INCLUSION DAILY EXPRESS -- Robert William Latimer v. Her Majesty The Queen

International Disability Rights News Service
Click here for today's headlines

Keeping advocates informed, inspired and connected since 1999.
Click here for daily or weekly delivery . . . OR
Try Inclusion Daily Express for two weeks FREE . . .

1. Robert William Latimer v. Her Majesty the Queen (Crim.)(Sask.)(26980)

------------------

26980 ROBERT WILLIAM LATIMER v. HER MAJESTY THE QUEEN

Canadian Charter of Rights and Freedoms - Criminal - Defence - Necessity - Sentence - Constitutional exemption - Should the defence of necessity have been left with the jury - Did the Court of Appeal err in deciding that there was no obligation on a trial judge to rule on whether a defence has met the air of reality test and would be left to the jury prior to the address of counsel - Whether the trial judge provided a misleading answer to jurors that had the effect of undermining why the jury might exercise their power to nullify - Should the trial judge have charged the jury that they could find that the Appellant had the legal right to decide to commit suicide for his daughter as her surrogate decision maker - Whether the Charter allows for a constitutional exemption in mandatory minimum sentencing and if so, should an exemption have been granted in these circumstances.

The Appellant was the father of Tracy Latimer, who suffered from extreme cerebral palsy and was quadriplegic as a result of brain damage suffered at birth. On October 24, 1993, the Appellant remained home to care for Tracy while his wife and other children went out. After returning home, Mrs. Latimer found Tracy in her bed, but not alive.

The first trial judge admitted the Appellant's confessions, but did not allow the defence of necessity to go to the jury. Following the initial trial by jury, Mr. Latimer was convicted of second degree murder. An appeal was dismissed by a majority of the Court of Appeal. Subsequent to the judgment of the Court of Appeal, it was discovered that Crown counsel at trial, who was not counsel on appeal, had interfered with the jury. The Supreme Court of Canada found that the Appellant had been lawfully arrested, and that his confession was properly admitted, but returned the matter for a new trial due to the interference with the jury.

At the new trial, the Appellant relied on the defence of necessity. Prior to the final address to the jury, the Appellant's counsel requested a ruling on whether that defence would be put to the jury. The trial judge declined to make a ruling at that time and the Appellant's counsel addressed the jury relying on the defence of necessity. In the course of the charge to the jury, the trial judge told the jury that, as a matter of law, the defence of necessity was not available in this case.

The jury returned a verdict of guilty. The trial judge informed the jury of the mandatory minimum sentence of life imprisonment, and then invited them to retire to decide if they wished to recommend an increase in the minimum term of 10 years. The jury returned soon after retiring and asked if they could recommend less than ten years before parole. They were told not really, but could make any recommendation they wished. The jury resumed its deliberations and recommended that the Appellant be eligible for parole after one year.

Defence counsel asked that the Appellant be given an exemption from the provisions of the Criminal Code under s.24(1) of the Charter. The trial judge granted the Appellant a constitutional exemption and substituted a sentence of one year in jail followed by one year of probation pursuant to s.24 of the Charter. The Court of Appeal dismissed the Appellant's appeal as to conviction and granted the Crown's appeal as to sentence. They imposed a sentence of life imprisonment without eligibility for parole for 10 years.

Origin of the case: Saskatchewan
File No.: 26980
Judgment of the Court of Appeal: November 23, 1998

Counsel: Edward L. Greenspan Q.C., Marie Henein and Mark Brayford Q.C. for the Appellant

Kenneth MacKay Q.C. and Graeme Mitchell Q.C. for the Respondent

Click here for top of page

Get your news here!