She was unable to use her hands to feed or care for herself. She enjoyed music. She had muscle spasms. She enjoyed the jacuzzi. She had a dislocated hip. She enjoyed hanging in a hammock. She had seizures. She smiled. She underwent operations to straighten her spine and aid her respiration. She enjoyed visits with other students. She had difficulties eating. She liked to sit by a bonfire with her family.

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 make such a judgment. Indeed, the mere consideration of this issue demeans the dignity and self-worth of every disabled person.

Deterrence

The Coalition respectfully submits that the Court should pay careful attention to considerations of deterrence in resolving this case.

Tracy Latimer's situation was not unique. Many, many individuals live in circumstances where they are dependent on parents or other caregivers. Both the argument about "necessity" advanced by the Appellant, and the sentencing decision by the Trial Judge, open the door to very real risks that other care-givers will kill those in their charge.

This point is expressed well by Smith, in Forced Exit: The Slippery Slope From Assisted Suicide to Legalized Murder (1997) (New York: Times Books Random House) at p. 59:

Once we accept the idea that some lives are not worth living, once we come to see the intentional ending of lives of the profoundly disabled as proper, once we claim the right to judge who should live and die on the basis of subjective standards such as happiness, quality of life, or dignity, we have created a disposable caste: fellow humans who can be killed without legal consequence, whose intentional deaths do not disturb a good night's sleep.

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

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Consideration of the Issues:

The Defence of Necessity

The Coalition endorses the submissions of the Crown to the effect that the defence of necessity, as established by this Court, does not arise on the facts of this appeal. It absolutely rejects the notion that it is "necessary" to terminate the life of persons in Tracy Latimer's situation. Everyone, disabled or non-disabled, must enjoy equal protection of the law.

The Coalition submits that any attempt to extend the doctrine of necessity to the circumstances of this case would be a misapplication of the common law and would offend the Charter rights of disabled persons. That impact can be readily seen by examining the logic of the Appellant's position. As discussed above, the circumstances which are said to engage the doctrine of necessity amount to nothing more or less than the fact of Tracy Latimer's disability. If the defence of necessity is available in this case, it will be available in scores of other situations.

All of that has one inevitable consequence. The criminal law sanction for murder will simply not operate in respect of the killing of persons with disabilities. On the one hand, the defence of necessity will protect from punishment those who kill disabled persons. On the other hand, the prospect that a defence of necessity might be available will remove or reduce the deterrent effect which the law currently provides in respect of the murder of handicapped persons. In both situations, the fact that the defence is grounded on the physical or intellectual condition of the victim means that disabled persons will be deprived of the full protection of the criminal law and that they will be so deprived because of their disabilities.

Section 7 of the Charter guarantees "everyone", disabled and non-disabled, "life" and "security of the person" and the right not to be deprived thereof except in accordance with principles of fundamental justice. It is obvious that the lives and physical security of disabled persons are denied by way of their deaths. It is also obvious that leaving a parent, guardian or other caregiver with the unilateral authority to decide whether a person should live or die does not comport with principles of fundamental justice. Indeed, it is absolutely inconsistent with those principles.

Section 15(1) of the Charter guarantees every individual the "equal protection" of the law without discrimination on the basis of mental or physical disability. Making the defence 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 virtue of their disabilities, they are made more vulnerable than everyone else. There is also no doubt that such differential treatment would be discriminatory on any meaning of that concept.

In this context, it is important to note that the denial of the rights of persons with disabilities operates and exists entirely independently of what the parents and caregivers of those persons believe about the merits of their actions. Constitutional rights cannot be dissolved by good intentions and animus is irrelevant to discrimination under section 15(1). See: Symes v. Canada, [1993] 4 S.C.R. 695 at pp. 753-758. Tracy Latimer's death is made no less significant by the claim that the Appellant acted out of noble motives.

The Coalition submits that the reasoning of this Court in Rodriguez v. Attorney General of British Columbia [1993], 3 S.C.R. 519 is extremely telling in the context of this appeal. In Rodriguez, the Court rejected a constitutional challenge to section 241(b) of the Criminal Code which had been brought by Ms. Rodriguez, a mentally competent adult. Sopinka J. for the majority of the Court, wrote at p. 585:

As members of a society based upon respect for the intrinsic value of human life and on the inherent dignity of every human being, can we incorporate within the Constitution, which embodies our most fundamental values, a right to terminate one's own life in any circumstances? This question in turn evokes other queries of fundamental importance such as the degree to which our conception of the sanctity of life includes notions of quality of life as well (p. 585) . . . Section 241(b) has as its purpose the protection of the vulnerable who might be induced in moments of weakness to commit suicide. This purpose is grounded in the state interest in protecting life and reflects the policy of the state that human life should not be depreciated by allowing life to be taken. This policy finds expression not only in the provisions of our Criminal Code which prohibit murder and other violent acts against others notwithstanding the consent of the victim, but also in the policy against capital punishment and, until is repeal, attempted suicide. This is not only a policy of the state, however, but is part of our fundamental conception of the sanctity of human life. (p. 595) . . . The basis for this refusal [to allow assisted suicide] is twofold it seems - first, the active participation by one individual in the death of another is intrinsically morally and legally wrong, and second, there is no certainty that abuses can be prevented by anything less than a complete prohibition. (p. 601).

(Emphasis added)

In the result, it can be seen that the extension of the law of necessity advocated by the Appellant 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 the Appellant'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."

Advising Jury of Minimum Punishment and Power to Nullify

The Coalition adopts the submissions of the Crown on this issue. It emphasizes the point made by the Crown, at paragraphs 75 through 78 of its Factum, to the effect that the Appellant'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 the Appellant 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 such information will be misused.

In R. v. Morgentaler, [1988] 1 S.C.R. 30, Dickson J. used what he called a "harsh but telling" example to illustrate his concerns in that case. He referred to the dangers involved in a situation where the jury "fueled by the passions of racism" could be told that they need not apply the law against murder to a white man who had killed a black man. The Coalition respectfully submits that the very same concerns, transposed to the realm of disability, are very much alive in this appeal. It would be dangerous and totally unacceptable to allow a jury, consciously or unconsciously biased against the interests of the disabled, to believe that the disabled status of a victim could somehow be made relevant to the guilt or innocence of an accused.

Surrogate Suicide

The Coalition adopts the arguments of the Crown made in response to the Appellant's "surrogate suicide" argument.

It is respectfully submitted that the Appellant's contentions amount to nothing more than an attempt to introduce the concept of "mercy" killing or euthanasia into Canadian law. They are absolutely inconsistent with the rights guaranteed by sections 7 and 15 of the Charter and are obviously without merit.

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Cruel and Unusual Punishment

The Coalition, with one exception noted below, also endorses the submissions of the Crown on this issue. The Trial Judge should not have entertained the request for a constitutional exemption and, in any event, the facts of this case clearly do not warrant the granting of such an exemption.

The Coalition emphasizes that the interpretation of section 12 of the Charter which the Appellant advocates would offend the rights of persons with disabilities, i.e. the provision of a constitutional exemption necessarily involves a reading of section 12 of the Charter which cannot be reconciled with other Charter provisions and values.

That conflict with the Charter starts with the fact that the Appellant claims his sentence is inappropriate because of the specific circumstances of this case. Those circumstances are characterized as involving him acting out of mercy to end Tracy's pain. It is apparent, therefore, that Tracy Latimer's condition is essential to the Appellant's argument. The bottom line of his contention is that his daughter's situation dictates that he be exempted from the regular Criminal Code sanction for murder.

The direct implications of that reasoning for persons with disabilities are obvious. The Appellant seeks, in effect, 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/or who are perceived to be experiencing unacceptable levels of pain. By necessary effect, those individuals would be deprived of the full protection of the criminal 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 caregivers. If their situation became such that (in the eyes of the caregiver) death was preferable to life, they could be killed and the caregivers would not suffer the full sanction of the criminal law.

Therefore, reading section 12 of the Charter to the effect advocated by the Appellant would directly offend the rights of disabled persons as guaranteed by both section 7 and section 15 of the Charter. In terms of section 7, it is undeniable that Tracy was deprived of her life without any concern for principles of fundamental justice, i.e. the Appellant unilaterally decided to end her life. Similarly, the Appellant's position discriminates against persons with disabilities because, at bottom, it is the fact of Tracy Latimer's disabilities which is said to engage section 12 of the Charter.

The prohibition against discrimination in section 15(1) of the Charter operates no less effectively in relation to disability than it does in relation to race, ethnic origin, religion and the other prohibited grounds of discrimination. It is inconceivable that a court would find a violation of section 12 of the Charter because an accused argued that the race or religion of his victim mitigated the seriousness of his crime. It should likewise be inconceivable that the disability of a victim can mitigate the seriousness of a crime and sentence so as to create a violation of section 12 and force a reduction in sentence.

The Coalition emphasizes that the facts of this case are not unique. Many people live with pain and in circumstances where they are totally dependent on their families or others. Tallis J. A. noted as follows in Latimer No. 1, supra, at pp. 512-513:

In dealing with this aspect of the case learned counsel for the Crown stressed that Tracy's medical condition was not unique. She pointed to the many families that are visited with a similar type of misfortune. Dr. Snyder testified that 1 in 1,000 births involve children with cerebral palsy and 10% of that unfortunate group have severe cerebral palsy. Dr. Dzus, a specialist in orthopaedic surgery limiting her practice mainly to children, testified that in her work at the Kinsmen Children's Centre in Saskatoon, she attended to many children with multiple handicaps similar to Tracy.

It is essential that those individuals receive the full protection of the criminal law and that any interpretation of section 12 of the Charter reflects that imperative.

As described above, the law has always rejected any suggestion that parents have unfettered discretion with respect to the care and treatment of their children. That is doubly so in connection with decisions involving life itself. As McKenzie J. stated in Superintendent of Family and Child Service and Dawson et al (1983), 145 D.L.R. (3d) 610 (B.C.S.C.) at p. 620:

I do not think it lies within the prerogative of any parent or of this court to look down upon a disadvantaged person and judge the quality of that person's life to be so low as not to be deserving of continuance.

(Emphasis added)

See also: E. (Mrs.) v. Eve, supra.

Tracy was a child - a disabled child. She was killed by the very person who was responsible for her care. It is most troubling that the Appellant 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. The Coalition notes that Tracy's condition and her relationship to the Appellant would normally be seen as a negative factor in a crime such as the one involved in this appeal. Significantly, section 718.2 of the Criminal Code contemplates, inter alia, that abuse of a position of trust and authority by an offender shall be considered as an aggravating factor when sentence is imposed. See also: Section 153.1 of the Criminal Code.

The Appellant suggests that the majority of Canadians are outraged by his sentence and that they view it as grossly disproportionate to the crime he committed. In support of this proposition, the Appellant cites letters of support, newspaper articles and media polls. Three points should be noted in relation to the Appellant's submission in this regard. First, this Court obviously should not be swayed by public sentiment, particularly when considering the rights of a minority group. Second, public reaction to the Appellant's sentence is at best divided. For example, the Coalition represents many Canadians who are deeply concerned by the suggestion that the facts of this case might warrant granting a constitutional exemption. (See, for example: Enns, A Voice Unheard: The Latimer Case and People with Disabilities (1999) (Halifax: Fernwood); The Latimer Case: The Reflections of People with Disabilities (1998) (Winnipeg: Council of Canadians with Disabilities)

Third, as noted by Sobsey in "The Media and Robert Latimer" The Latimer Case: The Reflections of People with Disabilities (1998) (Winnipeg: Council of Canadians with Disabilities), the bias of the Canadian news media in its reporting of this case may have significantly contributed to the public "outrage" that the Appellant relies on to support his position. (See also: Janz, "Disabling Images and the Dangers of Public Perception: A Commentary on the Media's "Coverage" of the Latimer Case" (1998), 9 Const. Forum 66.)

The Crown, at paragraphs 117 and 118 of its Factum, suggests that the royal prerogative of mercy continues to be viable in the post-Charter age and that the Court below did not err by taking the royal prerogative of mercy into account when assessing whether section 12 of the Charter was infringed in the circumstances of the appeal.

The Coalition disagrees with the Crown and submits that the royal prerogative of mercy is not a relevant consideration in this matter at all. The suggestion that the Appellant is a candidate for "mercy" collides directly with the rights of disabled persons in precisely the same way as do his arguments about the doctrine of necessity and about cruel and unusual punishment. Any attempt to reduce the consequences of the Appellant's decision to murder his daughter (whether that reduction be by way of applying the doctrine of necessity, relying on section 12 of the Charter or invoking the royal prerogative of mercy) is equally offensive to the dignity, integrity and security of persons with disabilities.

Concluding Comment

The Coalition strongly believes that the arguments advanced on behalf of the Appellant in this case involve a threat to the lives and security of disabled people generally, and to persons with cognitive disabilities in particular. It respectfully urges the Court to resolve this appeal in a fashion which confirms the fundamental rights of persons with disabilities. As Wimmer J. concluded at the end of Mr. Latimer's first trial: "[l]ife was not kind to Tracy but it was a life that was hers to make of what she could". All Canadians are worthy of the protection of the criminal law.

NATURE OF ORDER REQUESTED

  1. The Coalition respectfully submits that the Court should give effect to the arguments advanced in this Factum when adjudicating the issues raised by this appeal and that the appeal should be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Regina, Saskatchewan, this ____ day of April, 2000.

MacPHERSON LESLIE & TYERMAN

Per: __________________________________

Robert G. Richards, Q.C.

Per: __________________________________

Heather D. Heavin

Solicitors for the Intervenors

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TABLE OF AUTHORITIES

Cases Page No.

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 5

B. (R.) v. Children's Aid Society of Metropolitan Toronto, [1995] 1 S.C.R. 315 9

Battlefords and District Co-op v. Gibbs (1994), 116 D.L.R. (4th) 109 (Sask. C.A.) 4

E. [Mrs]. v. Eve, [1986] 2 S.C.R. 388 9,18

New Brunswick (Minister of Health and Community Services) v. B. (R.)
(1990), 70 D.L.R. (4th) 568 (N.B.Q.B.) 8

R. v. Gruenke, [1991] 3 S.C.R. 263 7

R. v. Latimer (1997), 12 C.R. (5th) 71 (Q.B.) 6

R. v. Latimer (No. 1) (1995), 99 C.C.C. (3d) 481 (Sask C.A.) 10, 18

R. v. Lyons, [1987] 2 S.C.R. 309 7

R. v. Morgentaler, [1998] 1 S.C.R. 30 16

R. v. Salituro, [1991] 3 S.C.R. 654 6

R. v. Seaboyer, [1991] 2 S.C.R. 577 7

Rodriguez v. Attorney General of British Columbia, [1993] 3 S.C.R. 519 15

R.W.D.S.U. v. Dolphin Delivery Ltd., [1986] 2 S.C.R. 573 7

Snyder v. Montreal Gazette Ltd., [1988] 1 S.C.R. 494 7

Superintendent of Family and Child Service and Dawson et al (1983),
145 D.L.R. (3d) 610 (B.C.S.C.) 18

Symes v. Canada, [1993] 4 S.C.R. 695 15

Books and Articles

Bayefsky and Eberts, Equality Rights and The Canadian Charter of Rights and Freedoms (1985) (Toronto: Carswell)

Enns, A Voice Unheard: The Latimer Case and People with Disabilities (1999) (Halifax: Fernwood)

Harrison's Principles of Internal Medicine, 13th ed., (1994) (McGraw Hill: Toronto)

Janz, "Disabling Images and the Dangers of Public Perception: A Commentary on the Media's "Coverage" of the Latimer Case" (1998), 9 Const. Forum 66.)

Oliver, "Theories of Disability in Health Practise and Research" Nov. 21, (1998), Vol. 317 British Medical Journal 1446

Smith, Forced Exit: The Slippery Slope From Assisted Suicide to Legalized Murder (1997) (New York: Times Books Random House)

Sobsey, Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? (1994) (Toronto: Paul H. Brookes)

Sobsey, "Disability, Discrimination and the Law" 2(1) Health Law Journal 6

Sobsey, "The Media and Robert Latimer" The Latimer Case: The Reflections of People with Disabilities (1998) (Winnipeg: Council of Canadians with Disabilities)

The Latimer Case: The Reflections of People with Disabilities (1998) (Winnipeg: Council of Canadians with Disabilities)

Appendices

Appendix A - United Nations Convention on the Rights of the Child (Articles 6, 19 and 23)

Appendix B - Criminal Code (ss. 153.1 and 718.2)