R.+c.+Latimer

** Facts: ** Tracy Latimer, a girl of 12 years who suffered from serious cerebral paralysis died when her father ended her life. Her state as a quadriplegic resulted from a neurological condition from birth that resulted in her having the mental capacity of a baby of four months despite several surgeries. - It is suggested by her epileptic fits (six per day) that she sufferred enormously from pain which could not be relieved by the medication. -Mr. Latimer knew another operation was upcoming and he thought that his daughter did not want the pain of living – he sat her is his car and pumped in the exhaust, leading to her death by carbon dioxide poisoning. (discovered by autopsy, Latimer had alleged she died in her sleep but admitted later what he had done) JUDICIAL HISTORY: -Latimer was first charged with first degree murder but convicted of second degree murder by jury and life imprisonment – confirmed by Sask. Ct of Appeal but a new trial was ordered at the first SCC challenge in 1997 (alleged hindrance in jury selection). -At the second trial, convicted of second degree murder, life imprisonment but with conditional liberation period of only ONE year. Sask Ct. of Appeal raised this to TEN YEARS, consistent with Criminal Code. LEGISLATION *s. 235(1) CC: Anyone who commits murder is guilty of a criminal act and should be condemned to life in prison. *s. 745 CC: Benefit of conditional liberty in cases of life imprisonment is subject to (c) for murder, spending TEN YEARS IN PRISON.. Charter – see art. 7, 12 (no cruel and unusual punishment) and art. 1 ISSUE ONE -**A defence founded on necessity has a limited application in criminal** law – the trial judge was right not to examine necessity. -**Invoking the defence of necessity - requires 3** conditions (from PERKA where Dickson who thought this defence should be strictly limited). JUDGE SAYS ANALYSIS REQUIRES MODIFIED OBJECTIVE APPROACH FOR FIRST 2 CRITERIA (objective evaluation but one which accepts the context of the situation and accused’s characteristics) 1. **imminent and evident danger** – the situation should be so urgent that a normal person would be instinctively forced to react. Look to see if it was inevitable that the person react *Not met – Latimer did not find himself in imminent danger but rather considered the surgery to be a danger to his daughter which he perceived as mutilation. Not the sickness nor the surgery posed an imminent danger to Tracy. 2. **no solution that is reasonable and legal**, only the illegal one. Look to see whether there was a legal way of solving the situation *Not plausible at all. Latimer had legal means- continuing to help Tracy live and cope 3. **proportionality between wrong inflicted and wrong avoided**. Look to see if the wrong avoided was comparable or much greater than the wrong inflicted. (OBJECTIVE APPROACH) *Difficult to imagine situation where proportionality here could be respected in case of homicide – Court leaves this question open. Court says, ok say necessity could constitute a defence in case of homicide - at least have to find a wrong which is grave enough to justify the wrong of death that is inflicted. Not the case here – wrong avoided was comparatively to the death, totally disproportionate. -**Note that in this case it is not necessary to determine whether the defence could excuse Latimer but whether the jury can be allowed to consider this defence.** (Are there enough elements of the proof such that a reasonable jury would conclude the defence was well-founded and acquit the accused –PLAUSIBILITY) -The moment when the trail judge took the decision on necessity (after the presentation of the proof but before the lawyers addressed themselves to the jury) – does not infringe on Latimer’s right under s. 7 of the Charter.--> this is a bit procedural for us ISSUE TWO -The trial judge did not deny the applicant a fair trial by posing the question of punishment to the jury. -Latimer argued that the trial judge had prevented “annulation par le jury” (note this is a rare kind of happening to let the jury decide not to apply the law) by letting the jury participate in the determination of the punishment -Judge says too bad – The fact that a guilty person is subject to a minimal punishment fixed in advance does not influence the jury in their assessment of guilt -The right to a fair trial does not include the right to cancellation by the jury ISSUE THREE -The minimal punishment for second degree murder does not constitute a cruel and unusual punishment in the sense of art. 12 of the Charter. -The applicable criteria for establishing a cruel and unusual punishment is rigorous and Latimer did not succeed at demonstrating that the punishment was inflicted in a way that was markedly disproportionate in relation to the most grave crime in criminal law – murder. -To establish whether a punishment is cruel and unusual consider: 1. **the gravity of the offence** (nature and consequences of offending act). The acts of Latimer had the most grave consequences possible – and the //mens rea// of second degree murder, that of foreseeing the death of Tracy, is the highest level of moral guilt -para 85 – **legislature established two types of murder – first and second degree – to reflect its perception of the level of moral guilt**- the idea is that these two types would be treated differently at level of punishment (**whether a murder is first or second degree is established AFTER it is established beyond a reasonable doubt that the accused is guilty of murder** (subjectively forsaw the death) -a regime for determining punishment must be a function of how serious the offence is  -the imposition of a minimal prison time plays key role in societal denunciation of murder  HOLDING: Conviction for second degree murder with a punishment of imprisonment for 10 years affirmed.
 * // R. v. Latimer //**// 2001 SCC //
 * Issues of this appeal: **
 * 1) Did the trial judge err in applying the defence founded on necessity (not allowing jury to examine necessity)? NO
 * 2) Was the trial unfair for the reason that the trial judge led the jury to believe that it could participate in the determination of an appropriate punishment? NO
 * 3) Did the imposition of a minimal obligatory punishment for second degree murder constitute a “cruel and unusual punishment” under the constitution such that Latimer should be exempted from it? NO
 * Reasoning: **