Latimer Case - SSRN papers

I

SASKATfHEWAN

.~

LAW REVIEW

Crime and Punishment in the Latimer Case Kent Roach * This article examines a number of legal and political issues arising from the C01lviction and punishment ofRobert Latimer. Latimer's acquittal offirst degree murder is examined in relation to jury nullification. In light ofthe Latimer case, the author also examines restrictions on the defences of necessity, provocation, and mental disorder, as well as the relevance of motive in the criminal law. Latimer's punishment is analyzed in the context of mandatory sentendng and the role of clemency granted by the execiltive. The author concludes that the Latimer case is an example not only ofa new political ease, pitting the rights of the accused against those ofthe victim and groups ofpotential victims, but also of the criminalization ofpolitics, which il1 this case is the politics affecting people with disabilities.

Since Robert Latimer killed his twelve-year-old daughter Tracy in October of 1993, the Latimer1 case has been etched into the public consciousness in an unprecedented manner. Many Canadians have gained their impression of our criminal justice system through the relentless media coverage of his two murder trials and his two appeals all the way to the Supreme" Court. Even the Supreme Court's recent decision-affirming Mr.. Latimer's second degree murder conviction and the mandatory minimum sentence of life imprisonment with ten years ineligibility for parole-has not laid this tragic case to rest.. The Court recognized that the case divided Canadians and sparked a national discoUIse/12 and that the executive could grant Mr. Latimer the royal prerogative of mercy. /I

*

1

2

Professor of Law and Criminology, University of Toronto. I was counsel for the Canadian Civil Liberties Assodation in its intervention in R. v. Latimer. The C.C.L.A. that the mandatory penalty of life imprisonment ineligibility for parole for ten years should be struck down as an unjustified violation of the right against cruel and unusual punishment and that the trial judge's exemption of a sentence of one-year imprisonment and one-year house arrest should be upheld. The views expressed in this paper are my own and not necessarily those of the Canadian Civil Liberties Association. R. v.. Latimer (2001), 193 D.L.R. (4th) 577, 150 C.C.C. (3d) 129 (S.C.C.) [hereinafter dted to D.L.R..]. Ibid. at para. 4. The Court also recognized that its judgment would not end the discourse.

Electronic copy available at: http://ssrn.com/abstract=1215196

470 Saskatchewan Law Review 2001 Vol. 64

The Latimer case tells us much about crime and punishment in Canada. Examining any aspect of the case inevitably leads to another, and before long the entire criminal process from prosecutorial discretion to sentencing unravels before our eyes. I will first examine issues affecting the determination of Mr. Latimer's guilt, and second, those relating to his punishment. I will conclude with some brief observations about the political and social significance of the case. I. CRIME AND CULPABILITY Although much of the public debate has focused on the appropriate punishment for Mr. Latimer, many interesting and difficult issues arise regarding the process for determining his culpability. Should motive be irrelevant in a criminal trial? Are the defences available to murder too limited? These issues are no less divisive than those concerning his punishment-perhaps even more. From one perspective, the irrelevance of Mr. Latimer's motive to his guilt, his conviction for murder, and the Court's determination that the necessity defence was not available to him, underlines the bluntness of the criminal sanction. From another perspective, it affirms the criminal law as an instrument to recognize the equal worth and dignity of every person. The questions of substantive criminal law raised by the Latimer case also implicate the controversial issue of the jury's de fado ability to not apply or nullify a law that they believe is unduly harsh in the circumstances. Should the jury have information about the penalty that may lead them to nullify the law? The Supreme Court rejected the idea that the jury should have that information, but Mr. Latimer's acquittal of first degree murder by his first jury has often been overlooked, and raises interesting questions about whether jury nullification has already occurred. Again, perspectives differ on this issue. The jury's ability to nullify the law can either be celebrated as the ultimate protection against unjust and harsh laws, or it can_ be criticized as a vehicle for discrimination and prejudice against crime victims from vulnerable and unpopular minorities. And what about prosecutorial d~scretion? The case would not have been nearly as famous had a plea bargain to manslaughter been made and accepted. How is prosecutorial discretion similar to and different from jury nullification? A. FIRST DEGREE MURDER Robert Latimer was originally charged with first degree murder on the basis that he not only intentionally killed Tracy Latimer, but did so in· a planned and deliberate manner. The requirement of planning and deliberation derives from the old law of capital murder, and a planned and deliberate murder today carries the mandatory penalty of life imprisonment with ineligibility for parole for twenty-five years. Electronic copy available at: http://ssrn.com/abstract=1215196

Crime and Punishment in the Latimer Case 471

However, after fifteen years, some offenders may apply to a jUry, and the jury can decide that the accused be made eligible for parole. The ~upreme Court in its last judgment on this matter indicated that Mr. Latimer decided to take his daughter's life some twelve days before he actually did so,3 and that there was a significant degree of planning and premeditation" 4 to his actions. This is supported in Latimer's statement to the police that he" was pretty much decided after that doctor appointment" 5 and that he talked to his wife who "said she wished she could call a Jack Kevorkian. She never participated in any planning. Just thoughts in general. 116 A planned and deliberate murder results from a conceived and carefully thought out scheme by the accused, and it is not carried out in an impulsive manner.. 7 The accused's motive does not take away the element of planning and deliberation. Evidence that the accused took care to find the least painful way of killing someone may be evidence of the accused's love, compaSSion, and empathy for the victim, but it is also damning evidence of planning and deliberation. There is evidence of planning and deliberation in this case, but the jury at his first trial acquitted Mr. Latimer of first degree murder. The fust jury's acqUittal of first degree murder may have been a result of jury nullification of a law that they believed was too harsh. I say may'J because s. 649 of the Criminal Code8 makes it a crime for a juror to disclose the jury deliberations. 9 Unlike in the United States, jurors in high profile cases do not explain to the media their reasons for reaching a verdict. We may never know what led the first jury to acquit Latimer of first degree murder. We do know that the prosecutor in the first trial, Randy Kirkham, was concerned about who would sit on the jury. He had the police administer a questionnaire to five of the jurors who sat and about twenty-five other prospective jurors concerning their views on a number of issues, including religion, abortion, and euthanasia. In the first LatimerlO appeal, the Supreme Court overturned the conviction and ordered a new trial (but not a stay of proceedings) 11 on the basis of the prosecutor's "flagrant abuse II

II

II

3 4

Ibid. at para. 15. Ibid. at para. 85. 5 As quoted in R. v. Latilner (1995), 126 D.L.R. (4th) 203 at 216, 99 C.C.C. (3d) 481 (Sask. C.A.) [hereinafter cited to D.L.R.]. 6 Ibid. at 217. 7 R. v. Nygaard, [1989] 2 S.C.R. 1074, 51 C.C.C. (3d) 417; R. v. Smith (1979), 1 Sask. R. 213 at 219-20, 51 C.C.C. (2d) 381 (Sask. C.A.). 8 R.S.C. 1985, c. C-46. 9 Ibid. 10 R. v. Latimer, [1997] 1 S.C.R. 217, 112 C.C.C. (3d) 193. lIOn the reluctance to stay proceedings because of an egregious act of state misconduct and when a fair trial is still possible, see my article liThe Evolving Test for Stays of Proceedings" (1998) 40 Crim. L.Q. 400.


of process and interference with the administration of justice. 1112 The fact that a prosecutor would go to such improper lengths suggests that he might have been concerned about jury nullification. Even if the first Latimer jury, like the second, was unaware of the exact penalties for first and second degree murder, they would have known that first degree murder was by definition a more serious matter. In the end, we do not know whether the first jury engaged in jury nullification to acquit Mr. Latimer of first degree murder and unless a juror, reporter, or researcher is willing to risk a criminal conviction, we may never know. B. SECOND DEGREE MURDER In order to convict Mr. Latimer of second degree murder, the Crown had to prove as a constitutional minimum that he knew his actions would cause Tracy Latimer's death. The highest possible form of fault for second degree murder is that the accused means or intends to cause the victim's death. The Supreme Court has stated that: "In ordinary parlance, the words 'intent' and 'motive' are frequently used interchangeably but in criminal law they are distinct....The mental element of a crime ordinarily involves no reference to motive 11 .13 The Court recently underlined this distinction between motive and intent: "It does not matter to SOCiety, in its efforts to secure peace and order, what an accused's motive was, but only what the accused intended to do. It is no consolation to one whose car has been stolen that the thief stole the car intending to sell it to purchase food for a food bank./ 14 The Latimer case affirms this traditional rule of distinguishing intent from motive for the purposes of determining criminal liability. As will be seen, it may even extend the irrelevance of motive to punishment. . There was little serious debate whether Mr. Latimer was guilty of second degree murder. His actions caused Tracy Latimer's death and he intended to achieve this result. As a number of commentators have pointed out, even though it is our most serious offence and carries with it a constitutionally required fault element to reflect its particular stigma and penalty, murder actually covers a broad degree of killings. IS These range from acts of voluntary and consensual euthanasia and mercy killings, to killings that demonstrate utter contempt and hatred for the victim. The criminal law traditionally 12 Supra note 10 at 240. 13 Lewis v. The Queen, [1979] 2 S.C.R. 821 at 831, 47 C.C.C. (2d) 24. 14 United States of America v. Dynar, [1997] 2 S.C.R. 462 at para. 81, 115 C.C.C. (3d)

15

481. P. Hogg, Constitutional Law of Canada (Toronto: Carswell, as updated) at 50.4; P. MacKinnon, IlTwo Views of Murder" (1985) 63 Can. Bar Rev. 130 at 144..


respol1ds to the wide range of conduct caught by frequently broad definitions of crimes through the exercise of sentencing discretion. As ~ be seen, this discretion is severely truncated in murder cases. With sentencing discretion cut off by the mandatory penalty, the focus shifts to prosecutorial discretion. C. PROSECUTORIAL DISCRETION The Latimer case reaffirms the enduring importance of prosecutorial discretion in criminal law, especially when mandatory sentencing is involved. The case might have been left in obscurity had the prosecutor offered a plea to manslaughter and Mr. Latimer had been prepared to plead guilty, for which he would have received a sentence perhaps sirriilar to that imposed at his second triaL Such an exercise of prosecutorial discretion would have nullified the law of first and second degree murder but is not without precedent. In his dissent on the issue of penalty in the first La.timer appeal, Chief Justice Bayda outlined examples of intentional mercy killings resolved by plea bargains to manslaughter. 16 A plea to manslaughter also has been used in cases where battered women have killed their abusers. 17 Prosecutorial discretion can mitigate some of the bluntness of the criminal sap.ction, including the irrelevance of motive to liability, the all or nothing nature of self-defence claims to a murder charge, and limits on the mental disorder defence. Chief Justice Bayda did not impugn the prosecutor's decision in this case in any way, but he did consider the disparity of results in the Latimer case and the mercy-killing cases to be relevant in determining whether the penalty was cruel and unusual punishment. The exercise of prosecutorial discretion is not immune from judicial review, but the courts have been quite deferential in reviewing prosecutorial discretion or even reqUiring the prosecutor to justify his or her choice of charges. 18 It is very unlikely that Mr. Latimer could have successfully challenged the prosecutor's decision not to offer a plea bargain to manslaughter even if he could point to comparable cases where such a deal was made. Courts are reluctant to second-guess the exercise of prosecutorial discretion. Once the prosecutor decided to charge murder, discretion then passed to the jury. D. JURY NlTLLIFICATION What should we think about the prospect that, perhaps save for jury nullification, Mr. Latimer should have been convicted of first degree 16

Supra note 5 at 253ft.

17

See M. Shaffer, liThe Battered Woman's Syndrome Re-visited" (1997) 47 U..T.L.]. 1 at 18-19. R. v. Power, [1994] 1 S.C.R. 601 at 604, 89 C.C.C. (3d) 1. See also my article, liThe Attorney General and the Charter Re-visited" (2000) 50 D.T.L.]. 1.

18


murder? Many- will conclude that this only underlines the bluntness of a criminal sanction that does not consider motive. If Robert Latimer had been convicted of first degree mmder, he really would be treated the same as Paul Bernardo or Clifford Olson. At the same time, jUry nullification raises troubling questions. Although it. has a long and celebrated history as the popUlace's ultimate response to unjust and harsh laws, it also has an ugly history as a vehicle of discrimination by the majority against crime victims that come from unpopular minorities. The argument that Robert Latimer would not have killed Tracy Latimer had she not been disabled (and perhaps more importantly in pain) seems to apply equally to first degree and second degree murder. By bringing in a verdict for second as opposed to first degree murderJ the first jury may have engaged in jury nullification of Parliament's mandatory penalty for first degree murder in a covert way. When the second jury and the trial judge nullified the penalty for second degree murder in an overt manner their decisions were overturned on appeaL Barring possible defences to be discussed below, the only escape from the conclusion that Mr. Latimer was guilty of second degree murder would again involve jUry nullification. We do not and cannot know whether the jury would have refused to convict Mr. Latimer of second degree murder if they had known about the mandatory penalty.19 We do know that the issue of penalty was very much on their minds because, after they had commenced their deliberations J they asked the trial judge: "Is there any possible way we can have input to a recommendation for sentencing?11 20 The trial judge replied that the jury should concern itself with guilt or innocence and should not be influenced by penalty. He added, however, IIthat later on, once you have reached a verdict, you-we will have some discussions about that, but not at this stage of the game. IlZ1 Mr. Latimer argued on appeal that the jury should have been aware of the mandatory minimum penalty and that the trial judge's reply misled the jury. The Court rejected both arguments, indicating that the trial judge should not have told the jury of the mandatory penalty and that lithe trial did not become unfair simply because the trial judge undermined the jUry's de fado power to nullify./ 22 The Court's conclusion in this respect is consistent with Chief . Justice Dickson's stem admonition in R. v. Morgentaler23 against J

19 One juror reportedly said he would not have convicted if he had known about the mandatory penalty. See B. Sneiderman, IIR. v. Latimer: Juries and Mandatory Penalties" (2001) 39 C.R. (5th) 29 at 35. 20 Latimer, supra note 1 at para. 19. 21 22 23

Ibid. Ibid. at para. 70. [1988] 1 S.C.R 3D, 37 C.C.C. (3d) 449.


encouraging jury nullification. Even though he had great faith in juries, ChiefJustice Dickson believed it was inappropriate to encourage jury nullification, in part, because of what he called "a harsh but I think telling example [of] a jury fuelled by the passions of racism... [being told] that they need not apply the law against murder to a white man who had killed a black man. 1I24 Although the Latimer case may lend some support to the advocates of jury nullification,25 I remain deeply sceptical of this power. Proponents of jury nullification must accept nullification on the side of the devil as well as on the side of the angels. As in the 1988 -Morgentaler decision, I prefer that judges, not juries, nullify the law (in this case, the mandatory sentence). Judges are reqUired to give reasons a law should not be applied. These reasons can then be made the subject of criticism, including criticism that they reached their conclusions because of discriminatory beliefs or stereotypes. This process ensures greater transparency and accountability26 than an anonymous jUry simply delivering a notguilty verdict. Even the exercise of prosecutorial discretion to nullify the harsh effects of the law is more transparent than the inherently inarticulate and suspidous act of jury nullification, because ultimately, it must be defended by the Attorney General. Bearing in mind that the first Latimer jury may have engaged in jury nullification, it is important to deal with suspicions that prejudice and stereotypes based on the victim's severe disabilities tainted the jury's verdict. It will be impossible to dispel such suspidons completely, but the prosecutor could have asked prospective jurors in court whether they had attitudes towards the disabled that would prevent them from applying the law on the basis of the evidence heard in the case.. Under this approach] it is possible that some of the improper questions that were asked of jurors in the first trial (out of court, by both the prosecutor and the police) might be approved by the trial judge to be asked in open court in front of both parties and before prospective jurors are sworn in to the jury. A trial judge in Ontario recently allowed the prosecutor to challenge prospective jurors on the basis that attitudes towards an Aboriginal murder victim might prevent them from deciding the case fairly and based solely on the 24

Ibid. at 77.

2S

See for example Sneiderman, supra note 19 for arguments that jurors had a right to know the consequences of their verdict. In my view, jury nullification cannot be justified on the basis that jurors may, wrongly, feel responsible for the sentence that the accused receives. That responsibility remains with the judge either at sentencing or in determining whether a mandatory sentence is unconstitutional. Not in the sense that a judge could be subject to control or removed from the bench, but in the sense that a judge's reasons could be the subject of public criticism and debate. At the same time, complaints that judges have engaged in discriminatory bias can be brought to the Canadian Judidal Council.

26


evidence. 27 The same equality-based rationale could have allowed the prosecutor to challenge prospective jurors on the basis of discriminatqry bias and stereotypes against the disabled. This might have responded to concerns that prejudice against the disabled tainted the jUry's acquittal on first degree murder. Although the Court, rightly in my view, held that jury nullification should not be encouraged by telling the jury about the penalty, there also seems, as Chief Justice Dickson recognized in Morgentaler, to be no way to prevent a perjured jury from ignoring the s~ict letter of the law if it is prepared to do so. Jury nullification may be the ultimate protection against harsh laws, but it remains an inherently dangerous, inarticulate, and lawless mechanism that should not be encouraged. Safeguards should be taken at the jury-selection stage to respond to the danger that jury nullification may be fuelled by discriminatory assumptions and stereotypes as opposed to the actual evidence heard in the case. E. PARTIAL AND NEW DEFENCES TO MLTRDER In England, a defence of diminished responsibility short of mental disorder reduces murder to manslaughter. The accused can argue that an lIabnormality of the mind'} substantially impairs his mental responsibility for a killing. 28 In the Latimer case, the Court indicated (in the context of considering a modified objective standard for the defence of necessity) that lI[t]here was no evidence of a legitimate psychological condition that rendered him unable to perceive that there was no imminent peril. Jl29 This raises the question of the relevance of such evidence, if it could have been produced. A defence of diminished responSibility, whether introduced at common law or by Parliament, would further refine the law of murder and could mitigate the effects of the mandatory penalty. On the other hand, it would complicate the task for the jury and risk basing liability on medical evidence short of establishing the mental disorder defence. It may be better to address the mandatory penalty directly rather than to deal with its effects through a new, complex, and medicalized defence of diminished responsibility. The only partial defence reducing murder to manslaughter in Canada is the provocation defence. The provocation defence did not apply to Mr. Latimer because he did not respond in a sudden rage to a wrongful act or insult that would have deprived the ordinary person 27 R. v. Rogers (2001), 38 C.R. (5th) 331 (Ont. Sup. Ct.). See generally my article, "Using the Williams Question to Ensure Equal Protection for Aboriginal Crime Victims" (2001) 38 C.R. (5th) 335. 28 Homidde Act, 1957 (U.K.), 5 & 6 Eliz. II, c. 111 s. 2. 29 Supra note 1 at para. 38.


~

~

~

~

~

..

of self-control. Although provocation plays an important role in mitigating the severity of the mandatory penalty for murder, the L,atimer case raises the issue of whether the law should privilege rage as a partial excuse for murder over love and compassion. Should Parliament revisit the law of murder-something less likely to happen because the Court has not struck down or created an exemption from the mandatory penalty-the provocation defence would undoubtedly be on the table. Some would argue that it should be abolished, perhaps along with the mandatory penalty of life imprisonment for murder.30 Another alternative would be to expand the range of emotions and extenuating circumstances by creating a third category of murder without a mandatory penalty.31 The Latimer case indirectly reveals the underinclusive nature of the provocation defence, but probably little agreement exists about whether to abolish or expand that controversial defence. Again, much seems to depend on the mandatory penalty. Nothing prevents judges from devising new common law defences. Mr. Latimer made some attempt to create a novel defencethe controversial idea that he had the legal right to decide to commit his daughter's tlsuicide" for her by virtue of her complete absence of physical and il1.tellectual abilities. This argument, however, was not pressed in his second appeal. This may have been related to the Court's refusal to strike down the offence of assisted suicide in the very different case of Sue Rodriguez. She argued that the offence would discriminate against her by preventing her from taking her life when, because of her fatal disease, she was physically unable to do so without assistance from others. 32 If the Court would not make an exception for Ms. Rodriguez who was a competent adult, it would not be willing to make an exception for Tracy Latimer who was not. The concern that competent people like Ms. Rodriguez might be coerced into suicide would be much greater in the context of people like Tracy Latimer, who cannot speak for themselves. At the same time, society should not delude itself into thinking that tragic decisions to tenninate life are not made routinely in Canada because of controversial thirdparty judgments about the quality of life of those who are not competent to make such decisions. Such decisions are routinely made by doctors in hospitals, hopefully in consultation with families, but not by fathers on farms. 30

See for example A. Cote, D. Majury & E. Sheehy, Stop EXQLSillg Violence Against Women: NAWLls Position Paper all the Defence of Provocation (Ottawa: National Association of Women and the Law, .April 2000). 31 As recommended in Of Life and Death Report of the Spedal Senate Committee 011 Euthanasia and Assisted Suidde (Ottawa: Supply and Services, 1995) at 88. 32 R. v. Rodriguez, [1993] 3 S.C.R. 519, 85 C.C.C. (3d) 15.


F. NECESSITY '

In the second Latimer trial, the trial judge decided that. there was not an air of reality justifying putting the necessity defence to the jury and both appeal courts agreed. In other words, there was not "sufficient evidence that, if believed, would allow a reasonable jury-properly charged and acting judicially-to conclude that the defence applied and acquit the accused. 1I33 The necessity defence requires evidence of three main components to justify putting the defence to the jury. The first requirement is imminent peril and danger. This is determined on the basis of a modified objective standard that takes into account the situations and characteristics of the particular accused. Concerns have been expressed that the modified objective standard can so contextualize the reasonable person that it blurs into something quite close to the subjective standard. 34 Latimer, however, suggests that the objective part of the modified objective standard still has considerable bite, as the Court held that it was not reasonable for Mr. Latimer to believe that the scheduled surgery and its consequent pain constituted an imminent peril. 35 The Court also suggested that Mr. Latimer's strongly held resistance against inserting a feeding tube into Tracy, which it noted "might also have allowed for more effective pain medication to be administered",36 was not reasonable. This suggests that honest-but mistaken-beliefs of the accused may not be relevant to administering the modified objective standard if the court concludes that they are umeasonable. In any event] the Court concluded that "Tracy's situation was not an emergency. The appellant can be reasonably expected to have understood that reality." 37 The scheduled surgery was not an imminent emergency, not because it was not scheduled the next daYJ38 but rather because the Court concluded that the pain caused by the surgery would have been medically manageable.

33 Latilner, supra note 1 at para. 35. 34 R. v. Thibert, [1996] 1 S.C.R. 37, 104 C.C.C. (3d) 1. 35 Don Stuart goes farther and argues that the /I Court's adoption of the modified approach...appears to be mere lip service as there is little attention to context" in "A Hard Case Makes for Too Harsh Law" (2001) 39 C.R. (5th) 58 at 59. In my view, the Court did try to place the reasonable person in the context that Latimer found himself in as a person who cared for a severely disabled child. What the Court did dismiss was Latimer's subjective beliefs about the pain and disfigurement his daughter faced from the proposed surgery and the lack of alternatives to self-help. 36 Latimer, supra note 1 at para. 7. 37 Ibid. at para. 38. 38 With respect to the related defence of duress, the Court has held that a requirement that the harm sought to be avoided must be immediate violates the prindples of fundamental justice under s. 7 of the Charter. R. v. Ruzic (2001), 197 D.L.R. (4th) 577, 153 C.C.C. (3d) 1 (S.C.C.).


TIle second requirement of the necessity defence is that there be no reasonable legal alternative to breaking the law. Here again, the Court placed more emphasis on what it believed was reasonable as opposed to Mr. Latimer's subjective perceptions of his lack of alternatives. The reasonable legal alternatives, as the Court saw them, were to use a feeding tube to improve Tracy's health "and allow her to take more effective pain medication", or Mr. Latimer might have relied on the group home in vyhich she stayed just prior to her death. 39 Mr. Latimer strongly rejected both these alternatives, but the Court held that his attitudes were so umeasonable that they were not relevant to applying the modified objective standard. In applying the modified objective standard to these two requirements of the necessity defence, the Court also remarked that "there was no evidence of a legitimate psychological condition that rendered him unable to perceive that there was no imminent perilll ,40 and that there were legal ways out. It is interesting to speculate whether the Court would have been more receptive to incorporating Mr. Latimer's strongly held subjective views on the issues of imminent peril and lack of legal alternatives if there had been evidence that he as an individual suffered some psychological condition, or that caregivers of the severely disabled as a group suffered some condition, that affected their perceptions of danger and pain to those under their care, as well as lack of legal alternatives to deal with that danger. In the context of ·self-defence, the Court has allowed evidence of battered woman's syndrome to influence the way it approaches what is a reasonable apprehension of an unlawful assault, death or grievous bodily harm and a reasonable belief in the lack of alternatives. In particular, evidence related to the battered womanJs syndrome has moved the Court to reject the ideas that a battered woman should wait until an attack from her batterer is imminent, or that severing the relationship is always a reasonable alternative to violent selfhelp.41 In Latimer it is not clear whether psychological evidence could have been produced on the effects that long-term care for the disabled might have on caregivers. Although some will undoubtedly criticize such evidence as a discriminatory "abuse excuse Jl ,42 it maybe produced and entered in similar cases in the future. Psychologists and others may produce evidence about what is reasonable to expect from a person responsible for the long-term care of a dependent person in pain. In the absence of such evidence, the Court dismissed as 39 40

41

42

Supra note 1 at para. 39. Ibid. at para. 38. R. v. Lavallee, [1990] 1 S.C.R. 853, 5S C.C.C. (3d) 97j R. v. P€tel, [1994] 1 S.C.R. 3, 87 C.C.C. (3d) 97; R. v. Mallot, [1998] 1 S.C.R. 123, 121 C.C.C. (3d) 456. A. Dershowitz, The Abuse Excuse (Boston: Little Brown, 1998).


unreasonable, and irrelevant to the modified objective standard, Mr. Latimer's beliefs about the pain that Tracy' would suffer from the surgery, his refusal to allow a feeding tube, and his belief that permanent or long-term institutional care was not an option. Even if the Court had been prepared to apply a more gener.otis modified objective standard to hold that Mr. Latimer had formed a reasonable perception of imminent peril and lack of legal alternatives given his particular experiences and circumstances, the Court would still have held that the necessity defence should not have been put to the jury. This is due to the third requirement of the necessity defence, which requires that the harm inflicted not be out of proportion to the peril avoided. Some criticize the proportionality requirement of the necessity defence as inconsistent with the Court's understanding of the defence as an excuse and not a justification for crime, and it is not present for the defences of duress, self-defence, or provocation. Nevertheless, Latimer affirms that it will remain an important, often the most crudal, part of the necessity defence. In evaluating proportionalitjr, the Court held that the accused's subjective perceptions are not relevant. Rather, the trial judge should conduct the evaluation at the initial threshold as a matter of law based on purely objective standards, including "community standards infused with constitutional considerations (such as, in this case, the s. 15(1) equality rights of the disabled).JJ43 As often occurs in criminal law cases, the Court did not conduct a full-blown analysis of s. 15 of the Charter4 4 or its precise application to the necessity defence, but it indicated that proportionality should be determined in the context of the equal value and worth of disabled people. Although the Court did not declare as an absolute rule that killing would never be a proportionate response to circumstances of necessity,4S it did conclude that it was completely disproportionate in the Latimer case. Killing Tracy Latimer was "immeasurably more serious than the pain resulting from Tracy's operation....Killing a person-in order to relieve the suffering produced by a medically manageable physical or mental condition-is not a proportionate response to the harm represented by the non-life threatening suffering resulting from that condition./ 46 This may mean that necessity will not generally be available in mercy killings or euthanasia situations, except perhaps in cases where the accused and the victim are stranded Jl

II

43

44 45 46

Latimer, supra note 1 at para. 34. Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Ad 1982 (U.K.), 1982, c. 11 {hereinafter Charter]. As in the famous case rejecting the necessity defence when sailors lost at sea killed and ate the cabin boy.. The Queen v. Dudley and Stephens, [1884] 14 Q.B. Div. 273. Latimer, supra note 1 at para. 41..


away from medical attention. Even then, the Court seems to oppose considering the life of a person in pain because of a disability to be l~ss worthy. At the same time, the Court rightly did not dismiss all killing as inherently disproportionate, particularly because the conceptually similar common-law defence of duress can apply, in Canada, to attempted murder and murder. 47 ll. PUNISHMENT, MANDATORY SENTENCES AND MERCY Many Canadians think that the mandatory sentence of life imprisonment and ineligibility for parole for ten years received by Mr. Latimer was too harsh, and that the justice system is brought into disrepute by its inability to distinguish him from other murderers. At the same time, groups representing the disabled have insisted that anything less than the mandatory minimum penalty would deny equal protection of the criminal law to Tracy Latimer, because she was disabled. There is very little middle ground. The case, however, also raises important issues about the evolving role of the courts and politicians under the Charter and in determining penal policy. A.MANDATORYSENTENCES The Latimer case raises the issues of whether some mandatory sentences constitute cruel and unusual punishment, and whether judges should strike them down or fashion constitutional exemptions that allow exceptional offenders to be sentenced without regard to the mandatory minimum. In the heady early days of the Charter, the Supreme Court str\lck down a seven-year mandatory minimum sentence for importing narcotics as an unjustified form of cruel and unusual punishment. Justice Lamer stressed that the mandatory sentence was grossly disproportionate to what was required to pUnish, rehabilitate, or deter small time offenders. He also stressed that the Court could not rely on prosecutors or "anyone else to mitigate the severity of the pUnishment. 48 Since that time, however, the Supreme Court has upheld every mandatory sentence that has been the subject of direct challenge. The Court has been more cautious about relying on hypothetical offenders and more deferential towards Parliament's decision to stress some purposes of punishment over others. 49 The case of most relevance in Latimer was the Court's 1990 decision in R. v. Luxton50 to uphold the mandatory penalty of life imprisonment JJ

47

48 49

50

R. v. Paquette, [1977] 2 S.C.R. 189, 30 C.C.C. (2d) 417j R. v. Hibbert, [1995] 2 S.C.R. 973, 99 C.C.C. (3d) 193. R. v. Smith, [1987] 1 S.C.R. 1045 at 1078,34 C.C.C. (4d) 97. See my articles, "Searching for Smith: The Constitutionality of Mandatory Sentences" Osgoode Hall L.]. (forthcoming)j "S,nith and the Supreme Court: Implications for Sentencing Policy and Reform" (1989) 11 S.C.L.R. 433. [1990] 2 S.C.R. 711, 58 C.C.C. (3d) 449.


with ineligibility for parole for twenty-five years for first degree murders committed while the accused engaged in a short list of serious crimes including sexual assaultJ kidnappingJ and forcible confinement and hostage taking. The Saskatchewan Court of Appeal in both its appeals took this decision as virtually decisive of. the constitutionality of the mandatory penalty of second degree murder. On behalf of the Canadian Civil Liberties AssociationJ I argued that Luxton should be distinguished on the basis that those types of first degree murders "are invariably murders that are committed with hate and contempt for the victim JJ51 and unlike murders "committed...out of love or for compassionate reasons to end the deceasedJs pain JJ •52 We argued that the accusedJs motiveJ however irrelevant to determining criminal liabilityJ should be relevant in determining penalty. A unanimous Supreme CourtJ soundly rejecting our argumentJ concluded: "In considering the character of Mr. LatimerJs actions J we are directed to an assessment of the criminal fault requirement or mens rea element of the offence rather than the offenderJs motive or general state of mind. JJ53 The Court then focused on Mr. LatimerJs subjective foresight of death J which they characterized as "the most serious level of moral blameworthiness JJ .54 It is perhaps too soon to tell whether this will change the general principle that the offenderJs motive can be relevant in determining an appropriate and just sentence. 55 In determining whether the mandatory penalty was constitutionalJ the Court focused on the fact that no reasonable hypothetical was placed before them. The accused did not rely on hypotheticalsJ but two intervenors J the Canadian Civil Liberties Association and the Canadian Aids SocietyJ did bring to the CourtJs attention the potential application of the mandatory penalty in voluntary euthanasia cases. Focusing on the particular caseJ howeverJ the Court concluded that the aggravating circumstances (initial attempts to conceal the murderJ lack of remorse J position of trust J planningJ and the victimJs extreme vulnerability) cancelled out the mitigating factors (Mr. LatimerJs good characterJ tortured anxietyJ and laudable perseverance as a caring and involved parent). As with the necessity defence J the Court did not give much weight at sentencing to Mr. LatimerJs belief that the surgery would produce extreme pain for Tracy. In the endJ the Court concluded that Mr. LatimerJs personal characteristics and the particular 51 52 S3 54 55

Latimer, supra note 1 (C.C.L.A. Factum at para. 31). Ibid. at para. 33. Ibid. at para. 82 [footnotes omitted]. Ibid. For arguments that motive should be relevant see A. Manson, "Motivation, the Supreme Court and Mandatory Sentencing for Murder" (2001) 39 C.R. (5th) 65; A. Manson, The Law ofSentenong (Toronto: Irwin Law, 2001) at 378.


circumstances of the case did not displace the serious gravity of the offence. The Court admitted that the mandatory sentence was not necessary to rehabilitate, deter, or protect the public from Mr. Latimer. Under Smith this would suggest that the penalty might be cruel and unusual as applied to Mr. Latimer. Nevertheless, the Court stressed that the mandatory penalty was necessary to denounce or punish a serious crime and to deter others from committing similar crimes, particularly when the case is well-publicized and "where the victim is a vulnerable person with respect to age, disability or other similar factors". 56 This suggests that the relentless media attention the case received, S7 and the concerns expressed by groups representing the disabled, had an impact in justifying the mandatory sentence as not grossly disproportionate in this case. It also follows the Saskatchewan Court of Appeal, which especially in the first appeal, stressed that the mandatory penalty was justified, in part, in order to provide protection for the disabled. In my view, the Court's emphasis on general deterrence represents a change in doctrine. In the 1987 case of Smith, the Court stressed that concerns about general deterrence could not justify punishment under s. 12 of the Charter and should only be considered under s. 1 of the Charter. Had the Court considered general deterrence as a justification for the mandatory penalty under s. 1 of the Charter, it would have been required to consider the effectiveness of more proportional means to protect the disabled and the vulnerable from crimes. The Canadian Civil Liberties Association argued that the fact that: Section 7I8.2(a) of the Criminal Code already deem~ as aggravating factors in sentencing evidence that an offence was motivated by bias, prejudice, or hate based on physical disability and that the offence was an abuse of a child or of a position of trust and authority. These provisions, as well as the high maximum penalty for second degree murder, are less drastic but effective alternatives to mandatory life imprisonment. S8 The Court's decision upholding the mandatory sentence in this case seems umelated to its reluctance to recognize a power to order Latilner, supra note 1 at para. 86. 57 This raises an interesting ethical dilemma for counsel and law professors. In answering countless media requests for interviews on this ease, were we contributing to a climate in which judges will feel that because the case has been so highly publicized, a more severe penalty is required for reasons of general deterrence? Are we and the media in part responsible for Mr. Latimer's sentence? 58 C.C.L.A. factum, supra note S1 at para. 43.

56

484 Saskatchewan law Review 2001 Vol. 64

constitutional exemptions without striking down the mandatory sentence. In factI there has been some softening on this issue in the Court and a number of judges have expressed willingness to consider the case for ordering constitutional exemptions on a case-by-case basis. In a recent decision upholding the mandatory minimum penalty of four years imprisonment for criminal negligence causing death with a firearm Justice Arbour, with the concurrence of ChiefJustice McLachlin, contemplated what would amount to constitutional exemptions in subsequent cases if the application of that penalty resulted in cruel and unusual pUnishment. 59 As the Court becomes more attracted to the American-style of constitutional minimalism of deciding one case at a time and avoiding the type of broad reasoning used in the 1987 Smith case to strike down a mandatory sentence on the basis of a hypothetical example, it may find itself more willing to use constitutional exemptions and other remedial techniques, such as reading down and reading in, that will allow it to save potentially overbroad laws. 60 At the same time, the Court's diminished enthusiasm for striking down mandatory sentences on the basis of hypotheticals suggests that it will be much more difficult to strike down mandatory sentences. Even though many view Mr.. Latimer as a sympathetic figure, the Court had little trouble finding aggravating factors in his crime. Most real-life offenders, as opposed to abstract hypothetical offenders, will have some aggravating factors that can, as in Latimer] be used to justify the imposition of mandatory penalties. l

B. LAW AND POLITICS The Court in Latimer was not oblivious to the potential problems with mandatory minimum sentences and even their application to Robert Latimer] but it suggested that they were matters for politics] not law. It noted that there was "considerable difference of opinion...on the wisdom of employing minimum sentences from a criminal law policy

59 R. v. Morrisey, [2000] 2 S.C.R. 90, 148 C.C.C. (3d) 1. 60 For example, in R. v. Sharpe (2001), 194 D.L.R. (4th) 11 150 C.C.C. (3d) 321 (S,C,C')I the Court saved a potentially overbroad offence of possession of child pornography by the techniques of reading down and reading in, and in R. v. Rose, [1998] 3 S.C.R.262, 166 D.L.R. (4th) 385, it upheld the Crown/s statutory right to address the jury last while recognizing the need for exemptions from this law in cases of prosecutorial abuse. For defences of constitutional minimalism see C. Sunstein One Case at a Time: Judidal Minimalism on the Supreme Court (Cambridge: Harvard University Press l 1999); P. Monahanl liThe Supreme Court in the 21st Century'l (2001) 80 Can. Bar Rev. 374. For arguments against constitutional minimalism in the Canadian context in which the Court need not have the last word even when it makes bold and broad rulings, see my book, The Supreme Court on Trial: Judidal Activism or Democratic Dialogue (Toronto: Irwin Law 2001) c. 8. l

l

Cri~e

and Punishment in the Latimer Case 485

or penological point of viewIJ 61 but that "the choice is ParliamentJs on the use of minimum sentences". 62 Similarly, the Court noted: J

Where the courts are unable to provide an appropriate remedy in cases that the executive sees as unjust imprisonment, the executive is permitted to dispense "mercyIJ and order the release of the offender....The executive will undoubtedly, if it chooses to consider the matter, examine all of the underlying circumstances surrounding the tragedy of Tracy Latimer that took place...some seven years ago. Since that time Mr. Latimer has undergone two trials and two appeals...with attendant publicity and consequential agony for him and his family. 63 I

On both the issue of mandatory sentences and Mr. Latimer's ultimate disposition, the Court seems to have tried to remove from itself the heavy burden of finality. It is possible that the executive might grant mercy and that Parliament might decide that mandatory penalties, even for murder, have unjust consequences, but I rather doubt it. In my view the justness of punishment is a matter particularly within the purview of our independent judiciary. This is why judges are responsible for sentences, not the jury or the prosecutor. Only an independent judge can be expected to take the heat for a sentence that, however appropriate and just on the particular facts of the case, strikes the public (who only reads the papers) as excessively lenient. Justice Lamer in Smith recognized the crucial judicial role when he stated that the courts are IIduty bound /J64 to strike mandatory penalties which could cause cruel and unusual punishment, and that they cannot "delegate the avoidance of a Violation to the prosecution or to anyone else 6s Justice Lamer was not oblivious to dialogue between the Court and Parliament, but he believed that it should only occur after the Court ensured justice in the individual case. Indeed} if the Court had struck down the mandatory sentence or upheld the exemption in Latimer, Parliament could revisit, as it has been urged to, the whole issue of murder and its penalties. It is now very unlikely that Parliament will revisit the use of mandatory penalties for murder. It is a no-win political issue. Rather, at some time in the future, Mr. Latimer1s sentence will more likely be commuted. This Jl

•

61 62 63

64

6S

Supra note 1 at para. 88. Ibid. Ibid. at para. 89, 90. Supra note 48 at 1078. Ibid.

486

Saskatchewan Law Review 2001 Vol. 64

may depend on the outcome of a political popularity contest which pits his claim for sympathy against that of Tracy Latimer. In the pas~} commutation decisions have been "based on questionable mixes of law} politics and public sentimentl166 and there is no reason to think this will change. The case already has some parallels with the famous Dudley and Stephens case in which many expected Queen Victoria immediately to commute the death sentence of sailors who murdered and ate the cabin boy when they were lost at sea. After conviction, public opinion turned against the sailors and it took some time for the sentence to be reduced to six months imprisonment. 67 A few weeks after Latimer, the Court decided Bums and Ratay.68 In that case, the Court did not defer to the Ministerls discretion to decide whether to seek assurances that the death penalty would not be applied. The Court did not say that the choice on capital pUnishment was for legislatures. 69 Rather, it held that the duty of the independent judiciary was to protect lithe worst and weakest among us 70 The contrast between the Court's intervention in Bums and Ratay and its deference in Latimer is striking. Maybe the Court in Latimer felt that the difference was between capital and life imprisonment. Indeed, a fundamental difference exists between the two penalties. But the effects of life imprisonment should not be underestimated. "No one, least of all Mr. Latimer, can assume he will be released in 10' years.....He will be subject to imprisonment for the rest of his life... No one can know what will happen to Mr. Latimer if he is sent to a federal penitentiary or how a parole board will look at his application in the year 2010 or later." 71 We do know from another Saskatchewan case, the David Milgaard case,72 that parole boards do not look favourably on those who do not express remorse for their crimes, and so farl Mr. Latimer has not expressed remorse. We also know that because of punitive pressure from victims' groups, Mr. Latimerdespite being found by the Supreme Court not to be a danger to the lJ

•

66 67

C. Strange "Comment (1998) 41 Crim. L.Q. 184 at 197. A.W.B. Simpson, Cannibalism and the Common Law (Chicago: University of Chicago Press 1984) at 242 244, 287; M. Mallin, /lIn Warm Blood: Some Historical and Procedural Aspects of Regina v. Dudley and Stephens" (1967) 34 U. Chi. L. Rev. 387 at 406-407. United States v. BunlS (2001), 195 D.~.R. (4th) II 151 C.C.C. (3d) 97 (S.C.C.) [hereinafter cited to D.L.R.]. It did, however, distinguish between whether capital punishment was justified as a matter of moral and penological theory, which it seemed to indicate were in the realm of general public policy as opposed to issues within the inherent domain of the judiciary such as the danger of executing the innocent. Ibid. at 129-30. Ibid. at para. 67. C.C.L.A. factum, supra note 51 at para. 26. R. v. Milgaard, [1971] 2 W.W.R. 266 (Sask. C.A.). ll

l

l

68 69

70

71 72

1

Crim~

and Punishment in the Latimer Case 487

public--could serve the first two years of his sentence in maximum security.73 No one at this point can know Mr. Latimer's fate.

m. SOCIAL AND POLITICAL PERSPECTIVES Leaving aside what happened and will happen to the individuals in this tragic case, what is the larger social and political significance of the Latimer case? Was it all a morbid form of voyeurism into a family tragedy or did the case affirm political and social values? Are these values widely held or hotly contested? A. THE NEW POLITICAL CASE The Latimer case fits into what has been called the new political case. 74 The old political case pitted the accused against the state. This still occurs in the new political case but the added dimension is that those representing victims, or groups such as women and the disabled who are disproportionately vulnerable to being victimized, intervene in favour of the criminal sanction. The configuration of the courtroom reveals much about the new political case. As counsel for the Canadian Civil Liberties Association, I sat behind Mr. Latimer's counseL On the other side of the Court, sitting behind the prosecutor and other governments, were groups representing the disabled and various pro-life organizations. If the case had involved sexual assaUlt, the feminist Legal Education and Action Fund would have also likely lined up behind the prosecutor. 75 I do not want to be misunderstood. I am not suggesting that groups siding with the state should not be intervenors. Like those representing civil liberties associations and defence lawyers, they bring an important perspective to the case. We cannot pretend that the citizens they represent are not affected by the Court's decision. In my view, it would have been unthinkable to hear this case without interventions by· groups representing disabled people. My only point is that equality-seeking groups often line up on the side of the criminal sanction.. They focus on ensuring that disadvantaged groups receive the equal protection of the criminal law, and they often make unrealistic assumptions about how much protection the criminal law actually provides.. Will the Latimer case actually protect the disabled from their caregivers? Very little evidence suggests tllat the criminal law is an 73 It appears that Mr. Latimer 74 75

will be saved from this pointlessly punitive policy because of the timing of his conviction. "Latimer may Escape Hard-time PolicyiJ The Globe and Mail (12 May 2001) A6. G. Fletcher, With Justice for Some: Victims' Rights il1 Criminal Trials (Reading: Addison-Wesley, 1995); K. Roach, Due Process and Victims' Rights: The New Law and Politics of Criminal Justice (Toronto: University of Toronto Press, 1999). See for example LE~ Equality and the Charter: Ten Years ofFelninist Advocacy Before the Supreme Court ofCanada (Toronto: Emond Montgomery, 1996).

488 Saskatchewan Law Review 2001 Vo1. 64

effective deterreIit. Deterrence assumes a rational actor calculating the severity and certainty of pUnishment. It does not capture much criminal activity. It certainly does not capture those who kill for compassionate reasons, however misguided. Within a month of the Supreme Court's widely publicized final decision in Latimer, a mother in Montreal has been charged with the murder of her disabled daughter. The mother tried to kill herself after the death of her daughter and she has recently been held fit to stand trial. She likely knew about the mandatory sentence of life imprisonment given to Mr. Latimer. Just because mandatory sentences do not always deter does not mean that they cannot be justified for other reasons. Not al.\purposes of punishment are instrumental. What about the value of denouncing the crime and punishing Mr. Latimer for taking his daughter's life? Punishment in this case will serve some of these purposes, but the expressive purposes of pUnishment in this case were undermined by the fact that so many find the punishment itself disproportionate to those received by murderers who kill in anger and with hatred and contempt for the victim. Proportionality and a proper fit between the crime and the punishment is a crucial feature of the retributive case for punishment. Therefore, lingering concerns about the proportionality of Mr. Latimer's punishment undermine the retributive defence of the mandatory penalty. Another factor undermining the defence of the mandatory penalty is that in a purely punitive world, it may be the wrong penalty. As discussed above, there is a strong case that Mr. Latimer was really guilty of first degree murder. Mercy seems already to have corrupted the case from a purely punitive perspective in which pUnishment must fit the crime and the mens rea. The new political case makes the victim more visible in the criminal law. The Court and the public no longer see every criminal case as one that pits the state as the singular antagonist of the accused. The easiest way to obtain entry to the new political case is to claim Charter rights on behalf of the victim. This can provide standing even at the criminal trial and may convince the Court not to require the state to justify its crime control interests under s. 1 of the Charter when it infringes the accused's rights] but to take a relational approach to the definition of conflicting rights. 76 The Court in Latimer did not come straight out and say it was balancing 76

R. v. Mills, [1999] 3 S.C.R. 668, 180 D.L.R. (4th) 1. For criticisms that the relational

approach to rights may diminish the rights of the accused and allow the state to avoid the burden of justifying limits on rights, see J. Cameron, "Dialogue and Hierarchy in Charter Interpretation: A Comment on R. v. Mills" (2000) 38 Alta. L. Rev. 1051; D.. Paciocco, "Competing Constitutional Rights in an Age of Deference: A Bad Time to be Accusedll Supreme Court L.R. (forthcoming in 2001).


the rights of Robert Latimer with those of Tracy Latimer, but there are some hints that this is what occurred. After having applied an bjective standard "infused with constitutional considerations (such as, in this case/ the s. 15(1) equality rights of the disabled), //77 it found that killing Tracy to avoid the pain from her upcoming surgery was "completely disproportionate". 78 The rights of the disabled were not only relevant to crime but also to punishment, as the Court noted the importance of denouncing and deterring highly publicized crimes "where the victim is a vulnerable person with respect to agel disability or other similar factors."79 Maybe the Court did not intervene on Robert Latimer/s behalf because it thought that Tracy Latimer was the weakest. We cannot return to the old days of ignoring the victim but where does it stop? In every criminal case/ including Burns and Ratay/ the victims can, by definition, be characterized as weaker and more vulnerable than the accused. Is the crucial difference that in some cases the victims have enough supporters to increase visibility? If so, the new political case may be more about politics than anything else. B. THE CRIMINALIZATION OF POLITICS Another important feature of the new political case is that equality seeking groups intervening on the state/s side often play defence. The first priority of feminist groups or those representing the disabled may not be defending the criminal sanction] or even attempting to rid it of discriminatory assumptions, but rather achieving more substantive equality by better jobs, pay! services! and facilities. And yet, much of the energy of equality-seeking groups throughout the 1990s seemed to be taken up defending the criminal sanction in the new political case. This may be part of a broader phenomena that I have called a criminalization of politics. At a time when the state retreats from other areas! increased emphasis is placed on the criminal sanction as a symbol of the state's care and concern for the disadvantaged. 80 Perhaps it is not for me to saYI but I wonder whether this will achiev~ true equality. Mandatory and enhanced sentences can be defended as protecting the disadvantaged and the vulnerable, but they will also adversely affect people from those groups when they are charged with offences. The dichotomy between villains and victims often breaks down. Some feminists oppose mandatory penalties for murder 77 Latilner, supra note 1 at para. 34. For arguments that the Court should have paid more attention to equality values see H.A. Kaiser, "Latime~ The End of Judicial Involvement and an Unsatisfactory De Facto Beginning of the Clemency Process" (2001) 39 C.R. (5th) 42.

78 Latimer, supra note 1 at para. 41. 79 Ibid. at para. 86. 80 K. Roach, Due Process and Victims" Rights: The New Law and Politics of Cri,nillal Justice (Toronto: University of Toronto PressJ 1999) at 312-13.


because they recognize the injustice these may cause to women who kill their batterers. In some ways, the image of the disabled person-as the perpetually vulnerable victim who can never be the accused plays into stereotypes that may not promote true equality. The punitive politics of the new political case are also divisive. I wonder whether the Latimer case increased or decreased public support for the disabled in Canada. There should be a wider public consensus about the need to provide accommodations making it easier for the disabled to participate in Canadian life than on whether to subject Robert Latimer to life imprisonment. The new political case, whether it pits feminists against the defence bar or the disabled against those opposed to mandatory sentences, is a zero-sum symbolic battle that emphasizes often bitter disagreements as opposed to common ground. It also lets governments off easy for their treatment of the disabled. All they have to do is prosecute crimes against the disabled vigourously. Time will tell how effective the mandatory penalty has been as a means to denounce the killing of the disabled and to promote their equality rights. IV. CONCLUSION

Despite the Court's recognition of continued debate and the possibility of political intervention, the Court's decision in Latimer was a final one. Mr. Latimer is in a federal penitentiary and could remain there for the rest of his life. The Court's decision also makes it less likely that Parliament will, as it has been urged to do, reform the law of murder, provocation, and mandatory penalties. Although it is difficult to deny victims and potential victims a role in the new political case, the affirmation of the criminal sanction, and especially the mandatory sentence, does not provide a solution to the complex issues of how our society treats and views the disabled.