Latimer Case Factum 1995

C.A. No. 6515

IN THE COURT OF APPEAL FOR SASKATCHEWAN

IN THE MATTER OF A CONVICTION AND SENTENCE APPEAL BY ROBERT WILLIAM LATIMER, CONVICTED ON NOVEMBER 16, 1994, BY THE HONOURABLE MR. JUSTICE C. R. WIMMER, SITTING WITH A JURY, IN THE COURT OF QUEEN'S BENCH, BATTLEFORD, SASKATCHEWAN, FOR THE OFFENCE THAT HE "ON OR ABOUT THE 24TH DAY OF OCTOBER A.D. 1993 AT WILKIE DISTRICT IN THE PROVINCE OF SASKATCHEWAN DID COMMIT SECOND DEGREE MURDER ON THE PERSONS OF TRACY LYNN LATIMER, CONTRARY TO SECTION 235(1) OF THE CRIMINAL CODE".

BETWEEN:

HER MAJESTY THE QUEEN,

RESPONDENT

-and-

ROBERT WILLIAM LATIMER

APPELLANT

- and -

PEOPLE IN EQUAL PARTICIPATION, INC.,
COUNCIL OF CANADIANS WITH DISABILITIES
and SASKATCHEWAN VOICE OF THE HANDICAPPED

INTERVENORS

FACTUM OF THE INTERVENORS

COUNCIL OF CANADIANS WITH DISABILITIES

and SASKATCHEWAN VOICE OF THE HANDICAPPED

MacPherson, Leslie & Tyerman
Barrister and Solicitors
1500 - 1874 Scarth Street
Regina * * * Sask.
S4P 4E9

TABLE OF CONTENTS

1. PROCEDURAL BACKGROUND

2. OVERVIEW OF POSITION

3. FOUNDATION OF THE APPELLANTS ARGUMENTS

4. SIGNIFICANCE OF THE CHARTER

5. SECTION 7 OF THE CHARTER

6. SECTION 15 OF THE CHARTER

7. CONSIDERATIONS OF APPELLANTS ARGUMENTS

8. ORDER DESIRED

I. PROCEDURAL BACKGROUND

1. Council of Canadians with Disabilities ("CCD") is a national not for profit umbrella organization which represents people with a variety of disabilities.

2. Saskatchewan Voice of the Handicapped ("the Voice") is a non-profit cross disability organization of and for people with disabilities. It has approximately 650 members in the Province and has been operating since 1973. If affords people with disabilities an opportunity to speak for themselves on issues affecting their lives.

3. CCD and the Voice are familiar with, and understand, the difficulties faced by a family which includes a child with serious disabilities. However, they believe that the vulnerability of persons with disabilities requires that they receive the full protection of the law, including the criminal law.

4. Persons with disabilities across Canada are extremely concerned about the consequences of the legal arguments being advanced in this appeal. The consider that the arguments in the Amended Notice of Appeal and Factum filed on behalf of the Appellant are a threat to the safety and well-being of persons with disabilities. They are anxious that the rights and interests of people with disabilities be properly reflected in the resolution of this case.

5. By reasons dated February 20, 1995, Sherstobitoff J. A. granted CCD and the Voice intervenor status in this matter with leave to "address any matters of law of concern to disabled persons which are not addressed by the Crown." This Factum is filed pursuant to that decision.

   II. OVERVIEW OF POSITION

6. It is readily apparent that the majority of the arguments raised in the Appellant' Amended Notice of Appeal have direct and significant implications for persons with disabilities. The legal principles which the Appellant invites this Court to adopt cannot be restricted to the facts of this case. They would, by definition, operate and apply to the circumstances of a large number of disabled individuals.

7. CCD and the Voice submit that the Appellant's arguments must be considered in relation to the constitutional rights of Tracy Latimer and of other disabled persons which they would necessarily affect. More specifically, CCD and the Voice submit that the rights of disabled individuals, as enshrined in sections 7 and 15 of the Charter, necessarily defeat the arguments set out as grounds 2 to 6 of the Amended Notice of Appeal. The arguments advanced by 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.

8. CCD and the Voice also contend 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 precisely the sort of action which demands such intervention. The Appellant's arguments would deny the state a role in protecting those children who most require assistance.

9. In the light of the foregoing considerations, CCD and the Voice say that the Appellant's arguments cannot be sustained.

   III. FOUNDATION OF THE APPELLANT'S ARGUMENTS

10. The grounds of appeal outlined at points 2 to 6 of the Amended Notice of Appeal, and as developed in the Appellant's Factum, all turn either expressly or by necessary implication on the fact of Tracy Latimer's disability. An examination of those grounds of appeal readily confirms the point:

    Ground 2 - That the learned trial judge erred in law in failing to leave necessity as an issue for the jury - The Appellant outlines the "evidence relevant to the issue of necessity" at paragraphs 82 and following of his Factum. The striking feature of that outline is that it is simply a description of Tracy Latimer's physical and intellectual condition. The essence of the Appellant's argument is that it was necessary to end hi daughter's life because of that condition. In the result, his argument is intimately and inextricably bound up with Tracy Latimer's status as a disabled child.

    Ground 3 - That the learned judge erred in law in failing to allow the jury to decide the case on what they felt was just, as opposed to requiring them to follow black letter law, irrespective of what their conscience told them was the right decision - The unspoken essence of this line of argument is to effect that Tracy Latimer's condition and circumstance would have lead the jury to a different verdict if it had not been confined by the law as explained by the Trial Judge. Again, it is apparent that the Appellant considers that his daughter's physical condition i.e. her disability, would be central or significant to the deliberation of the jury.

    Ground 4 - That the learned judge erred in law in not charging the jury that they could find that Robert William Latimer had the legal right to decide to commit suicide for his daughter, by virtue of her complete absence of physical and intellectual abilities - The argument in connection with this ground of appeal is expressly related to Tracy Latimer's disability. While it is framed in terms of the child's inability to end her own pain and the alleged inequity of that situation, the Appellant's submission is nonetheless entirely dependant on the fact f his daughter's disability.

    Ground 5 - That in the alternative, the learned trial Judge erred in law in not holding that the minimum sentence for murder on the facts of this case is a cruel and unusual punishment, contrary to s. 12 of the Charter, such that a constitutional exemption should be granted with respect to the sentence imposed - In developing his argument on this point, the Appellant characterizes his daughter's murder as a "mercy killing" motivated by the desire to end the suffering of a loved one. Again, it can be seen that the argument turns on Tracy Latimer's physical condition, i.e. her disability.

    Ground 6 - That the sentence imposed by the learned trial Judge is greater than is warranted or necessary considering the facts of the case and the accused's background - The argument on this point too depends fundamentally on the fact of Tracy Latimer's disability. Stripped to its essentials, the Appellant's position is that his sentence I too severe because the murder in question involved ending the life of a disabled child who was suffering from those disabilities.

11. In the result, it can be seen that the Appellant' position, as expressed in grounds of appeal 2 through 6, depends on the nature and circumstance of Tracy Latimer's condition. That condition, as described and relied upon by the Appellant, is nothing more and nothing less than the child's disability itself.

12. CCD and the Voice note that, during the argument of the application for leave to intervene in this matter, counsel for the Appellant contended that this case is not about disabilities or persons with disabilities. Rather, it was described by counsel as being about the termination of a life of suffering. CCD and the Voice submit that no such distinction is possible. While Tracy Latimer's condition had deteriorated in the months before her death, there is no meaningful way to disentangle her pain for the cerebral palsy which was its ultimate cause. The consequences of her condition cannot be separated from the condition itself. This is very much a case about the rights of persons with disabilities.

    IV. SIGNIFICANCE OF THE CHARTER

13. The Charter has assumed a pervasive impact on the overall growth and content of the law. It is now well established, for example, that the common law should develop in accordance with Charter principles. Thus in R. v. Salituro, [1991] 3 S.C.R. 654. Iacobucci, J., on behalf of the Supreme 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, [1992] 2 S.C.R. 577;

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

14. It is also settled that, where the proper interpretation of a statue is an issue, the values embodied in the Charter must be given preference over an interpretation which would be inconsistent with them. That approach is not available where the statutory language is clear. However, it must be used to resolve ambiguity.

    Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513 at p. 558;

    Slaight communications Inc. v. Davidson, [1989] 1 S.C.R. 1038;

    R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606.

15. Indeed, the Supreme Court has even said that the content of specific Charter rights themselves is not to be determined in isolation from 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.

16. CCD and the Voice submit that the broad significance and influence of the Charter, as described above, is highly relevant to the resolution of this appeal. The arguments reflected in grounds 2, 3, and 4 of the Amended Notice of Appeal invite the Court to develop new common law principles or to substantially extend existing common law doctrine. The argument based on grounds 5 and 6 of the Amended Notice of Appeal involves a particularly aggressive interpretation of section 7 and 12 of the Charter. CCD and the Voice submit that none of those arguments can be considered in isolation from their wider Charter implications.

17. The constitutional entitlements of Tracy Latimer and 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 7 or 12 of the Charter can be disengaged from other Charter interests.

18. CCD and the Voice submit that the arguments advanced by the Appellant collide directly with the substance of sections 7 and 15(1) of the Charter and the values they reflect. The legal principles which the Appellant asks this Court to adopt will necessarily involve a denial of life and security of the person as guaranteed by section 7 of the Charter. They will also deny freedom from discrimination on the basis of disability as guaranteed by section 15(1). Moreover, as indicated above, the Appellants' arguments would exclude the state from its deeply established role as ultimate defender of the best interests of children. In the result, it is respectfully submitted that the Appellant's arguments cannot be sustained.

    V. SECTION 7 OF THE CHARTER

19. Section 7 of the Canadian Charter of Rights and Freedoms provides as follows:

    Everyone has the right to life, liberty and security of the person and the right not to be derived thereof except in accordance with the principles of fundamental justice.

20. Two considerations must be satisfied in order to establish a violation of section 7. First, there must be a deprivation of "life, liberty [or] security of the person". Second, that deprivation must be inconsistent with "the principles of fundamental justice".

    R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387 at p. 401.

    VI. SECTION 15 OF THE CHARTER

21. Section 15 of the Canadian Charter of Rights and Freedoms reads as follows:

    15(1) Every individual is equal before and under the Law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age, on mental or physical disability.

22. The purpose of section 15 is to ensure equality in the formulation and application of laws and to promote 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".

    See: Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at p. 171.

23. The nature of the legal analysis relevant to a section 15 problem was neatly summarized by lamer C. J. in R. v. Swain, [1991] 1 S.C.R. 933 at p. 992

    The court must first determine whether the claimant has shown that one of the four basic equality rights has been denied (i.e. equality before the law, equality under the law, equal protection of the law and equal benefit of the law). This inquiry will focus largely on whether the law has drawn a distinction (intentionally or otherwise) between the claimant and others, based on personal characteristics. Next, the court must determine whether the denial can be said to result in "discrimination". This second inquiry will focus largely on whether the differential treatment has the effect of imposing a burden, obligation or disadvantage not imposed upon others or of withholding or limiting access to opportunities, benefits and advantages available to others. Furthermore, in determining whether the claimant's s. 15(1) rights have been infringed, the court must consider whether the personal characteristic in question falls within the ground enumerated in the section or within an analogous ground, so as to ensure that the claim fits within the overall purpose of s. 15 - namely, to remedy or prevent discrimination against groups subject t stereotyping, historical disadvantage and political and social prejudice in Canadian society.

    See also: Andrews v. Law Society of British Columbia, supra;

    Symes V. Canada, [1993] 4 S.C.R. 695 at pp. 753 to 758.

24. It should be noted that animus is relevant to discrimination under section 15(1). A violation of the section will be found even if there is no intention to discriminate. The Charter is aimed at prohibiting discriminatory effects as well as discriminatory intention.

    See: Andrews v. Law Society of British Columbia, supra., at p. 551;

    Symes v. Canada, supra., at p. 756.

    VII. CONSIDERATION OF APPELLANT'S ARGUMENTS

    A. That the learned judge erred in law in failing to leave necessity as an issue for the jury

25. CCD and the Voice agree with, and endorse, the submissions of the Attorney General to the effect that the defence of necessity, as established by the Supreme Court of Canada, does not arise on the facts of this case. They absolutely reject the notion that it is "necessary" to terminate the life of persons in Tracy Latimer's condition. They contend that everyone, disabled or non-disabled, must enjoy the protection of the law.

26. CCD and the Voice submit that any attempt to extend the doctrine of necessity to the circumstances of this case would offend the Charter rights of disabled persons. That impact can be readily seen by examining the logic of the Appellant's position.

27. As discussed above at paragraph 10, the circumstances of this appeal which are said to engage the doctrine of necessity are 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 where disabled individuals must deal with pain or difficult circumstances. Further, there is no point of principle that would allow the availability of the defence to be restricted to "extreme" cases.

28. All of that has one inevitable consequence. The criminal law sanction for murder will not operate effectively 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 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 and intellectual condition pf the victim means that disabled persons will be deprived pf the full protection of the criminal law and that they will be so deprived because of their disabilities.

29. The unique vulnerability of disabled people that necessarily flows from the Appellant's argument involves a conflict with the Charter. Section 7 guarantees "everyone", disabled or non-disabled, "life" and "security of the person" and the right not to be deprived thereof 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 care giver with the unilateral authority to decide whether a disabled persons should live or die does not comport with principles of fundamental justice. Indeed, it is absolutely inconsistent with those principles.

30. Similarly, 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 anyone else. There is also no doubt that such differential treatment would be discriminatory in even the most extreme meaning of that concept.

31. 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 care givers of those persons believe about the merits of their actions. Constitutional rights cannot be dissolved by good intentions. Tracy Latimer's death is made no less significant by the suggestion that the Appellant acted out of noble motives.

32. That point was confirmed by McLellan J. in Re Minister of Health and Community S and B. et al (1990), 70 D.L.R. (4th) 568 (N.B.O.B.). 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. He wrote as follows at p. 571:

    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.

    See also: Richard B. and Beena B. v. Children's Aid Society of Metropolitan Toronto, S.C.C. #23298 , January 27, 1995.

33. In the result, it can be seen that the extension of the law of necessity advocated by the Appellant involves an inevitable conflict with Charter 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.

    B. That the learned Judge erred in law in failing to allow the jury to decide the case on what they felt was just, as opposed to requiring them to follow black letter law, irrespective of what their conscience was the right decision.

34. CCD and the Voice agree with the submissions of the Attorney general on this point. They submit that R. v. Morgentaler (1989), C.R. (3d) 1 (S.C.C.) is a full response to the Appellant's position.

35. In addition, CCD and the Voice submit that the alteration of the established law which the Appellant advocates would offend the Charter entitlements of persons with disabilities. The public debate and media coverage surrounding this case has demonstrated the unfortunate and bitter reality that out community places less value on the life of a disabled persons than it does on the life of a non-disabled. That reality, if left ungoverned by the applicable legal rules as stated by a trial judge, could easily lead a jury to deny the full protection of the law to persons with disabilities. Indeed, that is the working assumption on which the Appellant's arguments is based. He obviously believes that, in light of his daughter's disability, he would have been punished less harshly hif the jury had been left to resolve the case on its own.

36. In R. v. Morgentaler, supra, Dickson C. J. rejected the argument advanced here by the Appellant. In doing so he used what he called a "harsh but telling" example to illustrate his concerns. He referred to the dangers involved in a situation where a jury "fuelled by the passions of racism" could be told that they need not apply the law against murder to a white man who had killed black man. CD and the Voice submit 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 interest of the disabled, to believe that the handicapped status of a victim was in any way relevant to the culpability of the accused.

37. Accordingly, it can be seen that the Appellant's argument on this point would offend the section 7 and section 15 rights of disabled persons. Allowing a jury to simply "decide the case on what they felt was just" would involve real prejudice to the interests of disabled persons and would diminish the protection which the criminal law provides to them. Given the prevailing public attitude toward the worth and status of persons with disabilities, there is a most serious risk that a jury could be persuaded to discount the gravity of an offence simply because of the handicapped status of the victim. That would result in the same sort of denial of life and security of the person and the same sort of denial of equality as was discussed above in paragraphs 29 to 32.

38. As a consequence, it is submitted that the Charter interests of persons with disabilities stand directly in the path of the Appellant's argument on this point.

    C. That the learned trial Judge erred in law in not charging the jury that they could find that Robert Latimer had the legal right to decide to commit murder for his daughter, by virtue of her complete absence of physical and intellectual abilities.

39. CCD and the Voice endorse submissions of the Attorney General on this issue. They agree that, given the nature and extent of her mental disability, there can be no question of Tracy Latimer committing "suicide". Further, they agree that the decision of the Supreme Court of Canada in Rodriguez v. A.G. Canada, [1993] 3 S.C.R. 519 presents an insurmountable problem for the Appellant.

40. In addition, CCD and the Voice stress that the direct implication and consequence of the Appellant's argument would be a denial of the Charter rights of persons with disabilities. 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 swill 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. That circumstance involves a denial of their rights to life and security of the person as guaranteed by the section 7 of the Charter and to equality as guaranteed by section 15. Canadian law has never recognized or accepted the kind of open-ended parental authority claimed by the Appellant.

    See: Richard B. and Beena B. v. Children's Aid Society of Metropolitan Toronto, supra.

    D. That in the alternative, the learned trial Judge erred in law in not holding that the minimum sentence and 10 year period of parole ineligibility for murder is, on the facts of this case, contrary to principles of fundamental justice and is a cruel and unusual punishment, in violation of sections 7 and 12 of the Charter, and that the appropriate remedy under section 24 of the Charter is to grant a constitutional exemption to the accused.

    E. That the sentence imposed by the learned trial Judge is greater than is warranted or necessary, consider the facts of the case and the accused's background. If the Court should grant a constitutional exemption from sections 235 and 742 of the Criminal Code, the Court should impose a much lesser sentence.

41. CCD and the Voice submit that the sentence imposed on the Appellant pursuant to section 742(b) of the Criminal Code does not violate his rights under either section 7 or 12 of the Charter. They say as well that the Appellant's arguments cannot be reconciled with the majority decision in Rodriguez, supra.

42. CCD and the Voice also submit that the interpretation of section 7 and 12 of the Charter which the Appellant advocates would offend the rights of persons with disabilities, i.e. to find a violation of the Appellant's rights and provide a constitutional exemption on the facts of this appeal would entail a reading of sections 7 and 12 which cannot be reconciled with other Charter provisions and values.

43. The Appellant emphasizes in his argument that his sentence is inappropriate because of "the facts of this case". Those facts are characterized as "a mercy killing driven by an honest desire to painlessly end the agony of a loved one". 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 circumstance dictates that he be exempted from the regular Criminal Code sanction for murder.

44. The direct implications of that reasoning for the interests of persons with disabilities are obvious. 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 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 in the hands of their parents or care givers. If their situation became such that (in they eyes of the care giver) death was preferable to life, they could be killed.

45. 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 Services and Dawson et al (1993), 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 persons and judge the quality of that person's life to be so low as not to be deserving of continuance.

    See also: E. (Mrs.) v. Eve, [1986] 2 S.C.R. 388.

46. CCD and the Voice submit 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. It is essential that those individuals receive the full protection of the criminal law and that any interpretation of section 7 and 12 of the Charter reflect that imperative.

47. Reading either section 7 or section 12 of the Charter to the effect advocated by the Appellant would directly offend the rights of disabled persons as guaranteed by section 7 itself and as guaranteed by section 15 of the Charter. In terms of section 7, the Appellant's argument focuses on his own rights but completely ignores those of his daughter. It seems undeniable that she was deprived of her life without any concern for principles of fundamental justice, i.e. the Appellant unilaterally, and on his own initiative, decided to end her life. Similarly, the effect of the Appellant's argument is to discriminate against persons with disabilities because, at bottom, it is the fact of Tracy Latimer's disability which is said to engage the terms of sections 7 and 12 of the Charter.

48. 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 7 or 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 so as to create a violation of section 7 and 12. It follows that the Appellant's arguments should be rejected.

    VIII. ORDER DESIRED

49. CCD and Voice respectfully submit that the Court should give effect to the arguments advanced in this Factum when adjudicating the submissions of the Appellant. It is submitted that the submissions based on grounds 2 to 6 of the Amended Notice of Appeal should not be accepted.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

DATED at Regina, Saskatchewan, this 22nd day of February, 1995.

MacPHERSON LESLIE & TYERMAN

Per:_____________________

Robert G. Richards
Solicitors for the Intervenors,
Council of Canadians with Disabilites and
Saskatchewan Voice of the Handicapped

This document was delivered by

MacPherson Leslie & Tyerman
Barrister and Solicitors
1500, 1874 Scarth Street
Regina, Saskatchewan S4P 4E9

whose address for service is as above

Lawyer in charge of the file: R.G. Richards

Telephone: 306-347-8000; Fax: 306-352-5250

TABLE OF AUTHORITIES

Andrews v. Law Society of British Columbia, [1989] 1 S.C.R. 143 at p 171

E. (Mrs.) v. Eve [1986] 2 S.C.R. 38

Hills v. Canada (Attorney General), [1988] 1 S.C.R. 513

R. v. Beare; R. v. Higgins, [1988] 2 S.C.R.387

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

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

R. v. Morgentaler, (1989), C.R. (3d) 1 (S.C.C.)

R. v. Nova Scotia Pharmaceutical Society, [1992] 2 S.C.R. 606

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

R. v. Seaboyer, [1992] 2 S.C.R. 577

R. v. Swain, [1991] 1S.C.R. 933

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

Re Minister of Health and Community Services and B. et al (1990), 70 D.L.R. (4th) 568 (N.B.Q.B.)

Richard B. and Beena B. v. Children's Aid Society of Metropolitan Toronto, S.C.C. #23298, January 27, 1995

Rodriguez v. A. G. Canada, [1993] 3 S.C.R. 519

Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038

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

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

Symes v. Canada, [1993] 4 S.C.R. 695 at pp. 753 to 758