Latimer Case Factum 1997

C. A. No. 7413/7416

THE COURT OF APPEAL FOR SASKATCHEWAN

IN THE MATTER OF A CONVICTION APPEAL BY ROBERT W. LATIMER, CONVICTED ON NOVEMBER 5, 1997, AND SENTENCED ON DECEMBER 1, 1997 BY THE HONOURABLE MR. JUSTICE G. E. NOBLE, SITTING WITH A JURY, IN COURT OF QUEEN'S BENCH, BATTLEFORD, SASKATCHEWAN, AND IN THE MATTER OF AN APPEAL BY THE ATTORNEY GENERAL FOR THE PROVINCE OF SASKATCHEWAN WITH RESPECT TO THE SENTENCE PASSED BY THE HONOURABLE MR. JUSTICE G.E. NOBLE, ON A CHARGE THAT ROBERT LATIMER "ON OR ABOUT THE 24TH DAY OF OCTOBER 1993 AT THE WILKIE DISTRICT, IN THE PROVINCE OF SASKATCHEWAN, DID UNLAWFULLY CAUSE THE DEATH OF TRACT LATIMER AND DID THEREBY COMMIT THE OFFENCE OF SECOND DEGREE MURDER CONTRARY TO SECTION

235(1) OF THE CRIMINAL CODE";

AND WAS CONVICTED AND SENTENCED ON THE IST DAY OF DECEMBER, A.D. 1997 TO IMPRISONMENT OF TWO YEARS LESS ONE DAY, WITH ONE YEAR BEING SERVED IN THE CORRECTIONAL CENTRE, AND UPON RELEASE THAT HE BE PLACED ON PROBATION FOR THE REMAINING PERIOD.

BETWEEN:

HER MAJESTY THE QUEEN,

APPELLANT/RESPONDENT

- and -

ROBERT W. LATIMER,

RESPONDENT/APPELLANT

- and -

COUNCIL OF CANADIANS WITH DISABILITIES,
SASKATCHEWAN VOICE OF PEOPLE WITH DISABILITIES,
CANADIAN ASSOCIATION FOR COMMUNITY LIVING,
PEOPLE IN EQUAL PARTICIPATION,
DAWN CANADA: DISABLED WOMEN'S NETWORK CANADA, and
PEOPLE FIRST OF CANADA

INTERVENORS

FACTUM OF THE INTERVENORS

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

TABLE OF CONTENTS

I. INTRODUCTION

II. JURISDICTION AND STANDARD OF REVIEW

III. FACTS

IV. POINTS IN ISSUE

V. ARGUMENT

VI. ORDER DESIRED

VII. TABLE. OF AUTHORITIES

VIII. APPENDICES

I. INTRODUCTION

1. This case raises significant issues about the rights of people with disabilities. Both the conviction appeal and the sentence appeal have direct and very threatening consequences for disabled individuals. It is essential that both appeals be resolved in a fashion which clearly and strongly affirms the rights of the thousands of disabled Canadians whose dignity and security has been put in jeopardy by the arguments advanced on behalf of Mr. Latimer.

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") are organizations which represent the rights of people with disabilities across Canada. Their principal mandates are to enhance and promote the equality and dignity of people with disabilities and to educate the public about such matters. They are intimately familiar with the joys and struggles faced by the families of severely disabled children.

3. The Coalition intervenes in both the sentence appeal and the conviction appeal. It does so on the basis of an order of this Court. This Factum addresses the issues in both appeals.

   II. JURISDICTION AND STANDARD OF REVIEW

4. The jurisdiction of this Court and the relevant standards of review are set out in the factums filed on behalf of the Crown.

   III. FACTS

5. The Coalition accepts the facts as stated by the Crown in the factums filed on its behalf in the conviction appeal and the sentence appeal. The Coalition submits that the pain Tracy may or may not have experienced is irrelevant to this appeal. However, the Coalition draws the Court's attention to the portions of the transcript dealing with Laura Latimer's journal entries in the communications book which went between the North Battleford Developmental Centre and Tracy's home. These journal entries are specially revealing with respect to the nature of Tracy Latimer' s life.

6. After Tracy' s back surgery on August 27, 1992 she was back at the Developmental Centre by September 17, 1992. The Coalition refers to the journal entries commencing on October 8, 1992 and continuing on through October 19, 1993:

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

    

7. On Tracy's application form for a permanent group home placement, which Mrs. Latimer completed in the fall of 1993, Mrs. Latimer made reference to the following habits of Tracy:

   Usually sleeps through the night, though also naps a couple of times a day. (Transcript, page 581, lines 18-24);

   Likes to sit by bonfire. (Transcript, page 582, lines 1-3);

   Likes to be rocked. (Transcript, page 582, lines 1-3);

8. The Coalition also emphasizes that Tracy Latimer's condition, and the surgeries she was undergoing were not unique to Tracy, but were common in individuals with severe forms of cerebral palsy. Dr. Dzus testified that: 70% - 75% of totally involved spastic quadraparetic children, like Tracy, will develop scoliosis. And, 75% of the totally involved, totally dependent children, will also develop a subluxated or dislocated hip over their lifetime. (Transcript, page 309, lines 1-20).

   IV. POINTS IN ISSUE

9. The submissions of the Coalition are restricted to the issues identified below:

   Whether the Trial Judge erred in failing to leave necessity as an issue for the jury;

   Whether the Trial Judge erred in granting Mr. Latimer a constitutional exemption from the mandatory provisions of section 235(1) and section 745(c) of the Criminal Code; and

   Whether the Trial Judge erred in failing to tell the jury of the punishment provided for second degree murder.

10. The Coalition endorses the Crown's argument that the decision in R v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.) ("Latimer No. 1") is dispositive of this appeal. However, it makes no submissions of its own on that point.

    V. ARGUMENT

    A. Introduction

11. As noted, this case directly concerns the rights of disabled persons. Stripped to its bare essentials, 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 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 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. There can be no doubt that the murder of a child is the sort of action which demands such intervention. Mr. Latimer's arguments would deny the community a role in protecting those children who most require assistance.

14. In light of these considerations, the Coalition respectfully submits that the sentence appeal should be allowed and that the conviction appeal, at least to the extent it s based on the doctrine of necessity, should be dismissed.

    B. The Circumstances of People with Disabilities

15. 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.

16. Society attributes negative characteristics to disabled persons. These negative attitudes are reinforced by actions, attitudes and beliefs which often characterize disabled persons as being less than human. The perception that disabled persons have lives that are of less value than the lives of individuals belonging to the non-disabled majority reinforces rationalizations for treating disabled persons prejudicially.

17. As concluded by Sobsey D., in "Chapter 11: "Changing Attitudes that Disinhibit Violence" in Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? (Toronto: Paul H. Brookes, 1994) (at p. 313):

    A number of researchers believe that dehumanization contributes substantially to the abuse of people with disabilities. Sullivan, Vernon, and Scanlan (1987) assert that the view of children with disabilities as less that human permits them to be abused. Garbarino (1987) suggests that stigmatization associated with disability licenses and validates abuse in the minds of offenders.

    (Tab A)

18. Persons with disabilities, and particularly those with severe and multiple disabilities, are at a greater risk of being victimized. The physical challenges and/or communication barriers that these individuals face as a result of their disability, often requires them to be more dependent on their care-givers, educators and family, and thus makes them even more vulnerable to abuse.

    (Tab B)

19. 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 disabilitv, 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)

20. Lepofsky, M.D. and Bickenbach, J.E. in "Equality Rights and the Physically Handicapped", Bayefsky and Eberts, Equality Rights and The Canadian Charter of Rights and Freedoms (Toronto: Carswell, 1985) 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.

21. This same issue, in the context of mental disability, was the subject of a comment by Vickers, D. and Endicott, O. in "Mental Disability and Equality Rights", Bayefsky and Eberts, supra 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)

22. 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 Mr. Latimer's conviction has engendered. In Andrews v. Law Society of British Columbia [1989] 1 S.C.R. 143, at p. 171, the Supreme 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 being equally deserving of concern, respect and consideration.

23. This Court endorsed that perspective in the context of human rights legislation in Canadian Odeon Theaters v. Huck, [1985] 3 W.W.R. 717. Where Vancise J.A. very appropriately refered to the U.N. Declaration of Rights of Disabled Persons at p. 736:

    . . . The protection and enforcement of human rights has increasingly become an important national and international goal. .. . On 9th December 1975 the United Nations General Assembly proclaimed Resolution 347 (xxx) Declaration of Rights of Disabled Persons. Sections 3 and 8 of that resolution provide as follows: "3. Disabled persons have the inherent right to respect for their human dignity. Disabled persons, whatever their origin, nature and seriousness of their handicaps and disabilities, have the same fundamental rights as their fellow citizens . . ."

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" and noted that she had "a very severe form of cerebral palsy" caused by "extensive brain damage at the time of her birth" (Transcript, 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 [sic]." (Transcript, page 750, lines 15-17). In his charge, Noble J. also 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. (Transcript, pages 756-764). He went on to refer to Mr. Latimer's act of killing his daughter by using the benign term of "putting Tracy to sleep". (Transcript, 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" (R. v. Latimer (1997), 12 C.R.(5th) 71 at p. 122).

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.

    C. The Significance of Charter Rights

26. 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.

27. 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, 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,

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

28. The relationship between the Charter and the common law is directly relevant to Mr. Latimer'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.

29. The Supreme 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.

30. Mr. Latimer's position on the sentence appeal involves a particularly aggressive interpretation of section 12 of the Charter. As a result, the Coalition submits that his arguments in that regard must also be examined for their 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.

31. The Coalition reiterates that the constitutional entitlements of Tracy Latimer, and of disabled persons generally, must be weighed in connection with each of Mr. Latimer's submissions. A substantial re-invention of common law rules, such as that advocated by Mr. Latimer, 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.

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.

    D. The Position of Children

33. Mr. Latimer'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:

    And it's hard for us, I suggest, to think about what Tracy would want, but the one thing I suggest that we have to not forget, when someone makes the comment, who is Bob Latimer to make a decision for Tracy, who is Laura Latimer to say that she thinks that Tracy would be better off put to sleep, like who are they to make that decision for Tracy? Well, those are the same people that we're saying can make a decision about a medical procedure that might be viewed by them to be absolute torture. They are - they have the power to decide whether or not she has to survive longer, in order to be inflicted with various medical procedures. It certainly -every medical procedure that happens to this child requires their acquiescence, their consent, their decision, and so I suggest we shouldn't be so quick to suggest that they don't have the right to make decisions about Tracy's life. That's for you to decide. (Transcript, page 682, lines 5-23)

34. The Coalition submits that this view is wrong and runs counter to basic legal and social values. That point was eloquently made by McLellan J. in New Brunswick (Minister of Health and Community Services) v. B. fR.) (1990), 70 D.L.R. (4th) 568 (N.B.Q.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 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.

35. The same perspective is evident in the Supreme 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)

36. Significantly, the U.N. Convention on the Rights of the Child (UNRC) confirms the fundamental proposition that children have rights which exist and must be determined independently of the views, however well intended, of their parents. In relevant part, the Convention provides as follows:

    Article 6

    1. States Parties recognize that every child has the inherent right to life.
    2. States Parties shall ensure to the maximum extent possible the survival and development of the child

    Article 19

    1. States Parties shall take all appropriate legislative, administrative, social and educational measures to protect the child from all forms of physical or mental violence, injury or abuse, neglect or negligent treatment, maltreatment or exploitation, including sexual abuse, while in the care of parent(s), legal guardian(s) or any other person who has the care of the child.

    Article 23

    1. States Parties recognize that a mentally or physically disabled child should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance, and facilitate the child's active participation in the community.

    (Tab C)

37. 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. It absolutely rejects any suggestion that parents and other caregivers are entitled to decide whether disabled children should live or die.

    E. The Issue of Pain

38. The Coalition takes issue with the efforts made on Mr. Latimer's behalf to characterize these proceedings 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 these appeals.

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. The facts relevant to this issue are summarized at paragraph 5, above. 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. 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 these appeals, it is simply not credible to suggest that pain and disability are t~ fully separate matters. They are not.

41. Finally, and 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 arguments for a moment if Tracy had been an abled bodied and mentally competent child experiencing severe pain. It is submitted that Tallis J.A. was entirely correct when he wrote as follows in Latimer No. 1 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)

42. 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 perception of the impact of pain on the other person's quality of life. Pain is entirely subjective. The point is clearly made in Harrison 's Principles of Internal Medicine, 13th ed., (1994) editors, Isselbacher K. J., Braunwald E., Wilson J., Martin J., Fauci A., & Kasper D., (McGraw Hill: Toronto), in Part 11: Cardinal Manifestations of Disease, Section 1: Pain: Pathophysiology and Management, by Martin J., and Fields H.:

    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 an 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. . . (pp. 50-51)

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.

    F. Assessing the Ouality of the Lives of People with Disabilities

44. Mr. Latimer's arguments, at bottom, rest 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 point 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.

45. It is submitted that no one, including a parent, guardian, spouse, relative, care-giver 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."

     

    (Tab D)

46. The non-disabled majority is not in a position to experience disability. This inability is often translated into a collective mythology that persons with disabilities live tragic lives, marked by deprivation and suffering. This is not the case. The loss of a nimble or responsive body is not dehumanizing. Disabled persons do not perceive themselves as different, deprived or less normal that other members of society merely because their physical bodies do not function in the same way as the majority of non-disabled persons. Pain is but one physical manifestation of the varying physical condition.

47. 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, para 45. The study involved caregivers and their patients who were ventilator-assisted (required a machine to keep them breathing). The care-givers 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 care-givers 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.

48. Tracy Latimer's life, like the life of any person, must be looked at in' its entirety. Neither Tracy' s physical condition nor her pain were determinative of her quality of life. Tracy had cerebral palsy. She was reliant on a wheel chair. She enjoyed 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 under went 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.

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.

    G. Deterrence

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

51. Tracy Latimer's situation was not unique. Many, many individuals live in circumstances where they are dependent on parents or other care-givers. Both the arguments about "necessity" advanced by Mr. Latimer, 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.

52. The Coalition emphasizes that scores of disabled individuals across Canada feel fear because of the Trial Judge's ruling on 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.

    H. Consideration of Mr. Latimer's Arguments

    1. The Defence of Necessity

53. The Coalition agrees with, and endorses, the submissions of the Crown 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. 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.

54. 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 Mr. Latimer's position.

55. 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 where disabled individuals must deal with the 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.

56. 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 and 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.

57. The unique vulnerability of disabled people that necessarily flows from Mr. Latimer's argument involves a conflict with the Charter. Section 7 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.

58. 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 everyone else. There is also no doubt that such differential treatment would be discriminatory on any meaning of that concept.

59. 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 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 Mr. Latimer acted out of noble motives.

60. The Coalition submits that the reasoning of the Supreme Court of Canada in Rodriguez v. Attorney General of British Columbia (1993), 85 C.C.C. (3d) 15 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 pp. 61-73:

    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. 61) . . . Section 241(b) has as its purpose the protection of vulnerable we 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 not-withstanding 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. 69) . . .

    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 secondly, there is no certainty that abuses can be prevented by anything less than a complete prohibition. (p. 73).

    (emphasis added)

61. 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 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."

    2. Cruel and Unusual Punishment

62. The Coalition, with one exception noted below, endorses the submissions of the Crown with respect to the sentence appeal. It agrees that the Trial Judge should not have entertained the request for a constitutional exemption and submits that, in any event, the facts of this case clearly do not warrant the granting of such an exemption.

63. The Coalition emphasizes that the interpretation of section 12 of the Charter which Mr. Latimer 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.

64. Mr. Latimer says in his argument that his sentence is inappropriate because of "the facts of this case". Those facts are characterized as an act of mercy aimed at ending pain. It is apparent, therefore, that Tracy Latimer's condition is essential to Mr. Latimer'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.

65. The direct implications of that reasoning for persons with disabilities are obvious. Mr. Latimer 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 care givers. If their situation became such that (in the eyes of the care giver) death was preferable to life, they could be killed and the care-givers would not suffer the consequences.

66. Reading section 12 of the Charter to the effect advocated by Mr. Latimer 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. Mr. Latimer unilaterally, and on his own initiative, decided to end her life. Similarly, the effect of Mr. Latimer's is to discriminate against persons with disabilities because, at bottom, it is the fact of Tracy Latimer's disabilities which engages section 12 of the Charter.

67. 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.

68. 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. I 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.

69. 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 perogative 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)

    E (Mrs.) v. Eve, supra.

70. The Coalition notes that Tracy's condition and relationship to Mr. Latimer would normally be seen as an aggravating factor in a crime such as the one involved in these appeals. Significantly, section 718.2 of the Criminal Code states as follows:

    718.2 A Court that imposes a sentence shall also take into consideration the following principles:

    1. A sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender, and, without limiting the generality of the foregoing,

       1. evidence that the offence was motivated by bias, prejudice or hate based on race, national or ethnic origin, language, colour, religion, sex, age, mental or physical disability, sexual orientation, or any other similar factor, or

       2. evidence that the offender, in committing the offence, abused the offender's, spouse or child,

       3. evidence that the offender, in committing the offence, abused a position of trust and authority in relation to the victim, or shall be deemed to be aggravating circumstance

    See also: Section 153.1 of the Criminal Code

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.

72. The Crown, at paragraphs 118 to 124 of its Factum on the sentence appeal, suggests that the royal prerogative of mercy may be "an especially relevant factor" in analyzing the effect of the sentence imposed on Mr. Latimer by operation of sections 235 and 742 of the Criminal Code.

73. The Coalition disagrees with the Crown and submits that; the royal prerogative of mercy is not a relevant consideration in this matter. The suggestion that Mr. Latimer is a candidate for "mercy" collides directly with the rights of disabled persons in precisely the same way as do Mr. Latimer's arguments about the doctrine of necessity and about cruel and unusual punishment. Any attempt to reduce the consequences of Mr. Latimer' 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.

    3. Advising Jury of Minimum Punishment

74. The Coalition adopts the arguments of the Crown on this issue.

75. The Coalition emphasizes the point made by the Crown, at paragraph 128 of its factum on the conviction appeal, 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.

76. 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 handicapped status of a victim could somehow be made relevant to the guilt or innocence of an accused.

    I. Concluding Comment

77. The Coalition strongly believes that the arguments advanced on behalf of Mr. Latimer in this case involve a threat to the lives and security of disabled people generally. 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".

    VI. ORDER DESIRED

78. The Coalition respectfully submits that the Court should give effect to the arguments advanced in this factum when adjudicating the issues raised by these appeals. It is respectfully submitted that the sentence appeal should be allowed and that the conviction appeal, at least to the extent it is based on the issues addressed above, should be dismissed.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

DATED at Regina, Saskatchewan, this_____ day of October, 1998.

MacPHERSON LESLIE & TYERMAN

Per: ____"Robert G. Richards"

Robert G. Richards

Per: "Heather D. Heavin"

Heather D. Heavin

Solicitors for the Intervenors,

Council of Canadians with Disabilities, Saskatchewan Voice of People with Disabilities, Canadian Association for Community Living, People in Equal Participation Inc., Dawn Canada and People First of Canada

This document was delivered by

MacPherson Leslie & Tyerman
Barristers & 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

VII. TABLE OF AUTHORITIES

Case Law

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

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

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

Canadian Odeon Theaters v. Huck [1985] 3 W.W.R. 717 (Sask. C.A.)

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

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

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

R. v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.)

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

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

R. v. Morgentaler, [1988] 1 S.C.R. 30

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

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

R.W.D.S.M v. DolphinDeliveryEtd., [1986] 2 S.C.R. 573

Rodriguez v. Attorney General of British Columbia (1993), 85 C.C.C. (3d) 15

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, [199314 S.C.R. 685

Articles and Other Authorities

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

Canadian Charter of Rights and Freedoms, ss. 7 & 15, Part I of Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c.11 Criminal Code, R.S.C. 1985, c. C-46 (as amended)

Harrison 's Principles of Internal Medicine, 13th ed., (1994) editors, Isselbacher K. J., Braunwald E., Wilson J., Martin J., Fauci A., & Kasper D., (McGraw Hill: Toronto), in Part 11: Cardinal Manifestations of Disease, Section 1: Pain: Pathophysiology and Management, by Martin J., and Fields H

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

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

U.N. Convention on the Rights of the Child

VIII. APPENDICES

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

Tab B. Sobsey D., "Chapter 5: For Their Own Good . . . Care giving or Abuse?", Violence and Abuse in the Lives of People with Disabilities: The End of Silent Acceptance? (Toronto: Paul H. Brookes, 1994)

Tab C. U.N. Convention on the Rights of the Child.

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