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CRIMINAL
REPORTS
Fifth Series/Cinquieme serie
Recueil de jurisprudence en droit criminel

[Indexed as: R. v. Latimer]
Robert William Latimer, Appellant v. Her Majesty the Queen,
Respondent and The Attorney General of Canada, the Attorney
General for Ontario, the Canadian Civil Liberties Association, the
Canadian AIDS Society, the Council of Canadians with Disabilities,
The Saskatchewan Voice of People with Disabilities, the Canadian
Association for Community Living, People in Equal Participation Inc.,
DAWN Canada: Disabled Women's Network Canada, People First of
Canada, the Catholic Group for Health, Justice and Life, the
Evangelical Fellowship of Canada, the Christian Medical and Dental
Society and Physicians for Life, Intervenors

Supreme Court of Canada

McLachlin C.J.C., L'Heureux-Dube, Gonthier, Iacobucci, Major,
Binnie, Arbour JJ.

Heard: June 14, 2000

Judgment: January 18, 2001*

Docket: 26980, 2001 SCC 1

Edward L. Greenspan. Q.C., Mark Brayford, Q.C., Marie Henein, for Appellant
Kenneth W. MacKay, Q.C., Graeme G. Mitchell, Q.C., for Repondent
Robert J. Frater, Bradley Allison, for Intervenor, Attorney General of Canada
Michael Bernstein, for Intervenor, Attorney General for Ontario
Kent Roach, for Intervenor, Canadian Civil Liberties Association
R. Douglas Elliott, Patricia A. Lefebour, for Intervenor, Canadian AIDS
Society
Robert G. Richards, Q.C., Heather D. Heavin, for Intervenors, Council of
Canadians with Disabilities, Saskatchewan Voice of People with Disabilit-
ies, Canadian Association for Community Living, People in Equal Partici-
pation Inc., DAWN Canada: DisAbled Women's Network Canada, People
First of Canada
William J. Sammon, for Intervenor, Catholic Group for Health, Justice and Life
*A corrigendum issued by the court on January 18, 2001 has been incorporated herein.
David M. Brown, Janet Epp Buckingham, for Intervenors, Evangelical Fellow-
Ship of Canada, Christian Medical and Dental Society and Physicians for
Life

Defences ---- Necessity ---- No air of reality to defence where accused charged with
second degree murder of severely disabled daughter ---- Not sufficient evidence on
any of three requirements of immediate peril, no reasonable legal alternative and
proportionality ---- Modified objective test applying to first two requirements ---- As-
suming proportionality could be met in homicide situation, applying objective test,
harm inflicted being immeasurably more serious that daughter's pain from antici-
pated operation.
constitutional issues ---- Charter of Rights and Freedoms ---- Rights and free-
doms ---- Life, liberty and security of person ---- Right to make full answer and de-
fence ---- "Case to meet" principle under s. 7 not requiring judge to make all rulings
before counsel addresses ---- No unfair trial resulting where trial judge withdrawing
defence of necessity after counsel addresses in second degree murder trial of father
accused of killing severely disabled daughter ---- Imperfect approach of trial judge
not ambushing defence nor catching him unaware ---- Right to fair trial not includ-
ing right to trial with increasing possibility of jury nullification ----Trial judge's
comment about jury involvement in sentencing not resulting in unfair trial.
Constitutional issues ---- Charter of Rights and Freedoms ---- Rights and free-
doms ---- Cruel and unusual punishment ---- Minimum sentence of life imprisonment
and no parole eligibility for 10 years under ss. 235 and 745© of Criminal Code not
violating s. 12 of Charter where accused convicted of second degree murder after he
killed his severely disabled daughter ---- Gravity of offence not outweighed by indi-
vidual circumstances and sentence justified by need for denunciation ---- Not neces-
sary to consider whether constitutional exemption should have been granted.

The accused was charged with first degree murder following the death of T, his 12-year-
old daughter, who had a severe form of cerebral palsy. T was quadriplegic and her physi-
cal condition rendered her immobile. Her condition was permanent, caused by neurologi-
cal damage at the time of her birth. She was said to have the mental capacity of a four-
month-old baby, and could communicate only by means of facial expressions, laughter
and crying. She was completely dependent on others for her care. She suffered five to six
seizures daily. It was thought that she experienced a great deal of pain. This could not be
reduced by medication since this would conflict with her anti-epileptic medication and
her difficult in swallowing. She had to be spoon-fed, and her lack of nutrients caused
weight loss. There was evidence that T could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that might
also have allowed for more effective pain medication to be administered. The accused
and his wife rejected this option as intrusive and the first step to artificially preserving her
life. T had a serious disability but was not terminally ill. She had undergone numerous
surgeries. Including the implanting of metal rods to support her spine. The Latimers
learned that the doctors wished to perfom additional surgery on a dislocated hip which
involved removing her upper thigh bone. According to the accused's wife, they perceived
this as mutilation.
The accused decided to take his daughter's life. While his wife and T's siblings were at
church, he carried T to his pickup truck, seated her in the cab, and inserted a hose from
The truck's exhaust pipe into the cab. She died from the carbon monoxide. The accused at
First maintained that T had simply passed away in her sleep, but later confessed to having
taken her life. Charged with first degree murder, the jury found him guilty of second
Degree murder. The sentence imposed was life imprisonment without parole eligibility for
10 years. The majority of the Saskatchewan Court of Appeal upheld the accused's con-
viction and sentence. Bayda C.J.S. favoured a constitutional exemption from the mini-
mum sentence. The Supreme Court ordered a new trial on the basis of jury tampering
with the jury selection process.
On the second trial, a jury again convicted of second degree murder. During the second
trial, defence counsel asked the trial judge for a ruling, in advance of his closing submis-
sions, on whether the jury could consider the defence of necessity. The trial judge told
counsel that he would rule on necessity after the closing submissions. Some of the de-
fence counsel's address referred to the defence of necessity. The judge later ruled that the
defence was not available. In the course of its deliberations, the jury sent the trial judge a
note inquiring whether it could have any input on sentencing. The trial judge told the jury
it was not to concern itself with the penalty. He added: "it may be that later on, once you
have reached a verdict, you ---- we will have some discussions about that". After the jury
returned with a guilty verdict, the trial judge explained the mandatory minimum sentence
of life imprisonment, and asked the jury whether it had any recommendation as to
whether the ineligibility for parole should exceed the minimum period of 10 years. Some
jury members appeared upset, according to the trial judge, and later sent a note asking
him if they could recommend less than the 10-year minimum. The trial judge explained
that the Criminal Code provided only for a recommendation over the 10-year minimum,
but suggested that the jury could make any recommendation it liked. The jury recom-
mended one year before parole eligibility. The trial judge the granted a constitutional
exemption from the mandatory minimum sentence, sentencing the accused to one year of
imprisonment, and one year on probation. The Saskatchewan Court of Appeal affirmed
the conviction but reversed the sentence. It imposed the mandatory minimum sentence of
life imprisonment without parole eligibility for 10 years.
Held: The appeals against conviction and sentence were dismissed.
There was no air of reality to the defence of necessity. The defence of necessity is narrow
and of limited application in criminal law. The accused must establish the existence of
the three elements of the defence. First, there is the requirement of imminent peril or
danger. Second, the accused must have had no reasonable legal alternative to the course
of action he or she undertook. Third, there must be proportionality between the harm
inflicted and the harm avoided. The test for the first two requirements are to be evaluated
on a modified objective test which can take into account the accused's perceptions as
long as they are reasonable. The test of proportionality requires that the harm avoided
must be either comparable to or clearly greater that the harm inflicted. The test must be
objective as the test is a matter of community standards infused with constitutional stan-
dards such as, in the case, the s. 15(1) equality rights of the disabled. Here, the trial judge
was correct to remove the defence from the jury since there was no air of reality to any of
the three requirements for necessity. The accused did not himself face any peril, and T's
ongoing pain did not constitute an emergency in this case. T's proposed surgery did not
pose and imminent threat to her life, nor did her medical condition. It was not reasonable
for the accused to form the belief that further surgery amounted to imminent peril, partic-
ularly when better pain management was available. The accused had at least one reasona-
ble legal alternative to killing his daughter: he could have struggled on, with what was
unquestionably a difficult situation, by helping T to live and by minimizing her pain as
much as possible or by permitting the insertion of a feeding tube or by relying on a group
home. Leaving open the question of whether the proportionality requirement can ever be
met in a homicide situation, the harm avoided in this case was, compared to death, com-
pletely disproportionate. 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.
The timing of the removal of the defence of necessity from the jury had not rendered the
accused's trial unfair contrary to s. 7 of the Charter. The "case to meet" principle of the
accused's right to make full answer and defence does not require that the trial judge make
all ruling prior to counsel addressing the jury. It is customary and in most instances
preferable for the trial judge to rule on the availability of a defence prior to closing ad-
dresses to the jury, but in circumstances of this case, the fairness of the trial had not
been affected. While the trial judge's approach was imperfect, the benchmark for measur-
ing trial fairness is not perfection. The trial judge's decision did not ambush the accused
nor should it have caught him unaware. Surprise, if any, was minimal and there was no
prejudice.
|The trial judge did not prejudice the accused's rights in replying to the question from the
jury on whether it could offer input on sentencing. The trial did not become unfair simply
because the trial judge undermined the jury's de facto power to nullify. In most if not all
cases, jury nullification will not be a valid factor in analyzing trial fairness for the ac-
cused. Guarding against jury nullification is a desirable and legitimate exercise for a trial
judge: in fact, a judge is required to take steps to ensure that the jury will apply the law
properly.
The mandatory minimum sentence for second degree murder in this case did not amount
to cruel and unusual punishment within the meaning of s. 12 of the Charter. There was
therefore, no basis for granting a constitutional exemption. Since in substance the accused
had conceded the general constitutionality of ss. 235 and 745(c) of the Criminal Code as
these sections were applied in combination, this appeal was restricted to a consideration
of the particularized inquiry. In applying s. 12, the gravity of the offence, as well as the
particular circumstances of the offender and the offence, must be considered. Here, the
minimum mandatory sentence was not grossly disproportionate. Murder is the most seri-
ous crime known to law. Even if the gravity of second degree murder is reduced in com-
parison to first degree murder, it is an offence accompanied by an extremely high degree
of criminal culpability. Here, the gravest possible consequences resulted from an act of
The most serious and morally blameworthy intentionally. In considering the characteris-
tics of the offender and the particular circumstances of the offence, any aggravating cir-
cumstances had to be weighed against any mitigating circumstances. Due consideration
had to be given to the accused's initial attempts to conceal his actions, his lack of re-
morse, his position of trust, the significant degree of planning and premeditation, and T's
extreme vulnerability. On the other hand, the accused's good character and standing in
the community, his tortured anxiety about T's well-being, and his laudable perseverance
as a caring and involved parent had to be considered. The personal characteristics and
particular circumstances of this case did not displace the serious gravity of this offence.
The sentence was consistent with a number of valid penological goals and sentencing
principles. Although in this case the sentencing principles of rehabilitation, specific deter-
rence and protection were not triggered, the mandatory minimum sentence played an im-
portant role in denouncing murder.
Section 749 of the Criminal Code provides for the royal prerogative of mercy, which is a
Matter for the executive, not the courts.
Cases considered / Jurisprudence citee:
Perka v. R., [1984] 2 S.C.R. 232, 13 D.L.R. (4th) 1, 55 N.R. 1, [1984] 6 W.W.R.289, 14
        C.C.C. (3d) 385, 42 C.R. (3d) 113 (S.C.C.) ---- applied
R. v. Cracknell, [1931] O.R. 634, 56 C.C.C. 190, [1931] 4 D.L.R. 657 (Ont. C.A.) ----
        referred to
R. v. Dudley (1884), 14 Q.B.D. 273, 15 Cox C.C. 624 (Eng. Q.B.) ---- considered
R. v. Goltz, 8 C.R. (4th) 82, 5 B.C.A.C. 161, 11 W.A.C. 161, [1991] 3 S.C.R. 485, 7
        C.R.R. (2d) 1, 67 C.C.C. (3d) 481, 61 B.C.L.R. (2d) 145, 131 N.R. 1, 31 M. V.R. (2d)
        137 (S.C.C.) ---- considered
R. v. Guiller (1985), 48 C.R. (3d) 226, 25 C.R.R. 273 (Ont. Dist. Ct.) ---- considered
R. v. Hibbert, 40 C.R. (4th) 141, 99 C.C.C. (3d) 193, 184 N.R. 165, 84 O.A.C. 161,
        [1995] 2 S.C.R. 973 (S.C.C.) ---- considered
R. v. Howe, [1987] 1 A.C. 417, [1987] 2 W.L.R. 568 (U.K. H.L.) ---- considered
R. v. L. (T.P.), 80 N.R. 161, [1987] 2 S.C.R. 309, 44 D.L.R. (4th) 193, 82 N.S.R. (2d)
        271, 37 C.C.C. (3d) 1, 61 C.R. (3d) 1, 32 C.R.R. 41, 207 A.P.R. 271 (S.C.C.) ----
         referred to
R. v. Latimer, {1995] 8 W.W.R. 609, 41 C.R. (4th) 1, 126 D.L.R. (4th) 203, 99 C.C.C.
        (3d) 481, 134 Sask. R. 1, 101 W.A.C. 1 (Sask. C.A.) ---- referred to
R. v. Latimer, 112 C.C.C (3d) 193, 4 C.R. (5th) 1, [1997] 2 W.W.R. 525, 142 D.L.R.
        (4th) 577, 207 N.R. 215, 41 C.R.R. (2d) 281, 152 Sask. R. 1, 140 W.A.C. 1, [1997] 1
        S.C.R. 217 (S.C.C.) ---- referred to
R. v. Loughnan, [1981] V.R. 443 (Australia Vic. Sup. Ct.) ---- considered
R. v. Luxton, [1990] 6 W.W.R. 137, 76 Alta. L.R. (2d) 43, 79 C.R. (3d) 193, [1990] 2
        S.C.R. 711, 58 C.C.C. (3d) 449, 112 N.R. 193, 50 C.R.R. 175, 111 A.R. 161
        (S.C.C.) ----referred to
R. v. M. (C.A.), 46 C.R. (4th) 269, 194 N.R. 321, 105 C.C.C. (3d) 327, 73 B.C.A.C. 81,
        120 W.A.C. 81, [1996] 1 S.C.R. 500 (S.C.C.) ---- considered
R. v. Martineau, [1990] 6 W.W.R. 97, 112 N.R. 83, 58 C.C.C. (3d) 353, 76 Alta. L.R.
        (2d) 1, 79 C.R. (3d) 129, 50 C.R.R. 110, 109 A.R. 321, [1990] 2 S.C.R. 633
        (S.C.C.) ---- considered
R. v. McLean, [1993] S.C.R. 688, 61 C.C.C. 9, [1934] 2 D.L.R. 440 (S.C.C.) ---- referred
        to
R. v. Miller (1976), [1977] 2 S.C.R. 680, 31 C.C.C. (2d) 177, [1976] 5 W.W.R. 711, 38
        C.R.N.S. 139, 70 D.L.R. (3d) 324, 11 N.R. 386 (S.C.C.) ---- applied
R. V. Morgentaler, (sub nom. R. v. Morgentaler (No. 2)) [1988] 1 S.C.R. 30, 44 D.L.R.
        (4th) 385, 26 O.A.C. 1, 37 C.C.C. (3d) 449, 62 C.R. (3d) 1, 31 C.R.R. 1, 82 N.R. 1,
        63 O.R. (2d) 281 (note) (S.C.C.) ---- considered
R. v. Morgentaler (No. 5) (1975), [1976] 1 S.C.R. 616, 30 C.R.N.S. 209, 4 N.R. 277, 20
        C.C.C. (2d) 449, 53 D.L.R. (3d) 161 (S.C.C.) ---- considered
R. v. Morrisey, 2000 SCC 39, 36 C.R. (5th) 85, 148 C.C.C. (3d) 1, 191 D.L.R. (4th) 86,
        259 N.R. 95 (S.C.C.) ---- applied
R. v. Mulvahill (1993), 21 B.C.A.C. 296, 37 W.A.C. 296 (B.C. C.A.) ---- considered
R. v. Osolin, 26 C.R. (4th) 1, 38 B.C.A.C. 81, 62 W.A.C. 81, 86 C.C.C. (3d) 481, [1993]
        4 S.C.R. 595, 162 N.R. 1, 109 D.L.R. (4th) 478, 19 C.R.R. (2d) 93 (S.C.C.) ----
        considered
R. v. Rose, 40 O.R. (3d) 576 (headnote only), 129 C.C.C. (3d) 449, 232 N.R. 83, 166
        D.L.R. (4th) 385, 20 C.R. (5th) 246, 115 O.A.C. 201, [1998] 3 S.C.R. 262. 57 C.R.R.
        (2d) 219 (S.C.C.) ---- considered
R. v. Sarson, 197 N.R. 125, 107 C.C.C. (3d) 21, 135 D.L.R. (4th) 402, 36 C.R.R. (2d) 1,
        91 O.A.C. 124, 49 C.R. (4th) 75, [1996] 2 S.C.R. 223 (S.C.C.) ---- considered
R. v. Shipley (1784), 99 E.R. 774, 21 State Tr. 847, 3 Term Rep. 428n, 4 Dougl. 73 (Eng.
        K.B.) ---- considered
R. v. Smith, [1987] 5 W.W.R. 1, [1987] 1 S.C.R. 1045, (sub nom. Smith v. R.) 40 D.L.R.
        (4th) 435, 75 N.R. 321, 15 B.C.L.R. (2d) 273, (sub nom. Smith v. R.) 34 C.C.C. (3d)
        97, 58 C.R. (3d) 193, (sub nom. Smith v. R.) 31 C.R.R. 193 (S.C.C.) ---- considered
R. v. Stevenson (1990), 58 C.C.C. (3d) 464, 41 O.A.C. 1 (Ont. C.A.) ---- referred to
R. v. Underwood (1997), 221 N.R. 161, 121 C.C.C. (3d) 117, 155 D.L.R. (4th) 13, 12
        C.R. (5th) 241, 48 C.R.R. (2d) 205, [1998] 1 S.C.R. 77, 209 A.R. 276, 160 W.A.C.
        276, [1999] 4 W.W.R. 326, 67 Alta. L.R. (3d) 81 (S.C.C.) ---- distinguished
        Southwark London Borough Council v. Williams, [1971] Ch. 734, [1971] 2 All E.R. 175
        (Eng. C.A.) ---- considered
Steele v. Mountain Institution, [1990] 6 W.W.R. 673, 121 N.R. 198, [1990] 2 S.C.R.
        1385, 51 B.C.L.R. (2d) 1, 60 C.C.C. (3d) 1, 80 C.R. (3d) 257, 2 C.R.R. (2d) 304
        (S.C.C.) ---- considered
United States v. Holmes (1842), 26 F. Cas. 360 (U.S. Pa.) ---- considered

Statutes considered / Legislation citee:

Canadian Charter of Rights and Freedoms/Charte canadienne des droits et libertes, Part
1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982,
c. 11/Partie I de la Loi constitutionnelle de 1982, constituant l'annexe B de la Loi de
1982 sur le Canada (R.-U.), 1982, c. 11
        Generally/en general ---- referred to
        s. 1 ---- considered
        s. 7 ---- considered
        s. 12 ---- considered
        s. 15(1) ---- considered
Criminal Code/Code criminel, R.S.C./L.R.C. 1985, c. C-46
        Generally/en general ---- referred to
        s. 235 ---- considered
        s. 718 [rep. & sub./abr. et rempl. 1995, c. 22, s. 6] ---- considered
        s. 745(c) [en./ad. 1995, c. 22. S. 6] ---- considered
        s. 745.2 [en./ad. 1995, c. 22, s. 6] ---- considered
        s. 749 [rep. & sub./abr. Et rempl. 1995, c. 22, s. 6] ---- considered

APPEAL by accused from judgement reported at (1998), 131 C.C.C. (3d) 191, 22 C.R.
(5th) 380, 172 Sask. R. 161, 185 W.A.C. 161, [1999] 6 W.W.R. 118 (Sask. C.A.), dis-
missing accused's appeal from conviction and allowing Crown appeal from sentence im-
posed upon conviction of accused on charge of second degree murder.

Per curiam:

1     This appeal arises from the death of Tracy Latimer, a 12-year-old girl who
Had a severe form of cerebral palsy. Her father, Robert Latimer, took her life
Some seven years ago. He was found guilty of second degree murder. This ap-
Peal deals with three questions of law arising from his trial. First, did the trial
Judge mishandle the defence of necessity, resulting in an unfair trial? Second,
Was the trial unfair because the trial judge misled the jury into believing it would
Have some input into the appropriate sentence? Third, does the imposition of the
Mandatory minimum sentence for second degree murder constitute "cruel and
Unusual punishment" in this case, so that Mr. Latimer ("the appellant") should
Receive a constitutional exemption from the minimum sentence?

2     We conclude that the answer to all three questions is no. The defence of
Necessity is narrow and of limited application in criminal law. In this case, there
Was no air of reality to that defence. The trial judge was correct to conclude that
The jury should not consider necessity. While the timing of the removal of this
Defence from the jury's consideration was later in the trial than usual, it did not
render the appellant's trial unfair or violate his constitutional rights. On the sec-
ond issue, the trial judge did not prejudice the appellant's rights in replying to a
question from the jury on whether it could offer input on sentencing. In answer
to the third question, we conclude that the mandatory minimum sentence for
second degree murder in this case does not amount to cruel and unusual punish-
ment within the meaning of x. 12 of the Canadian Charter of Rights and Free-
doms. The test for what amounts to "cruel and unusual punishment" is a de-
manding one, and the appellant has not succeeded in showing that the sentence
in his case is "grossly disproportionate" to the punishment required for the most
serious crime known to law, murder.

3     We conclude that Mr. Latimer's conviction and sentence of life in prison
With a mandatory minimum of 10 years' imprisonment for second degree mur-
der should be upheld. This means that the appellant will not be eligible for pa-
role consideration for 10 years, unless the executive elects to exercise the power
to grant him clemency from this sentence, using the royal prerogative of mercy.
The Court's role is to determine the questions of law that arise in this appeal; the
matter of executive clemency remains in the realm of the executive, and it is
discussed later in these reasons.

4     The law has a long history of difficult cases. We recognize the questions that
Arise in Mr. Latimer's case are the sort that have divided Canadians and sparked
A national discourse. This judgement will not end that discourse.

5     Mr. Latimer perceived his daughter and family to be in a difficult and trying
Situation. It is apparent from the evidence in this case that he faced challenges of
The sort most Canadians can only imagine. His care of his daughter for many
Years was admirable. His decision to end his daughter's life was an error in
Judgement. The taking of another life represents the most serious crime in our
Criminal law.

I. Facts

6     The appellant, Robert Latimer farmed in Wilkie, Saskatchewan. His 12-
year-old daughter, Tracy, suffered a severe form of cerebral palsy. She was
quadriplegic and her physical condition rendered her immobile. She was bedrid-
den for much of the time. Her condition was a permanent one, caused by neuro-
logical damage at the time of her birth. Tracy was said to have the mental capac-
ity of a four-month-old baby, and she could communicate only by means of
facial expressions, laughter and crying. She was completely dependent on others
for her care. Tracy suffered seizures despite the medication she took. It was
thought she experienced a great deal of pain, and the pain could not be reduced
by medication since the pain medication conflicted with her anti-epileptic medi-
cation and her difficulty in swallowing. Tracy experienced five to six seizures
daily. She had to be spoon-fed, and her lack of nutrients caused weight loss.

7     There was evidence that Tracy could have been fed with a feeding tube into
her stomach, and option that would have improved her nutrition and health, and
that might also have allowed for more effective pain medication to be adminis-
tered. The Latimers rejected the feeding-tube option as being intrusive and as
representing the first step on a path to preserving Tracy's life artificially.

8     Tracy had a serious disability but she was not terminally ill. Her doctors
Anticipated that she would have to undergo repeated surgeries, her breathing dif-
ficulties had increased, but her life was not in its final stages.

9     Tracy enjoyed music, bonfires, being with her family and the circus. She
liked to play music on a radio, which she would use with a special button. Tracy
could apparently recognize family members and she would express joy at seeing
them. Tracy also loved being rocked gently by her parents.

10     Tracy underwent numerous surgeries in her short lifetime. In 1990, surgery
tried to balance the muscles around her pelvis. In 1992, it was used to reduce the
abnormal curvature in her back.
11     Like the majority of totally involved, quadriparetic children with cerebral
palsy, Tracy had developed scoliosis, an abnormal curvature and rotation in the
back, necessitating surgery to implant metal rods to support her spine. While it
was a successful procedure, further problems developed in Tracy's right hip: it
became dislocated and caused her considerable pain.

12     Tracy was scheduled to undergo further surgery on November 19, 1993.
this was to deal with her dislocated hip and, it was hoped, to lessen her constant
pain. The procedure involved removing her upper thigh bone which would
leave her lower leg loose without any connecting bone; it would be held in place
only by muscle and tissue. The anticipated recovery period for this surgery was
one year.

13     The Latimers were told that this procedure would cause pain, and the doctors
involved suggested that further surgery would be required in the future to relieve
the pain emanating from various joints in Tracy's body. According to the appel-
ant's wife, Laura Latimer, further surgery was perceived as mutilation. As a
result, Robert Latimer formed the view that his daughter's life was not worth
living.

14     In the weeks leading up to Tracy's death, the Latimers looked into the option
of placing Tracy in a group home in North Battleford. She had lived there be-
tween July and October 12, 1993, just prior to her death, while her mother was
pregnant. The Latimers applied to place Tracy in the home in October, but later
concluded they were not interested in permanently placing her in that home at
that time.

15     On October 12, 1993, after learning that the doctors wished to perform this
additional surgery, the appellant decided to take his daughter's life. On Sunday,
October 24, 1993, while his wife and Tracy's siblings were at church, Robert
Latimer carried Tracy to his pickup truck, seated her in the cab, and inserted a
hose from the truck's exhaust pipe into the cab. She died from the carbon
monoxide.

16     The police conducted an autopsy and discovered carbon monoxide in her
blood. The appellant at first maintained that Tracy simply passed away in her
sleep. He later confessed to having taken her life, and gave a statement to the
investigating police and partially re-enacted his actions on videotape. Mr. La-
timer also told police that he had considered giving Tracy an overdose of
valium, or "shooting her in the head".

17     Mr. Latimer has been convicted of murder twice in this case. He was ini-
tially charged with first degree murder and convicted by a jury of second degree
murder. The Court of Appeal for Saskatchewan upheld his conviction and life
sentence with no eligibility for parole for 10 years, with Bayda C.J.S. dissenting
on the sentence: R. v. Latimer (1995), 99 C.C.C. (3d) 481 (Sask. C.A.) ("Latimer
(No. 1)"). The case was then appealed to this Court: [1997] 1 S.C.R. 217
(S.C.C.). It turned out that the prosecutor had interfered with the jury selection
process. The Crown conceded that a new trial could not be avoided. In the sec-
ond trial, Mr. Latimer was again convicted of second degree murder, and it is
from that conviction that this appeal arises.

18     During the second trial, two things occurred that, the appellant submits, re-
sulted in an unfair trial. First, as counsel were about to make closing addresses
to the jury, defence counsel asked the trial judge for a ruling on whether the jury
could consider the defence of necessity, He wanted this ruling in advance of his
closing submissions, since he planned to tailor his address to the judge's ruling.
the trial judge, however, refused to make any ruling until after hearing coun-
sel's closing addresses. Defence counsel made submissions, including some on
the necessity defence. When counsel had concluded their addresses, the trial
judge ruled that the jury was not entitled to consider necessity.

19     Second, some time after beginning their deliberations, the jury sent a number
Of written questions to the trial judge, one of which was: "Is there any possible
Way we can have input to a recommendation for sentencing?" The trial judge
Told the jury it was not to concern itself with the penalty. He said:
        … the penalty in any of these charges is not the concern of the jury. Your
        concern is, as I said, the guilt or innocence of the accused, and you must
        reach ---- that's your job, your reach that conclusion, and don't concern your-
        self what the penalty might be. We say that because we don't want you to be
        influenced one way or the other with what that penalty is. So it may be that
        later on, once you have reached a verdict, you ---- we will have some discus-
        sion about that, but not at this stage of the game. You must just carry on and
        answer the question that was put to you, okay.

The appellant highlights the underlined passage as misleading the jury.

20     After the jury returned with a guilty verdict, the trial judge explained the
mandatory minimum sentence of life imprisonment, and asked the jury whether
it had any recommendation as to whether Mr. Latimer's ineligibility for parole
should exceed the minimum period of 10 years. Some jury members appeared
upset, according to the trial judge, and later on sent a note asking him if they could
recommend less than the 10-year minimum. The trial judge explained that the
Criminal Code provided only for a recommendation over the 10-year minimum,
but suggested that the jury could make any recommendation it liked. The jury
recommended one year before parole eligibility. The trial judge then granted a
constitutional exemption from the mandatory minimum sentence, sentencing the
apellant to one year of imprisonment and one year on probation, to be spent
Confined to his farm.

21     The Court of Appeal for Saskatchewan affirmed Mr. Latimer's conviction
but reversed the sentence. It imposed the mandatory minimum sentence for sec-
ond degree murder of life imprisonment without eligibility for parole for 10
years.

    II. Legislation

 22       Criminal Code, R.S.C. 1985, c. C-46
                235. (1) Every one who commits first degree murder or second degree mur-
                der is guilty of an indictable offence and shall be sentenced to imprisonment
                for life.
               (2) For the purposes of Part XXIII, the sentence of imprisonment for life
                prescribed by this section is a minimum punishment.
               745. Subject to section 745.1, the sentence to be pronounced against a person
               who is not to be sentenced to imprisonment for life shall be
                                                  …..

                     (c) in respect of a person who has been convicted of second degree
                     murder, that the person be sentenced to imprisonment for life with-
                     out eligibility for parole until the person has served at least ten years
                     of the sentence or such greater number of years, not being more than
                     twenty-five years, as has been substituted therefor pursuant to sec-
                     tion 745.4…
          Canadian Charter of Rights and Freedoms
                    1. The Canadian Charter of Rights and Freedoms guarantees the rights and
                    freedoms set out in it subject only to such reasonable limits prescribed by
                    law as can be demonstrably justified in a free and democratic society.
                   7. Everyone has the right to life, liberty and security of the person and the
                   right not to be deprived thereof except in accordance with the principles of
                   fundamental justice.
                  12. Everyone has the right not to be subjected to any cruel and unusual treat-
                   ment or punishment.

III. Judicial History

23 Mr. Latimer was tried by jury, during the course of which the trial judge
made two rulings (besides his handling of the jury's inquiry as to sentence) that
are at issue in this appeal. First, as previously outlined, he held that the jury was
not entitled to consider the defence of necessity. Second, the trial judge granted
a constitutional exemption from the mandatory minimum sentence for second
degree murder: (1997), 121 C.C.C. (3d) 326 (Sask. Q.B.). the trial judge con-
cluded that the mandatory sentence amounted to cruel and unusual punishment
in this case. He reasoned that the exemption was a valid and appropriate remedy,
given the particular circumstances of this offender, his motives, the public reac-
tion to the mandatory sentence in Mr. Latimer's first trial, and his reduced level
of criminal culpability.

24 The Court of Appeal for Saskatchewan dismissed the appeal from conviction
In a per curiam decision: (1998), 131 C.C.C. (3d) 191 (Sask. C.A.). The trial
Judge was correct to remove the defence of necessity from the jury, the Court of
Appeal held, and the timing of the trial judge's ruling did not result in an unfair
trial. The court reversed the trial judge's remedy of a constitutional exemption,
commenting, at p. 216, that "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". The Court of Appeal concluded that Mr. Latimer
must serve the mandatory 10-year sentence before parole eligibility.

IV. Issues

25     The issues divide into an appeal from conviction based on the following first
three grounds and an appeal from sentence based on the subsequent grounds,
and can be stated as:
        1. Should the jury have been entitled to consider the defence of
           necessity?
        2. Did the timing of the trial judge's ruling as to the availability of
           necessity render the appellant's trial unfair?
        3. Did the trial judge render the appellant's trial unfair because of
           trial procedures that might have lessened the chance of jury
           nullification?
        4. Would the imposition of the mandatory minimum sentence for
           second degree murder constitute cruel and unusual punishment,
           contrary to s. 12 of the Charter, in this case?
        5. If the answer to Question 4 is "yes", can that violation be saved
           under s. 1 as a reasonable limit demonstrably justified in a free
           and democratic society?
        6. If the answer to Question 5 is "no", should a constitutional ex-
           emption be granted?

V. Analysis

A Appeal against Conviction

(1) The Availability of the Defence of Necessity

(a) The Three Requirements for the Defence of Necessity

26     We propose to set out the requirements for the defence of necessity first,
before applying them to the facts of this appeal. The leading case on the defence
of necessity is Perka v. R, [1984] 2 S.C.R. 232 (S.C.C.). Dickson J., later C.J.,
outlined the rationale for the defence at p. 248:

        it rests on a realistic assessment of human weakness, recognizing that a lib-
        eral and humane criminal law cannot hold people to the strict obedience of
        laws in emergency situations where normal human instincts, whether of self-
        preservation or of altruism, overwhelmingly impel disobedience. The object-
        tivity of the criminal law is preserved; such acts are still wrongful, but in the
        circumstances they are excusable, Praise is indeed not bestowed, but pardon
        is. …

27     Dickson J. insisted that the defence of necessity be restricted to those rare
cases in which true "involuntariness" is present. The defence, he held, must be
"strictly controlled and scrupulously limited" (p. 250). It is well-established that
the defence of necessity must be of limited application. Were the criteria for the
defence loosened or approached purely subjectively, some fear, as did Edmund
Davies L.J., that necessity would "very easily become simply a mask for
Anarchy": Southwark London borough Council v. Williams, [1971] Ch. 734
(Eng. C.A.), at p. 746.

28     Perka outlined three elements that must be present for the defence of neces-
sity. First, there is the requirement of imminent peril or danger. Second, the ac-
cused must have had no reasonable legal alternative to the course of action he or
she undertook. Third, there must be proportionality between the harm inflicted
and the harm avoided.

29     To begin, there must be an urgent situation of "clear and imminent peril": R.
v. Morgentaler (No. 5) (1975), [1976] 1 S.C.R. 616 (S.C.C.), at p. 678. In short,
disaster must be imminent, or harm unavoidable and near. It is not enough that
the peril is foreseeable or likely; it must be on the verge of transpiring and virtu-
ally certain to occur. In Perka, Dickson J. expressed the requirement of immi-
nent peril at p. 251: "At a minimum the situation must be so emergent and the
peril must be so pressing that normal human instincts cry out for action and
make a counsel of patience unreasonable". The Perka case, at p. 251, also offers
the rationale for this requirement of immediate peril: "The requirement … tests
whether it was indeed unavoidable for the actor to act at all". Where the situa-
toin of peril clearly should have been foreseen and avoided, an accused person
cannot reasonably claim any immediate peril.

30     The second requirement for necessity is that there must be no reasonable
Legal alternative to disobeying the law. Perka proposed these questions, at pp.
251-52: "Given that the accused had to act, could he nevertheless realistically
have acted to avoid the peril or prevent the harm, without breaking the law? Was
there a legal way out?" (emphasis in original). If there was a reasonable legal
alternative to breaking the law, there is no necessity. It may be noted that the
requirement involves a realistic appreciation of the alternatives open to a person;
the accused need not be placed in the last resort imaginable, but he must have no
reasonable legal alternative. If an alternative to breaking the law exists, the de-
fence of necessity on this aspect fails.

31     The third requirement is that there be proportionality between the harm in-
flicted and the harm avoided. The harm inflicted must not be disproportionate to
the harm the accused sought to avoid. See Perka, per Dickson J., at p. 252:
        No rational criminal justice system, no matter how humane or liberal, could
        excuse the infliction of a greater harm to allow the actor to avert a lesser evil.

        In such circumstances we expect the individual to bear the harm and refrain
        from acting illegally. If he cannot control himself we will not excuse him.

evaluating proportionality can be difficult. It may be easy to conclude that there
is no proportionality in some cases, like the example given in Perka of the per-
son who blows up a city to avoid breaking a finger. Where proportionality can
quickly be dismissed, it makes sense for a trial judge to do so and rule out the
defence of necessity before considering the other requirements for necessity. But
most situations fall into a grey area that requires a difficult balancing of harms.
in this regard, it should be noted that the requirement is not that one harm (the
harm avoided) must always clearly outweigh the other (the harm inflicted).
Rather, the two harms must, at a minimum, be of a comparable gravity. That is,
the harm avoided must be either comparable to, or clearly greater than, the harm
inflicted. As the Supreme Court of Victoria in Australia has put it, the harm
inflicted "must not be out of proportion to the peril to be avoided": R. v.
Loughnan, [1981] V.R. 443 (Australia Vic. Sup. Ct.), at p. 448.

32     Before applying the three requirements of the necessity defence to the facts
of this case, we need to determine what test governs necessity. Is the standard
objective or subjective? A subjective test would be met if the person believed he
or she was in imminent peril with no reasonable legal alternative to committing
the offence. Conversely, an objective test would not assess what the accused
believed; it would consider whether in fact the person was in peril with no rea-
sonable legal alternative. A modified objective test falls somewhere between the
two. It involves an objective evaluation, but one that takes into account the situ-
ation and characteristics of the particular accused person. We conclude that, for
two of the three requirements for the necessity defence, the test should be the
modified objective test.

33     The first and second requirements ---- imminent peril and no reasonable legal
alternative ---- must be evaluated on the modified objective standard described
above. As expressed in Perka, necessity is rooted in an objective standard: "in-
voluntariness is measured on the basis of society's expectation of appropriate
and normal resistance to pressure" (p.259). We would add that it is appropriate,
in evaluating the accused's conduct, to take into account personal characteristics
that legitimately affect what may be expected of that person. The approach taken
in R. v. Hibbert, [1995] .C.R. 973 (S.C.C.), is instructive. Speaking for the
Court, Lamer C.J. held, at para. 59, that:

        It is appropriate to employ an objective standard that takes into account the
        particular circumstances of the accused, including his or her ability to per-
        ceive the existence of alternative course of action.

While an accused's perceptions of the surrounding facts may be highly relevant
In determining whether his conduct should be excused, those perceptions remain
Relevant only so long as they are reasonable. The accused person must, at the
Time of the act. Honestly believe, on reasonable grounds, that he faces a situation

of imminent peril that leaves no reasonable legal alternative open. There must be
a reasonable basis for the accused's beliefs and actions, but it would be proper to
take into account circumstances that legitimately affect the accused person's
ability to evaluate his situation. The test cannot be a subjective one, and the
accused who argues that he perceived imminent peril without an alternative
would only succeed with the defence of necessity if his belief was reasonable
giver his circumstances and attributes. We leave aside for a case in which it
arises the possibility that an honestly held but mistaken belief could ground a
"mistake of fact" argument on then separated inquiry into mens rea.

34     The third requirement for the defence of necessity, proportionality, must be
measured on an objective standard, as it would violate fundamental principles of
the criminal law to do otherwise. Evaluating the nature of an act is fundamen-
tally a determination reflecting society's values as to what is appropriate and
what represents transgression. Some insight into this requirement is provided
by George Fletcher, in a passage from Rethinking Criminal Law (1978), at p.
804. Fletcher spoke of the comparison between the harm inflicted and the harm
avoided, and suggested that there was a threshold at which a person must be
expected to suffer the harm rather than break the law. He continued:

        Determining this threshold is patently a matter of moral judgement about what
        we expect people to be able to resist in trying situations. A valuable aid in
        making that judgement is comparing the competing interests at stake and as-
        sessing the degree to which the actor inflicts harm beyond the benefit that
        accrues from his action.

The evaluation of the seriousness of the harms must be objective. A subjective
evaluation of the competing harms would, by definition, look at the matter from
the perspective of the accused person who seeks to avoid harm, usually to him-
self. The proper perspective, however, is an objective one, since evaluating the
gravity of the act is a matter of community standards infused with constitutional
considerations (such as, in this case, the s. 15(1) equality rights of the disabled).
We conclude that the proportionality requirement must be determined on a
purely objective standard.

The application of the Requirements for necessity in This Case

35     The inquiry here is not whether the defence of necessity should in fact ex-
cuse Mr. Latimer's actions, but whether the jury should have been left to con-
sider this defence. The correct test on that point is whether there is an air of
reality to the defence. In R. v. Osolin, [1993] 4 S.C.R. 595 (S.C.C.), at p. 676,
Cory J. stated:

        … a defence should not be put to the jury if a reasonable jury properly in-
        structed would have been unable to acquit on the basis of the evidence ten-
        dered in support of the defence. On the other hand, if a reasonable jury prop-
        erly instructed could acquit on the basis of the evidence tendered with regard
        to that defence, then it must be put to the jury. It is for the trial judge to

        decide whether the evidence is sufficient to warrant putting a defence to a
        jury as this is a question of law alone.

The question is whether there is sufficient evidence that, if believed, would al-
Low a reasonable jury ---- properly charged as acting judicially ---- to conclude
That the defence applied and acquit the accused.

36     For the necessity defence, the trial judge must be satisfied that there is evi-
dence sufficient to give an air of reality to each of the three requirements. If the
trial judge concludes that there is no air of reality to any one of the three require-
ments, the defence of necessity should not be left to the jury.

37     In this case, there was no air of reality to the three requirements of necessity.

38     The first requirement is imminent peril. It is not met in this case. The appel-
lant does not suggest he himself faced any peril; instead he identifies a peril to
his daughter, stemming from her upcoming surgery which he perceived as a
form of mutilation. Acute suffering can constitute imminent peril, but in this
case there was nothing to her medical condition that placed Tracy in a dangerous
situation where death was an alternative. Tracy was thought to be in pain before
the surgery, and the pain was expected to continue, or increase, following the
surgery. But that ongoing pain did not constitute an emergency in this case. To
borrow the language of Edmund Davies L.J. in Southwark London Borough
Council, supra, at p. 746, we are dealing not with an emergency but with "an
obstinate and long-standing state of affairs". Tracy's proposed surgery did not
pose an imminent threat to her life, nor did her medical condition. In fact,
Tracy's health might have improved had the Latimers not rejected the option of
relying on a feeding tube. Tracy's situation was not an emergency. The appellant
can be reasonably expected to have understood that reality. There was no evi-
dence of a legitimate psychological condition that rendered him unable to per-
ceive that there was no imminent peril. The appellant argued that, for him, fur-
ther surgery did amount to imminent peril. It was not reasonable for the
appellant to form this belief, particularly when better pain management was
available.

39     The second requirement for the necessity defence is that the accused had no
reasonable legal alternative to breaking the law. In this case, there is no air of
reality to the proposition that the appellant ad no reasonable legal alternative to
killing his daughter. He had at least one reasonable legal alternative: he could
have struggled on, with what was unquestionably a difficult situation, by helping
Tracy to live and by minimizing her pain as much as possible. The appellant
might have done so by using a feeding tube to improve her health and allow her
to take more effective pain medication, or he might have relied on the group
home that Tracy stayed at just before her death. The appellant may well have
thought the prospect of struggling on unbearably sad and demanding. It was a
human response that this alternative was unappealing. But it was a reasonable

legal alternative that the law requires a person to pursue before he can claim the
defence of necessity. The appellant was aware of this alternative but rejected it.

40     The third requirement for the necessity defence is proportionality; it requires
the trial judge to consider, as a question of law rather than fact, whether the
harm avoided was proportionate to the harm inflicted. It is difficult, at the con-
ceptual level, to imagine a circumstance in which the proportionality require-
ment could be met for a homicide. We leave open, if and until it arises, the
question of whether the proportionality requirement could be met in a homicide
situation. In England, the defence of necessity is probably not available for
homicide: R. v. Howe, [1987] 1 A.C. 417 (U.K. H.L.), at pp. 453 and 429; Smith
and Hogan, Criminal Law (9th ed. 1999), at pp. 249-51. The famous case of R.
v. Dudley (1884), 14 Q.B.D. 273 (Eng. Q.B.), involving cannibalism on the high
seas, is often cited as establishing the unavailability of the defence of necessity
for homicide, although the case is not conclusive: see Card, Cross and Jones,
Criminal Law (12th ed. 1992), at p. 352; Smith and Hogan, supra, at pp. 249
and 251. The Law Reform Commission of Canada has suggested the defence
should not be available for a person who intentionally kills or seriously harms
another person: Report on Recodifying Criminal Law (1987), at p. 36. American
jurisdictions are divided on this question, with a number of them denying the
necessity defence for murder: P. H. Robinson, Criminal Law Defenses (1984),
vol. 2, at pp. 63-65; see also United States v. Holmes, 26 f. Cas. 360 (U.S. Pa.,
1842) (No. 15,383). The American Model penal Code proposes that the defence
of necessity would be available for homicide: American Law Institute, Model
Penal Code and Commentaries (1985), at & 3.02, pp. 14-15; see also W.R.
LaFave and A. W. Scott, Substantive Criminal Law (1986), col. 1, at p. 634.

41     Assuming for the sake of analysis only that necessity could provide a de-
fence to homicide, there would have to be a harm that was seriously comparable
in gravity to death (the harm inflicted). In this case, there was no risk of such
harm. The "harm avoided" in the appellant's situation was, compared to death,
completely disproportionate. The harm inflicted in this case was ending a life;
that harm was immeasurably more serious than the pain resulting from Tracy's
operation which Mr. Latimer sought to avoid. 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.

42     We conclude that there was no air of reality to any of the three requirements
for necessity. As noted earlier, if the trial judge concludes that even one of the
requirements had no air of reality, the defence should not be left to the jury.
Here, the trial judge was correct to remove the defence from the jury. In consid-
ering the defence of necessity, we must remain aware of the need to respect the
life, dignity and equality of all the individuals affected by the act in question.
The fact that the victim in this case was disabled rather than able-bodied does
not reflect our conclusion that the three requirements for the defence of necessity
had no air of reality here.

(2) The Removal of the Defence of Necessity After Counsel's Final Addresses

43     Given that the trial judge was correct in removing this defence from the jury,
There remains the argument that the timing of the trial judge's ruling on necessity
Rendered the trial unfair.

44     After the evidence was led and immediately prior to counsel addressing the
jury, defence counsel requested a ruling on the availability of the defence of
necessity. He had prepared two versions of his address to the jury. One raised
necessity; the other did not. The trial judge's ruling would determine which ver-
sion he would use. The trial judge, however, indicated that he had not decided
whether the defence of necessity was available. He requested counsel to proceed
with their closing submissions, telling them that he would rule on necessity after
those submissions. He later ruled that the defence of necessity was not available.

45     The appellant that this approach violated his right to a fair trial, as
guaranteed by s. 7 of the Charter. He states that he did not know the case he had
to meet. He asks, what if he had made submissions on necessity that were later
withdrawn by the trial judge, or abstained from making such submissions only
to discover that the jury was entitled to consider the defence? The result in either
case, he submits, is unfair.

46     In most cases, the trial judge will be able to rule on the availability of a
defence before counsel begin their closing addresses. But that does not mean
that the trial is unfair where the trial judge delays his ruling. In the circum-
stances of this case, we conclude that the fairness of the trial was not affected.

47     The "case to meet" principle is a component of the accused's constitutional
right to make full answer and defence. It means that an accused has the right to
know the case he must meet before answering the Crown's case: R. v. Under-
wood (1997), [1998] 1 S.C.R. 77 (S.C.C.), at para. 6; R. v. Rose, [1998] 3 S.C.R.
262 (S.C.R.), per Cory, Iacobucci and Bastarache JJ., at para. 102. The rationale
behind this principle is that the accused, before embarking on his defence,
should be able to assume that the Crown has called all the evidence it will rely
on to establish guilt. Both Underwood and Rose affirm this principle, but do not
require all ruling by the trial judge to take place prior to counsel addressing the
jury. Underwood and Rose deal with the accused person's right to respond to the
Crown, not a right to reply to the trial judge. (In Underwood, the issue arose in
the context of a judge's ruling, but the concern was that the Crown would lead
additional evidence ---- in that case, the accused's criminal record.) As such,
there is no broad right to have all rulings on the availability of defences take
place prior to closing submissions. The right to respond to the Crown's case is
not equivalent to a right to respond to the trial judge's rulings.
48 In the absence of a constitutional right, we must still consider whether the
procedure employed by a trial judge led to an unfair trial.

49     The Court of Appeal concluded, at p. 205, that "it might have been better" to
rule on the availability of the necessity defence prior to counsel addressing the
jury. The decision should not have been a difficult one, since not one of the
three requirements for necessity had an air of reality to it.

50     Nonetheless, while the trial judge's approach was imperfect, the benchmark
for measuring trial fairness is not perfection. The critical question is whether the
trial judge's approach rendered the appellant's trial unfair. The inquiry is neces-
sarily specific to the facts of the case under consideration; the determination of
whether the timing of a particular ruling rendered a trial unfair must be made on
a case-by-case basis.

51     We are of the view that, on the facts of this case, the timing of the removal
of the necessity defence did not render the appellant's trial unfair. The appellant
relies on Underwood, to argue that he was denied the ability to make an informed
tactical decision. In Underwood, the trial judge deferred a ruling on the admissi-
bility of an accused person's criminal record until after he had begun testifying.
The accused had to decide whether to testify without knowing if his criminal
record would be admissible. He was forced into an untenable position, in which
he had to gamble on a decision without any ability to mitigate the damage if he
lost his gamble.

52     The situation in this appeal differs from Underwood in two ways. First, the
nature of the interest is not comparable: Underwood had to make an uninformed
decision that would see him irrevocably surrender his Charter right not to be
compelled to testify, while the appellant faced only a tactical decision as to how
to present an unlikely defence. The second difference between the cases lies in
the fact that in Underwood, the accused could not anticipate or mitigate a sur-
prise ruling, whereas in this case the appellant could, and did, anticipate and
mitigate the withdrawal of the defence of necessity. In fact, Mr. Latimer's trial
counsel explained to the jury in his closing remarks that the trial judge could
rule that certain issues ---- including the defence of necessity ---- had to be with-
drawn from the jury's consideration.

53     It was hardly a surprise that the trial judge eventually removed the defence
of necessity. The decision did not ambush the appellant, nor should it have
caught him unaware. The trial judge in the first Latimer case had removed the
defence, and the Court of Appeal in Latimer (no.1), supra, at pp. 512 and 520,
unanimously agreed. The ruling was obvious: there was no air of reality to even
one of the three elements for necessity. In discussing his decision to delay
ruling on necessity until after closing addresses, the tenor of the trial judge's
comments makes it apparent that he is highly skeptical that the defence was
available. We are of the view that the surprise here, if any, was minimal, and we
fail to see the prejudice. While it is customary and in most instances preferable
for the trial judge to rule on the availability of a defence prior to closing ad-
dresses to the jury, it cannot be said that the failure to do so here resulted in an
unfair trial.

54     The appellant also argues that the manner in which the trial judge removed
the defence of necessity was unfair. We disagree. If anything, the trial judge's
treatment of the defence of necessity gave it greater credibility than deserved on
the facts. While the trial judge did explain to the jury that the defence of neces-
sity was unavailable, he appeared reluctant to remove the defence. He explained
how "the law" defines necessity, and he was clear that he had no choice; his
ruling was required by "the courts" as "a matter of law". The trial judge's expla-
nation as to why the defence of necessity was not available did not portray the
appellant in an unsympathetic manner, and in fact the trial judge did not even
touch on the requirement of proportionality in removing the defence. Conse-
quently, in the circumstances of this case, it cannot be concluded that the trial
judge seriously undermined the appellant's closing submissions.

55     We similarly reject the appellant's submission that the trial judge "took
sides" or became "an advocate for the Crown", as there is no support in the
record for this suggestion. The trial judge explicitly said that he agreed with the
Crown's argument as to the unavailability of the necessity defence, but that fact
alone does not transform him into an ally of the Crown and it does not constitute
bias, particularly when the Crown's position was correct and no other choice
was open to the trial judge.

56     The assessment of trial fairness is specific to the facts of the particular case.
In another case, a trial judge's removal of a defence ---- might render the trial unfair,
But that is not the case here.

(3) Jury Nullification

57     The term "jury nullification" refers to that rare situation where a jury know-
ingly chooses not to apply the law and acquits a defendant regardless of the
strength of the evidence against him. Jury nullification is an unusual concept
within the criminal law, since it effectively acknowledges that it may occur that
the jury elects in the rarest of cases not to apply the law. The explanation seems
to be that on some occasions, oppression will result either from a harsh law or
from a harsh application of a law.

58     This Court has referred to the jury's power to nullify as "the citizen's ulti-
mate protection against oppressive laws and the oppressive enforcement of the
law" and it has characterized the jury nullification power as a "safety valve" for
exceptional cases: R. v. Morgentaler, [1988] 1 S.C.R. 30 (S.C.C.) ("Morgentaler
(No. 5) (1988)"), at pp. 78-79. At the same time, however, Dickson C.J. warned
that "recognizing this reality [that a jury may nullify] is a far cry from sug-
gesting that counsel may encourage a jury to ignore a law they do not support or
tell a jury that it has a right to do so" (emphasis in original).

59     The appellant effectively makes two arguments, one specific and one gen-
eral. His specific argument is that the trial judge interfered with the jury's ability
to nullify by implying that the jury could offer input on sentencing. His general
argument is that an accused person must have some right to a jury that is more
likely to nullify. We will consider each argument in turn.

60     The appellant submits that his trial was unfair because of what he character-
izes as the trial judge's misleading answer to the jury's inquiry as to whether it
could offer input on sentencing. In the course of its deliberations, the jury sent
the trial judge a note inquiring, in part, whether it could offer any input into
sentencing. The trial judge was clear n reply that the jury was not to concern
itself with the matter of penalty, but should focus solely on the question of guilt.
the trial judge added, "it may be that later on, once you have reached a verdict,
you ---- we will have some discussions about that [penalty]".

61     The appellant argues that the trial judge ought to have clarified his "mislead-
ing" suggestion that the jury could influence the penalty by explicitly telling the
jury of the mandatory minimum sentence of life without parole for 10 years.

62     While the practice varies in other jurisdictions, the rule in Canada is that
guilt is for the jury to determine, while sentencing is left to the trial judge. That
long-standing approach is sensible as a trial judge will obviously have more
knowledge on both the acceptable range of sentences for the particular offence
and the principles of sentencing. The jury's role is to determine on the facts
whether the evidence establishes guilt. There is no reason to depart from the
general rule.

63     It may seem odd that the jury, without knowing the penalty, could be blind
to the consequences of its conclusions, but that fact is both appropriate and de-
sirable when one takes into account the risk that the jury could be influenced ----
whether towards acquitting or convicting ---- on the basis of the sentence. That
logic applies with the same force when the prescribed penalty is a statutory min-
imum. The fact that a convicted person will be subject to a pre-designated mini-
mum sentence should not influence the jury's consideration of the question of
guilt. The appellant suggests that the jury was less likely to nullify because it
was not explicitly told of the mandatory minimum sentence. The question of
whether the jury would have been more likely to acquit if informed of the
mandatory minimum sentence ---- however interesting its speculation may be ----
cannot be the basis for a requirement that the jury be informed of the penalty
consequent on conviction.

64     The argument advanced by the appellant is that the trial judge should have
Ruled on the availability of the necessity defence at the usual time in the trial,
that is before counsel's jury addresses. In addition, the appellant submits, the
trial judge ought to have explicitly told the jury it had no ability to determine
sentence. If that had occurred, the jury would have had more time to dwell on
what the appellant argues are the most ameliorating circumstances of the appel-
ant's actions; this, coupled with the mandatory life sentence, might have led to
jury nullification. At a minimum, it is argued, the jury would have had more
time to think about it. The argument fails.

65     An accused is entitled to a fair trial, including the presumption of innocence,
the duty of the Crown to prove guilt beyond a reasonable doubt, and the ability
to make full answer and defence. The accused is not entitled to a trial that in-
creases the possibility of jury nullification. If the trial of the accused has not
been unfair and no miscarriage of justice has occurred, the accused cannot suc-
ceed on an argument that due to some departure from the norm by the trial
judge, his chances of jury nullification are lessened. This point is treated in fur-
ther detail below.

66     The appellant argues that the jury was misled into believing it could make a
Recommendation on sentence. The trial judge might have confined himself to
Telling the jury not to concern itself with the penalty. But his vague suggestion
("it may be that later on ---- we will have some discussions about that") cannot be
taken to have seriously misled the jury into believing that it would determine the
sentence. In fact, the jury could and did offer its input on sentence by virtue of s.
745.2 of the Criminal Code, which requires a trial judge to ask the jury if it
wishes to recommend more than the 10-year minimum before parole eligibility
for second degree murder. It seems likely that the trial judge had this provision
in mind when he suggested the jury could "have some discussions" about the
sentence. Read in the context of the trial judge's repeated insistence that the jury
focus on the issue of guilt, not penalty, it is clear that his comment about dis-
cussing the sentence later on did not render the trial unfair.

67     We also reject the argument that the trial judge could have corrected any
"misleading" suggestion by informing the jury of the mandatory minimum sen-
tence; to do so might have been an error. (See R. V. McLean, [1933] S.C.R. 688
(S.C.R.), at p. 693; R. v. Cracknell (1931), 56 C.C.C. 190 (Ont. C.A.), at pp. 192
and 194; R.. v. Stevenson (1990), 58 C.C.C. (3d) 464 (Ont. C.A.), at p. 482) The
trial judge's slightly awkward but short response to the jury's inquiry did not
prejudice the appellant.

68     The appellant's second argument is a broad one, that the accused person has
some right to jury nullification. How could ther be any such "right"? As a mat-
ter of logic and principle, the law cannot encourage jury nullification. When it
occurs, it man be appropriate to acknowledge that occurrence. But, to echo the
words of Morgentaler (No. 5) (1988), saying that jury nullification may occur is
distant from deliberately allowing the defence to argue it before a jury or letting
a judge raise the possibility of nullification in his or her instructions to the jury.

69     The appellant concedes as much, but advances some right, on the part of the
Accused person, to a jury whose power to nullify is not undermined. He suggests
The right to a fair trial under s. 7 of the Charter encompasses this entitlement.
The appellant submits that there is a jury power to nullify, and it would be un-
Constitutional to undermine that power.

70     We reject that proposition. The appellant cannot legitimately rely on a broad
right to jury nullification. In this case, the trial die not become unfair simply
because the trial judge undermined the jury's de facto power to nullify. In most
if not all cases, jury nullification will not be a valid factor in analyzing trial
fairness for the accused. Guarding against jury nullification is a desirable and
legitimate exercise for a trial judge; in fact a judge is required to take steps to
ensure that the jury will apply the law properly. See R. v. Shipley (1784), 4
Dougl. 73, 99 E.R. 774 (Eng. K.B.), at p. 824, cited with approval by Dickson
C.J. in Morgentaler (No.5) (1988), at p. 78. Steps taken by a trial judge to guard
against jury nullification should not, on that basis alone, prejudice the accused
person.

71     We conclude that the appellant's conviction must be upheld.


B. Appeal Against Sentence

72     The appellant also seeks a constitutional exemption from the mandatory
Minimum sentence for second degree murder on the basis that such a sentence
amounts to cruel and unusual punishment in the circumstances of this case. This
aspect of Mr. Latimer's appeal centres on the following constitutional questions
stated by Lamer C.J. on September 22, 1999:
        1.     Was the learned trial Justice correct in finding that in this specific
               case, the mandatory minimum sentence prescribed by ss. 235 and
               745(c) of the Criminal Code would be cruel and unusual punishment
               in violation of s. 12 of the Canadian Charter of fights and
               Freedoms?

        2.     If the answer to Question 1 is "yes", can ss. 235 and 745(c) of the
               Criminal Code be justified in this case by s. 1 of the Canadian Char-
               ter of Rights and Freedoms?

        3.     If the answer to Question 2 is "no", did the learned trial Justice err in
               granting a constitutional exemption r