This article was originally published in Maclean's Magazine on December 15, 1997
A hundred and seventy years ago in England, about 200 crimes carried the death penalty. People were publicly hanged for offences ranging from murder to the theft of food or pocket change. But the legalized butchery had ended by the mid-19th century when the number of felonies offering a walk to the gallows had been trimmed to four (including murder and treason). The laws were changed partly because prominent social reformers demanded it. But the main reason was that more and more juries were refusing to convict people they believed to be unjustly accused. That power of juries to repudiate the law lives on. And last week in Battleford, Sask., it rescued self-admitted mercy-killer Robert Latimer from a long prison term. Justice Ted Noble of the Saskatchewan Court of Queen's Bench, mindful that a jury had rejected the 10-year mandatory minimum penalty for second-degree murder, sentenced Latimer to just two years less a day, with only one year to be served in jail. "Noble could never have done that if the jury hadn't recommended it," said Toronto criminal lawyer Edward Greenspan.
Across the country, the dramatic conclusion of Latimer's second trial for the 1993 death of his severely disabled, pain-wracked daughter Tracy, generated both relief and outrage. While the 44-year-old Wilkie, Sask., farmer and his family prepared to wait out the 30 days during which the Crown can appeal the sentence, some lawyers said an appeal appeared inevitable. Others felt Ottawa might head off an appeal by quickly rewriting the law to eliminate the minimum sentence for second-degree murder. But groups representing the disabled were incensed at Noble's ruling. "This says it's OK for a parent to murder a child with a disability," said Hugh Scher of the Council of Canadians with Disabilities. Said Pat Danforth, another council member: "If we are to believe the learned judge, it's public opinion and mob rule that set our laws into the next century."
At the heart of the issue is the law itself. Under the Criminal Code, the penalty for second-degree murder is life imprisonment. But after juries deliver a guilty verdict, judges are required to tell them that they can recommend how much time, between 10 and 25 years, the defendant must serve before becoming eligible for parole. When the Latimer jurors learned that from Noble on Nov. 5, several protested tearfully that they had not known of the 10-year minimum. The jury then retired and returned with a recommendation that ignored the law. Latimer, it said, should be eligible for parole after one year. "Make no mistake about the impact of what they were saying," commented Greenspan. "They were saying this is a stupid, harsh, implacable, unfair and cruel law and their recommendation is what enabled the judge to do what he did."
What it enabled Noble to do, in fact, was to invoke Section 12 of the Charter of Rights and Freedoms, which guarantees the right "not to be subjected to any cruel and unusual treatment or punishment." Ruled Noble: "I find that Mr. Latimer's Section 12 Charter right has been violated and that he be granted a constitutional exemption from the sentence. The evidence establishes that Mr. Latimer was motivated solely by his love and compassion for Tracy and the need - at least in his mind - that she should not suffer any more pain." When Noble had finished speaking, Latimer wiped away tears in his first show of emotion since the trial began. When court adjourned, police drove Latimer off to jail to begin serving his sentence.
While organizations representing the disabled assailed the outcome, reaction among several of the nation's top criminal defence lawyers was divided. John Bascom of Calgary said parole eligibility rules were really minimum sentences, which he thought should be abolished to give judges greater latitude in making the punishment fit the crime. At the same time, Bascom said, lawyers defending clients charged with second-degree murder will try to use the Latimer decision. "And it's not going to be restricted to cases of so-called mercy killing," Bascom added. "It's going to be used at every opportunity."
Raphael Schachter of Montreal, whose 30-year career includes eight years as a prosecutor, said that in both roles he had found minimum sentences objectionable. Schachter said he was pleased that a judge "has acknowledged that there is this type of exemption that he can use in cases that merit it." But he also predicted the Crown would appeal and the case could wind up in the Supreme Court of Canada. (Latimer has already been there. Three years ago, the nation's highest court threw out his first conviction on the grounds that jurors had been improperly questioned by police.)
Halifax lawyer Danny Graham, who has a seven-year-old son with Down's syndrome, said the federal justice department is bound to propose a new offence, perhaps third-degree murder, to cover similar cases. "The penalty for either assisted suicide or mercy killing is out of whack with the moral culpability of the perpetrator," Graham said. "But I'm not sure in the Latimer case that the judge's sentence reflected the gravity of the offence." He doubted that Latimer's ordeal would set a precedent, "but if it does then the movement supporting the rights of the disabled will have a much stronger footing."
Morris Manning of Toronto, also a former prosecutor now working as a defence counsel, said people should be aware that what Noble found cruel and unusual was not the sentence prescribed by the Criminal Code but the parole eligibility section. "What he's done," said Manning, "is to take away the right of the National Parole Board to deal with the matter." He agreed with Graham that Ottawa would likely draft an additional murder statute "tailored for this kind of case." Added Manning: "People should realize that while killing a human being makes you subject to life imprisonment, you may walk out of the courtroom the same day if the charge is not murder but manslaughter in which the judge has discretion as to sentence."
Those who claimed that Noble's decision placed the disabled at risk were using "hysterical and unfortunate language," said Greenspan. "This is an exceptionally rare case - in fact, it's the first time in Canada that anybody on a murder charge got this result, so it's hard to call it open season on the handicapped. It's foolish to think that."
Both he and Manning acknowledged the resourcefulness of the Latimer jury. "It was the refusal of juries to convict for minor offences that led to the reform of the English criminal law," Manning said, "and so here, 150 years later, we have a parallel." Said Greenspan: "It's one of the oldest concepts in a democracy that a jury can stand between an oppressive government and an individual." In Battleford, Sask., 12 men and women, perhaps unaware of their legal heritage, did just that.
Maclean's December 15, 1997