On appeal from QBJ 37/94 JC Battleford.

   Criminal law — Offences against person and reputation — Murder — Jury charge — Defences — Necessity — Mercy killing — Procedure — Charge or directions to jury — Judge's duty to determine if defence available on evidence — Civil rights — Cruel and unusual punishment — What constitutes cruel and unusual punishment — Mandatory minimum sentence — Canadian Charter of Rights and Freedoms Denial of rights — Remedies, variation of sentence.

   This was an appeal by the accused Latimer from conviction and by the Crown from sentence.  Latimer asphyxiated his daughter Tracey with carbon monoxide.  She was a quadriplegic afflicted with cerebral palsy and suffered continual pain. Latimer was initially convicted of second degree murder and sentenced to the mandatory term of life imprisonment without parole eligibility for 10 years.  He appealed and applied for an order exempting him from the mandatory sentence on the ground that it constituted cruel and unusual punishment in violation of the Canadian Charter of Rights and Freedoms.  The Court of Appeal dismissed the appeal.  Latimer appealed to the Supreme Court of Canada on procedural grounds.  The Court ordered a new trial. Latimer was convicted of second degree murder again but was sentenced to one year in jail.  He argued the trial judge erred in allowing him to argue that he killed Tracey out of necessity due to her unrelenting pain and then instructing the jury that this defence was not available to him.  As well, Latimer argued the judge erred in telling the jury that some discussions might be held as to penalty after they reached a verdict.  Latimer argued that this left the jury with the impression that it could make recommendations about penalty if it convicted Latimer and that this deprived him a more anxiously considered and certain verdict.  After Latimer was convicted, the jury recommended that he be eligible for parole after one year.  The Attorney General argued the trial judge erred in granting the exemption from the mandatory sentence as the Court of Appeal had already determined this issue against Latimer.

   HELD:  Appeal from conviction dismissed.  Appeal from sentence allowed and mandatory murder sentence imposed with parole ineligibility for 10 years.  The trial judge's deferral of the decision to allow the necessity defence until after defence counsel argued the issue before the jury did not so prejudice Latimer's position so as to warrant a new trial. The defence was withdrawn in even-handed terms and, as a whole, the charge was not unbalanced, prejudicial or unfair to Latimer.  There was no factual foundation for the necessity defence as Latimer's life was not in peril, he had not acted involuntarily and that he had the option of placing Tracey in a group home if he could no longer stand to care for her.  The charge fell short of an assurance that the jury would be able to make a recommendation and it did not amount to a suggestion that the jury did not have to be concerned about a heavy sentence should it convict Latimer.  The trial judge took too much upon himself in bypassing the Court of Appeal judgment, the direction of Parliament and the executive power of clemency in granting the sentencing exemption.  There was no reason to depart form the previous judgment of this court. There was no material difference between this case and the previous one.  The first court took into account that Latimer took Tracey's life because she was in pain.  The jury's recommendation was illegal as it could not recommend less than the 10-year minimum.

Statutes, Regulations and Rules Cited:

Counsel:

      The following judgment was delivered by

¶ 1      THE COURT:— Robert Latimer was convicted on November 5, 1997 of second degree murder in the death of his daughter, Tracey, and was afterwards sentenced to a term of imprisonment of one year to be followed by a period of probation of one year less a day.  Tracey was a 12 year old quadriplegic afflicted with severe cerebral palsy and suffering continual pain. Mr. Latimer asphyxiated her with carbon monoxide by placing her inside the cab of his truck, attaching a hose to the tailpipe of the vehicle, and diverting the exhaust into the cab.

¶ 2      Mr. Latimer had been convicted of the same offence three years earlier and been sentenced to the mandatory term of life imprisonment, without eligibility for parole for ten years. On that occasion he appealed to this Court against both his conviction and sentence: R.v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.) (per Bayda C.J.S., Tallis and Sherstobitoff JJ.A.)

¶ 3      In a unanimous decision the Court dismissed the appeal against conviction. The Court rejected Mr. Latimer's contentions that the trial judge had erred in the following respects: (1) in failing to allow the jury to reach a decision on the basis of the justice of the case, rather than the letter of the law, and of the right of her father to choose death for her, given her physical and intellectual incapacity; (2) in admitting into evidence incriminating statements made by Mr. Latimer in the course of the police investigation into the death; and (3) in failing to leave the defence of necessity to the jury.

¶ 4      The Court went on, by majority decision, to dismiss the appeal against sentence, turning down an application by Mr. Latimer for an order exempting him from the applicable provisions of sections 235 and 745 of the Criminal Code. Taken together, these sections prescribe a sentence of life imprisonment for murder, subject to potential release on parole after the expiration of at least 25 years, in the case of first degree murder, and of at least 10 years in the case of second degree murder. Mr. Latimer had sought the exemption on the primary basis a sentence of life imprisonment, without eligibility for parole for 10 years, amounted in the circumstances to "cruel and unusual punishment," prohibited by section 12 of the Canadian Charter of Rights and Freedoms. Justices Tallis and Sherstobitoff did not agree with this proposition and dismissed the appeal in consequence. In dissent, Chief Justice Bayda expressed the opinion the sentence amounted in the circumstances to cruel and unusual punishment. In the result, he would have granted the sought-after exemption and directed that sentence be imposed without regard to sections 235 and 745 of the Code.

¶ 5      Following the dismissal of that appeal, two things occurred.  First, it was discovered that in advance of the trial Crown counsel had had potential jurors interviewed regarding their views on subjects of significance to the case. Second, Mr. Latimer appealed to the Supreme Court of Canada. He sought an acquittal on the basis the Court of Appeal, along with the trial judge, had erred in law in relation to the admission of his incriminating statements. Alternatively, he sought a new trial on the basis of Crown counsel's conduct in having the potential jurors interviewed.  The Supreme Court rejected the contention that Mr. Latimer's incriminating statements had been admitted in error, but ordered a new trial, the need for which had been conceded by the Attorney General, in consequence of Crown counsel's conduct: R. v. Latimer (1997) 4 C.R.(5th) 1 (S.C.C.).

¶ 6      The new trial was presided over by Mr. Justice Noble, sitting with a jury. As previously noted, Mr. Latimer was again convicted of second degree murder. This time, however, he was sentenced to a year in jail, to be followed by a year of probation. He  then appealed, contending the conviction could not stand in the face of what had occurred at trial. The Attorney General also appealed, contending the sentence had been imposed in error and fell to be set aside in favour of the mandatory sentence of life imprisonment, without eligibility for parole for 10 years. These, of course, are the appeals now before us.

1. The Appeal Against Conviction

¶ 7      Mr. Latimer appealed on the grounds the trial judge had erred in two respects: (1) in his treatment of the defence of necessity and (2) in his handling of an enquiry from the jury about whether it would be able to make a recommendation as to sentence should it convict.

      (1) The Defence of Necessity

¶ 8      Generally speaking, this defence allows for a person to be excused from breaking the law if it was necessary to do so. In other words if a person, faced with imminent risk, acts to avoid the peril, has no  reasonable alternative to acting in violation of the law, and does less harm in breaching the law than in abiding by it, then that person may be relieved of responsibility on the premise the act was not truly voluntary: R. v. Perka, [1984] 2 S.C.R. 232.

¶ 9      The trial judge's treatment of this matter gave rise to two complaints: first,  that he stood by and allowed counsel for Latimer to argue the defence of necessity before the jury, only to later instruct the jury that this defence was not available to the accused in the circumstances of the case. And second, that he erroneously instructed the jury that this defence was not available. The first of these was said to have effectively denied Mr. Latimer a fair trial, whether or not the trial judge erred in instructing the jury that the defence was not available. The second was said to have been fatal to the trial in any event. Consequently, Mr. Latimer sought a new trial.

¶ 10      The background for these complaints is this. Intending at the outset of the trial to raise the defence of necessity, though aware that Mr. Justice Noble might not leave this defence to the jury in light of the evidence to come, counsel for Mr. Latimer made an opening address alerting the jury to the position he would be taking in this respect:

¶ 11      Later, as counsel for Mr. Latimer was about to make his closing address to the jury, he asked Mr. Justice Noble if, in his instructions to the jury before it began its deliberations, he intended to instruct the jurors on the law pertaining to the defence of necessity and leave it to them to decide whether or not to give effect to the defence. Defence counsel wanted to know if he might argue that Mr. Latimer could and should be excused from taking his daughter's life in violation of the law, considering the continual pain she was in, the further need for surgery, and the lack of any reasonable alternative to death in the judgment of her father. Counsel was concerned, he said, about saying something to the jury that Justice Noble had perhaps decided "wasn't going to be allowed."

¶ 12      In response, Mr. Justice Noble said "to put counsel's mind at ease about that, I haven't decided," adding that he thought it would be unfair to dismiss or accept the whole concept of necessity without first hearing what both counsel might have to say to the jury in this regard:

¶ 13      Counsel for Mr. Latimer then said he had come prepared with alternate addresses, with or without reference to the defence of necessity, depending upon whether his Lordship would leave this defence with the jury. Counsel went on to say that he would prefer to make his address one way or the other. To which Mr. Justice Noble replied:

¶ 14      Counsel for Mr. Latimer went on from there to address the jury, inviting them to bring in a verdict of not guilty based upon the doctrine of reasonable doubt, the parental right in the Latimers to make life and death decisions for their incapacitated child, and the defence of necessity.

¶ 15      In doing so, counsel  emphasized the duty of the jury to acquit Mr. Latimer if in doubt about the right verdict or "the right answer," as he put it. He  implored them to have regard for the unrelenting pain and tragic plight of this child; the intensely compassionate concern of her parents; the professional suggestion she undergo radical surgery with no assurance of bringing an end to her suffering; and, the role of parents in making life and death decisions for a child who is unable to do so:

¶ 16      Counsel then turned to the defence of necessity, mindful of the trial judge's comments. Having recalled the child's plight and the prospect of surgery, counsel said this:

¶ 17      Following counsel's address, Mr. Justice Noble charged the jury, telling the jurors that as a matter of law the defence of necessity was foreclosed to them. He  said this:

¶ 18      Thus Mr. Justice Noble explicitly withdrew the defence of necessity from the jury. He did not, however, withdraw anything else from their consideration, including Mr. Brayford's suggestion that it was open to the jury to find that Mr. Latimer, in exercise of his parental authority, was entitled on Tracey's behalf to choose death for her rather than a life of continued suffering. Indeed, the trial judge appears to have had this in mind in formulating for the jury the position of counsel for the defence, for Mr. Justice Noble said this:

¶ 19      It is in the light of all of this, then, that the question arises: Did the trial judge, in deferring his decision on whether to leave the defence of necessity to the jury until after the closing addresses of counsel, and in then remarking upon the matter as he did in his instructions to the jury, prejudice the position of the accused and deny him a fair trial?

¶ 20      In the submission of counsel for Mr. Latimer, the deferral of the decision  placed defence counsel in an untenable position, much to the prejudice of his closing address. The submission was developed along these lines: Mr. Brayford, acting on behalf of the defence, was left to address the jury without knowing whether the  defence of necessity would or would not be left with the jury. This uncertainty forced him to make an uninformed tactical decision, which entailed a choice of potentially lesser evils in relation to the effectiveness of his closing address. Had he chosen not to argue the defence of necessity, his closing address would have been completely undermined had the trial judge later decided to leave the matter with the jury. Hence Mr. Brayford had no choice but to argue necessity, even though the judge might take the defence from the jury and thus rob the closing address of much of its effectiveness. Judges, it was said, must not place counsel in this position, for this amounts to a violation of the requirement that counsel for the defence be fully informed at every stage of the proceedings: R. v. Underwood, [1998] 1 S.C.R 77.

¶ 21      Moreover, according to the submission on appeal, the manner in which the trial judge took this defence from the jury served to leave them with the impression that Mr. Brayford's closing address was to be dismissed, as though it had been misleading and irrelevant, and that his position on behalf of the  accused was to be ignored in favour of that taken on behalf of the Crown. The effect of the fashion in which the trial judge removed this defence from the jury's consideration was said to have so sullied the appearance of fairness and balance and even-handedness as to warrant a new trial: R. v. Denis, [1967] 1 C.C.C. 196 (Que. C.A.); Colpitts v. The Queen, [1965]  S.C.R. 739; Brouillard v. The Queen [1985] 1 S.C.R. 39; R. v. Lorentz-Aflalo (1991), 69 C.C.C. (3d) 230 (Que. C.A.); R. v. Valley (1986), 26 C.C.C. (3d) 207 (Ont. C.A.);  R. v. Pouliot (1992), 74 C.C.C. (3d) 428 (Que. C.A.) (per Fish J.A.); aff'd [1993] 1 S.C.R. 456; R. v. Benoit (1998), 122 C.C.C. (3d) 105 (Que. C.A.).

¶ 22       With respect, we are unable to agree with these submissions. Our inability to do so largely lies in a different characterization of the events, compounded by a different view of their effects, especially when seen in the light of the whole.

¶ 23      To begin with, we are of the opinion that, while it might have been better had the decision on the availability of the defence of necessity not been deferred to await the addresses of counsel, the trial judge was under no obligation either to confer with counsel before instructing the jury or, having done so, to take counsel's suggestions. This is subject, of course, to the duty of the judge to ensure at every turn that the accused receives a fair trial. Trial judges have long been empowered, first as a matter of practice and now as matter of statute, to confer with counsel in advance of instructing or charging the jury, but they are not obliged to do so. Section 650.1 of the Criminal Code makes this clear:

¶ 24      In this instance, of course, the judge opted to confer with counsel as suggested by Mr. Brayford, who was concerned lest he say something to the jury "that wasn't going to be allowed."  While a bit ambiguous, the anxiety implicit in this phrase suggests Mr. Brayford was afraid he might be admonished by the judge in the midst of his address should he bring up necessity. Experienced counsel are always wary of this, knowing how potentially destructive of their closing address such admonishments can be. Obviously, this is what the judge had in mind, given his response, which was aimed at putting Mr. Brayford "at ease" and paving the way for him to raise the matter on the understandings that although he would not be interrupted, the matter might later be taken from the jury.

¶ 25      And so Mr. Brayford proceeded to close where he had opened: by informing the jury that he was raising the defence of necessity for their consideration, but that the trial judge might withdraw it from them. Indeed he handled the matter rather adroitly in both his opening and closing addresses, knowing that Mr. Justice Noble, while having to decide whether to leave this defence to the jury in light of the evidence, was unlikely to do so. After all, Mr. Justice Wimmer had decided not to do so in the first trial, a decision that had been upheld by this Court. We are of the view, then, that Mr. Brayford was not placed in an untenable position by reason of the deferral by Mr. Justice Noble of his decision in this regard.

¶ 26      We are also of the view that the case of  R. v. Underwood, relied upon by counsel in support of his submission to the contrary is of no real assistance. What occurred here is markedly different, as we see it, from what occurred in Underwood' s case. There the accused, who had planned to testify, applied at the close of the Crown's case for a ruling excluding the admission into evidence of his criminal record. The trial judge, in whose power it lay to exclude the admission of the record in whole or in part, declined to make a decision upon the application until after the accused had testified in chief. In consequence, the accused opted not to testify and was convicted.

¶ 27      The conviction in Underwood was overturned on appeal in light of the requirement  that accused persons, before they call evidence in their own defence, are entitled to know the case to be met. It was held, first,  that the case to be met encompassed the extent to which the criminal record of accused persons will be admissible against them and, second, that such rulings must be made in timely fashion, otherwise the right of an accused to make an informed decision whether to testify is negated.

¶ 28      In our judgment, the principles upon which Underwood was decided are not applicable here, even by implication, and we are not persuaded that the trial judge's deferral of his decision so prejudiced Mr. Latimer's position as to warrant a new trial.

¶ 29      That, then, brings us to the manner in which the trial judge took the defence of necessity from the jury. Had he informed the jury that he had been asked to rule upon the matter earlier and had declined to do so until after the closing addresses, suggesting that in hindsight it might have been better had he done otherwise and spared Mr. Brayford the burden of arguing the matter, his manner of taking the defence from the jury would probably have gone unchallenged. But even at that, his handling of the matter did not give rise, in our respectful opinion, to the impression Mr. Brayford's address was to be dismissed, as though it had been misleading and irrelevant, or that the position of the Crown was to be preferred over that of Mr. Latimer. We simply do not share this suggestion, having regard for what the trial judge had to say about this defence and the whole of the case.

¶ 30      As we see it, Noble J. withdrew the defence of necessity from the jury in even-handed terms. He explained the nature of the defence in considerable detail, referred to the evidence of Mr. Latimer's "altruistic, kind and sympathetic" motive in deciding to take Tracey's life out of his concern for the pain she suffered, and stressed that the defence of necessity was not open to Mr. Latimer "as a matter of law" and in light of the practice of limiting the defence to circumstances "narrowly defined by the courts."  It is not as though he had summarily stated: "The defence of necessity, argued by Mr. Brayford, is of no application to this case and I must therefore tell you to disregard what he said." And it is not as though he disparaged the address, or delivered a rebuttal, or destroyed the general effectiveness of it, whether in the tone he employed, the words he chose, or the manner he adopted, as in the line of cases to which counsel referred us, including R. v. Lorentz,  R. v. Benoit, and so on.

¶ 31      Indeed, the trial judge's treatment of the matter lent an air of legitimacy to Mr. Brayford's address in this regard, especially when viewed in the light of Mr. Brayford's repeated cautions to the jury that, while he was raising this defence, the possibility of the trial judge's removing it from their consideration remained.

¶ 32      Nor, when this aspect of the charge is viewed in the context of the whole,  can the charge be said to have been unbalanced or prejudicial or unfair to Mr. Latimer. Indeed, to Mr. Latimer's advantage Mr. Justice Noble left a questionable proposition to the jury: that even though the accused had caused the death of his daughter, clearly intending to do so, the jury might still acquit, having regard for Mr. Brayford's call for fairness and understanding and compassion on the part of the jury when deciding if what Mr.Latimer did amounted to an act of murder. And the trial judge put the proposition to the jury in the most euphemistic and benign terms, saying, "so the issue comes down to this: Did Mr. Latimer commit an act of murder when he put Tracey to sleep, or did he not?  It is for you to decide."  In plain terms, the accused put the child to death, intending to do so, and therefore committed murder, rendering him guilty as charged unless excused by operation of the defence of necessity. And it is to that issue we now turn.

¶ 33      On the earlier appeal to this Court, the Court rejected Mr. Latimer's contention that Mr. Justice Wimmer had likewise erred in taking this defence from the jury. Mr. Justice Wimmer's charge to the jury, the substance of which was essentially no different than the charge now before us, went as follows:

¶ 34      In upholding this exclusion of the defence of necessity, this Court applied the controlling authority, R. v. Perka, and concluded that the trial judge "was correct in finding that there was no factual foundation for this defence." The Court noted, according to the evidence, that Mr. Latimer's life was not in peril, that he had not acted "involuntarily" in the sense of Perka, and that the Latimers had the option of placing Tracey in a group home should the burden of carrying for her have proved too much.

¶ 35       We do not think the case at hand is materially distinguishable. The evidence, while differing here or there when compared to the evidence at the first trial, differed more in quantity than quality in relation to the factual foundation at issue. In suggesting otherwise, counsel for Mr. Latimer emphasized the dilemma facing the Latimers, as seen by the accused, in consequence of the medical advice that Tracey undergo further surgery to relieve the pain of a dislocated hip. The surgery entailed the reconstruction or removal or her right hip. Mrs. Latimer testified to being stunned on being informed of this, thinking it amounted to mutilation. She went on to testify that she later told her husband it would be better that Tracey died, invoking the name of Dr. Kevorkian. Even allowing for this increased emphasis upon the nature of the dilemma as seen by the accused, we do not think there are any material distinguishing factors. This Court summarized the thrust of the evidence in the first trial as follows:

¶ 36      While more evidence of this nature was adduced at the second trial, the defence of necessity was still left without the necessary "air of reality" in relation to its essential elements, including the element of proportionality between the harm caused in violating the law and the harm entailed in abiding it. In other words, we are of the opinion the evidence was not such that, if believed, a reasonable jury properly charged could have acquitted on this basis: R. v. Osolin, [1993] 4 S.C.R. 595, per Cory J. at p. 676 ; R. v. Lemky, [1996] 1 S.C.R 757, per McLachlin at p. 763. Hence, in our judgment the trial judge did not err in taking the defence from the jury.

¶ 37      That leaves for our consideration the second issue, having to do with the  question the jury asked the trial judge about sentencing.

      (2) The Jury's Question Concerning Sentencing

¶ 38      In the course of its deliberations, the jury sent the following note to the trial judge:

¶ 39      Before responding, the trial judge asked counsel for their views. A lengthy discussion followed, centred on the third question. Mr. Brayford suggested the jury be told of the sentencing provisions of the Criminal Code relating to second degree murder, including those of 745.2 allowing for a jury upon conviction to make a recommendation regarding the number of years the accused must serve before being eligible for release on parole. Counsel for the Crown opposed this suggestion.

¶ 40      Having heard from counsel, Mr. Justice Noble recalled the jury, informed them of the procedure that follows upon reaching a verdict and told them not to concern themselves with why the accused had been charged with second rather than first degree murder. He said this fell within the discretion of Crown counsel. The trial judge also told them that not to concern themselves with the penalty for the offence, saying:

¶ 41      Had Justice Noble stopped there, his response might well have gone unchallenged, because he followed the usual practice of withholding comment about sentence, by counsel and judge alike: R. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont.C.A.); R. v. Schwartz & Schwartz (1978), 40 C.C.C.(2d) 161 (N.S.C.A.); R. v. Nielson & Stolar (1984), 16 C.C.C. (3d) 39 (Man. C.A.). The practice is founded on the two principles that (i) sentencing considerations are irrelevant to the determination by the jury of whether or not the elements of the offence have been proved beyond a reasonable doubt, and (ii)  the jury might be improperly influenced in making that determination were it to concern itself with sentencing. Indeed counsel for Mr. Latimer conceded on the hearing of the appeal that had the trial judge said no more than this, there could have been no objection. Counsel suggested, however,  that trial judges would do well in cases such as this to apprise juries of the punishment provisions of the Criminal Code so that juries, just as trial judges, might have a complete picture of the case.

¶ 42      That aside, the trial judge did not stop there, and in the submission of counsel for Mr. Latimer he made a fatal error in continuing as he did. Having reminded the jury they were not to concern themselves with penalty, because he did not want them to be influenced one way or another by such considerations, he went on to add:

¶ 43      These added remarks, it was submitted, so prejudiced Mr. Latimer's right to a fair trial as to warrant a new trial. Counsel for Mr. Latimer contended that this left the jury with the impression that it could make recommendations about penalty, should it find the accused guilty as charged, an impression that served to ease the jury's burden and deprive Mr. Latimer of a more anxiously considered and certain verdict.

¶ 44      By way of identifying the nature of the prejudice that was said to have flowed from this, counsel referred us to two cases: McLean v. The King, [1933] 1 S.C.R. 688 and Rex. v. Cracknell (1931), 56 C.C.C. 190 (Ont. C.A.).  In McLean's case the jury had been told by counsel that, although the sentence for murder was death, the  Crown was empowered to commute the sentence to life imprisonment. This prompted the trial judge to explain the matter to the jury in the course of his charge, anxious as he was to impress upon the jurors the need to reach a verdict solely upon the evidence before them. The Supreme Court of Canada held that the reference to executive clemency was undoubtably unfortunate, but that it had caused no harm to the accused when viewed in the light of the charge as a whole. In explaining why  it was unfortunate, the Court said this:

¶ 45      In Cracknell's case, the trial judge practically told the jury that, should it find the accused guilty of murder, Ottawa would reduce the sentence to life imprisonment, given the man's mental instability and the public's disapproval of hanging such persons. In consequence, the Ontario Court of Appeal set aside the accused's conviction and ordered a new trial, saying

¶ 46      Returning with this in mind to Mr. Justice Noble's instructions to the jury,  we think the import of his added remarks must be assessed in the context in which they were primarily made, namely in response to the jury's final question: "Is there any possible way we can have input into a recommendation for sentencing?" To which he replied in essence "... later on, once you have reached a verdict, we may have some discussions about that, but not at this stage of the game."  This falls short of an assurance that the jury would be able to make a recommendation, which is all they had asked about, and it certainly does not amount to a suggestion that, even if they should find the accused guilty, they need not be overly concerned lest the sentence fall too heavily upon him.

¶ 47      Indeed, the response begs the question. And following, as it does, immediately upon the trial judge having informed the jury that they were not to concern themselves with sentence, the response does so to such a degree as to virtually leave the question unanswered.  Taken at face value, there is little more to this than the jury having been told by the judge that he may discuss the subject of their question with them at a later stage. In other words, he deflected the question rather than meet it head on.

¶ 48      He might have done otherwise by informing the jury, for example, that while it is for the judge to impose sentence in accordance with the law if the jury finds the accused guilty, the jury must nevertheless be given an opportunity to make a recommendation going to the terms of the sentence. Had he said that, there might be something more to the matter, even though he would have been quite correct. In that event, the jury might conceivably have been induced to find, more readily than otherwise, that the accused was guilty as charged.  But as it is phrased,  the response cannot be said to have left the jury with the understanding that the impact upon Mr. Latimer of a finding of guilt could be significantly tempered by the jury by means of a recommendation as to sentence.

¶ 49      Viewed in this light, it is difficult to see any real prejudice to the accused, much less prejudice to the extent of that identified in the McLean and Cracknell decisions. Indeed we cannot see how the trial judge's added remarks served to deny Mr. Latimer a fair trial by depriving him of a more deliberate and certain verdict. And so we cannot give effect to this ground of appeal.

¶ 50      It follows, then, that we have decided to dismiss the appeal against conviction.

2. The Appeal Against Sentence

¶ 51      Once the jury delivered its verdict, the trial judge invited them, as required by section 745.2 of the Criminal Code, to return to the jury room for the purposes of determining if they wished to recommend an increase in the minimum term of 10 years that Mr. Latimer would have to serve before becoming eligible for parole. Shortly afterwards the jury came back and asked the judge a question: "Can we recommend less than ten years before parole?"  Mr. Justice Noble responded by saying,

The jury then resumed its deliberations and soon returned to express its views:  "We recommend that Robert Latimer be eligible for parole after one year."

¶ 52      It was not, of course, open to the trial judge to act on this recommendation, having regard for the provisions of sections 235 and 745 of the Criminal Code. As noted above, these sections prescribe a mandatory minimum sentence of life imprisonment without eligibility for parole for at least ten years in the case of second degree murder.

¶ 53      Even so, Mr. Brayford suggested that some other, lesser sentence could be imposed, having regard for the Charter of Rights and Freedoms. He submitted that the mandatory minimum sentence amounted in the circumstances of this case to a violation of Mr. Latimer's constitutional right under section 12 of the Charter not to be subjected to any "cruel and unusual punishment." Accordingly he asked that an exemption from these provisions of the Criminal Code be granted to Mr. Latimer pursuant to section 24(1) of the Charter. He suggested in the alternative that these provisions of the Criminal Code might be seen as unconstitutional in light of section 12 of the Charter and be treated therefore as invalid pursuant to section 52(1) of the Constitution Act, 1982.

¶ 54      Counsel for the Crown opposed this. He contended that these provisions of the Criminal Code were not inconsistent with section 12 of the Charter and had therefore to be taken as valid. That being so, he added, the trial judge was unable to exempt Mr. Latimer from the operation of these provisions. Furthermore, counsel argued, the trial judge was foreclosed from doing so by the earlier judgment of this Court rejecting such an exemption.

¶ 55      Upon reflection, Noble J. decided that a sentence of life imprisonment without the prospect of parole for ten years would constitute "cruel and unusual punishment" in these circumstances, having regard for section 12 of the Charter and the interpretation of this expression by the Supreme Court of Canada in such cases as  R. v. Smith, [1987] 1 S.C.R. 1045 and R. v. Goltz, [1991] 3 S.C.R. 485.

¶ 56      That being so, he decided to grant the exemption, noting generally that such exemptions had been granted from time to time in relation to punitive statutory provisions imposing grossly disproportionate punishments. He also noted that counsel for Mr. Latimer had more or less conceded that the relevant provisions of sections 235 and 745 of the Criminal Code were not unconstitutional, which is to say inconsistent with section 12 of the Charter as contemplated by section 52(1) of the Constitution Act, 1982 and therefore of no force or effect. However, he regarded this as inconsequential, for he was of the view it was unnecessary to the grant of the exemption that these provisions of the Code first be found to be inconsistent with section 12 of the Charter. And in deciding to grant the exemption, he rejected the contention of Crown counsel that the earlier judgment  of this Court precluded him from doing so, saying he was not bound thereby  because of differences in the two cases.

¶ 57      In effect, he identified three such differences: First, there was the evidence  that Mr. Latimer had acted out of compassion and taken his daughter's life not because she was disabled, as was taken to have been the case in the Court of Appeal, but because she was suffering so much pain. Second, there was the additional evidence of several more witnesses, including Dr. Menzies, who confirmed that Mr. Latimer felt compelled to act out of concern for the child's present and future pain. Finally, there was the jury's recommendation that Mr. Latimer be eligible for parole after serving only a year in prison, a matter which if ignored would bring the administration of justice into disrepute in the eyes of many people.

¶ 58      And so Mr. Justice Noble distinguished the earlier case and departed from the judgment of this Court, although he went on to rely upon the dissenting reasons of Chief Justice Bayda in deciding to grant the exemption. In conclusion, he expressed the opinion that, if this case did not warrant the grant of such exemption, few if any such cases featuring "compassionate homicide" would qualify:

The trial judge went on, as previously mentioned, to impose a sentence of one year in prison, to be followed by a one year period of probation.

¶ 59      The Attorney General then appealed, stating that the trial judge had erred in four respects: (i) in failing to apply the judgment of this Court in R. v. Latimer (1995) 99 C.C.C. (3d) 481, disallowing Mr. Latimer's earlier claim to the exemption at issue; (ii) in granting the exemption without first finding, pursuant to 52(1) of the Constitution Act, 1982, that the sentencing provisions in question were inconsistent with section 12 of the Charter and therefore of no force or effect;  (iii) in deciding to grant the exemption without regard for sections 748 and 749 of the Criminal Code by which Parliament left the Crown entirely free, acting through the Governor General in Council, to extend the royal prerogative of mercy to persons sentenced to terms of imprisonment under any Act of Parliament, including the Criminal Code; and  (iv) in imposing an illegal sentence, contrary to sections 235 and 745 of the Criminal Code.

¶ 60      At the outset, we may say that in our respectful opinion the learned trial judge took too much upon himself in bypassing the judgment of this Court, the  direction of Parliament, and the executive power of clemency referred to in section 748 of the Criminal Code. The section expressly recognizes that this power extends to persons sentenced to imprisonment on the authority of the Code, including those imprisoned for second degree murder and not eligible for parole for at least ten years. Indeed we are of the view the trial judge erred in not dismissing the application for an order exempting the accused from the combined operation of sections 235 and 745.2 of the Criminal Code and sentencing him in accordance with those sections, following this Court's earlier judgment.

¶ 61      As we see it, the trial judge was bound by the earlier judgment of this Court, for there was no material difference between the case before him and the previous case. Certainly there was no relevant difference in the act of the accused and his accompanying state of mind.  The trial judge's suggestion that this Court had predicated its judgment upon the fact Mr. Latimer had taken the life of his child not because she was in pain but because she was disabled, is not only unrealistic, it is simply not tenable in light of the previous reasons for judgment.  In delivering the judgement of the Court on the issue of sentence, Tallis J.A. summed up the actions of the accused in these words:

¶ 62      Nor, as suggested by the trial judge, are the two cases distinguishable on the basis additional evidence was adduced at the second trial. The evidentiary differences between the first and second trials were more quantitative than qualitative. For what it was worth in the circumstances, including the absence of testimony from the accused, even the opinion evidence of Dr. Menzies pertaining to the accused's motivation in killing his daughter served to add little to what had already been known or presumed.

¶ 63      Finally, the jury's recommendation that the accused be eligible for parole after spending a year in custody did not constitute a legitimate distinguishing factor. The recommendation was not only uninformed, in the sense the jury had not been informed of the purposes and principles of sentencing or the policy considerations underlying Parliament's enactment of sections 235, 745.2, and 748 of the Criminal Code, but it also had no legal effect. Section 745.2 only allows for a recommendation concerning "a number of years that is more than ten but no more than twenty-five".

¶ 64      We are therefore of the opinion that it was not open to the trial judge to depart from this Court's earlier judgment. It follows, then, that he was bound to dismiss the application for an order exempting Mr. Latimer from the operation of sections 235 and 745.2 of the Code.

¶ 65      Nor are we minded to depart from that judgment. Indeed, we can see no supportable basis for doing so, having regard for the reasons for judgment and the practice by which intermediate courts of appeal are bound by their previous judgments in the absence of the extraordinary.

¶ 66      As the reasons make clear, and as we have already said, the previous judgment was rendered upon an evidentiary base that did not differ materially from that  now before us. Similarly, the defence of necessity has been rejected, meaning of course that Mr. Latimer is answerable for the inexcusable murder of Tracey Latimer, a murder that has been classified by Parliament, for sentencing purposes, as second degree. The judgment in the previous case was rendered on the assumption it was open to the Court in appropriate circumstances to grant constitutional exemptions, and as the reasons demonstrate the judgment was founded upon the application of the controlling principles found in  R. v. Luxton [1990] 2 S.C.R. 711.

¶ 67      In Luxton's case the Supreme Court of Canada decided that the mandatory sentence of life imprisonment for first degree murder, without eligibility for parole for at least twenty five years, did not represent cruel and unusual punishment within the meaning of s. 12 of the Charter. That decision was predicated at the outset upon respect for the wisdom of Parliament and its will. As Lamer C.J.C. put it in speaking for the Court:

¶ 68      The earlier judgment of this Court is heavily reliant upon this decision,  as is apparent from the concluding paragraphs of the reasons for judgment:

¶ 69      These references to the royal prerogative of mercy, including that appearing in Luxton's case upon which this judgment is based, bring to mind the century old case of The Queen v. Dudley and Stephens [1884-85] 14 Q.B. Div. 273. There a man, lost at sea and starving to death along with others, turned to a weakened boy lying at the bottom of the boat, prayed for forgiveness, and killed the boy for the purpose of saving himself and the others from starvation. He was found guilty of murder, on a special verdict handed down by a reluctant jury and affirmed in law by a five judge court, and was thereupon sentenced to death in accordance with the law. In delivering the views of the court upon the matter, Coleridge C.J. noted the inherent difficulty in finding the accused guilty of murder and sentencing him accordingly:

The sentence was afterwards commuted by the Crown to six months imprisonment in exercise of the royal prerogative of mercy.

¶ 70      This is an aside, however, for the point at issue is that the law has not been changed since this Court rendered its previous judgment, and counsel could point us to no more recent authority bearing upon the case. Counsel for the Attorney General referred to some added authority on whether it is possible to grant a constitutional exemption from the operation of any of the provisions of the Criminal Code in the absence of a finding, pursuant to section 52(1) of the Constitution Act, 1982, that such provisions are inconsistent with the Charter and therefore of no force or effect to the extent of such inconsistency. This is neither here nor there, however, for the purpose at hand, and it is unnecessary to consider the matter.

¶ 71      Nor is it necessary to take up the submission made on behalf of the Intervenors, who stood four-square against any diminution by the courts of the consequences prescribed by Parliament for murder, including the intentional taking of the life of a disabled person, however badly disabled.

¶ 72      It is unnecessary to do so because we are not minded, as we have said, to  depart from the previous judgment of this Court. There is no tenable basis for doing so: the circumstances remain materially the same; the previous judgment was a considered one, made upon a complete foundation, as the reasons therefor demonstrate; and the judgment has not since been affected by any change in the law or by any more recent authority than that referred to in the previous reasons for judgment.

¶ 73      We have decided for the above reasons to allow the appeal of the Attorney General against sentence. Accordingly the sentence imposed in the Court of Queen's Bench is set aside and in its place the minimum mandatory sentence prescribed by the combination of sections 235 and 745.2 of the Criminal Code is imposed.

CAMERON J.A.
VANCISE J.A.:— I concur.
WAKELING J.A.:— I concur.