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R. v. Latimer
  
The Supreme Court of Canada has ruled in the much publicized case of Robert Latimer, found guilty of the second degree murder of his 12-year-old daughter who suffered from a severe form of cerebral palsy.³²¹ Although second degree murder is subject to a minimum sentence of 10 years imprisonment, the judge who presided at Latimer's trial considered the punishment to be cruel and unusual in the circumstances of the case and hence contrary to section 12 of the Charter. He therefore granted a constitutional exemption to the minimum 10 year jail term and imposed a one year prison sentence, to be followed by one year of probation. The decision of the trial judge in this respect was overruled by the Saskatchewan Court of Appeal, which imposed the minimum sentence of 10 years, and a further appeal was taken to the Supreme Court of Canada.³²²

As a point of departure, the Supreme Court affirmed that cruel and unusual punishment within the meaning of section 12 of the Charter refers to punishment that is Aso excessive as to outrage standards of decency."³²³ It is only where punishment is grossly disproportionate to what would have been appropriate that the protection under section 12 can be engaged. In determining whether a sentence is grossly disproportionate, a court A...must first consider the gravity of the offence, the personal characteristics of the offender and the particular circumstances of the case in order to determine what range of sentences would have been appropriate to punish, rehabilitate or deter this particular offender or to protect the public from this particular offender.@³²⁴ Beyond these factors, a court must also consider A...the actual effect of the punishment on the individual, the penological goals and sentencing principles upon which the sentence is fashioned, the existence of valid alternatives to the punishment imposed and a comparison of punishments imposed for other crimes in the same jurisdiction.@³²⁵ The Supreme Court also emphasized that the test for determining if a sentence is disproportionately long is stringent and demanding, and that a violation of section 12 will only be found on rare and unique occasions.

In applying these principles to the Latimer case, the Supreme Court first noted that the offence committed was one of extreme gravity: A[S]econd degree murder is an offence accompanied by an extremely high degree of criminal culpability . In this case, therefore, the gravest possible consequences resulted from an act of the most serious and morally blameworthy intentionality. It is against this reality that we must weigh the other contextual factors, including and especially the particular circumstances of the offender and the offence.@³²⁶ The Court found that both aggravating and mitigating circumstances characterized the crime of Mr. Latimer; so much so that their combined impact was greatly diminished when set off against the gravity of the offence.³²⁷

The seriousness of the offence was reflected in the minimum punishment provided for under the Criminal Code.³²⁸ The Court found that a minimum sentence of 10 years imprisonment served an important sentencing principle, namely, that punishment plays a significant denunciatory role with respect to crime: AThe objective of denunciation mandates that a sentence should communicate society's condemnation of that particular offender's conduct. In short, a sentence with a denunciatory element represents a symbolic, collective statement that the offender's conduct should be punished for encroaching on our society's basic code of values as enshrined within our substantive criminal law."³²⁹ The role of denunciation is all the more important, reasoned the Court, when the crime under consideration involved considerable planning and premeditation and resulted in a high degree of coverage by the media. Denunciation of such crimes serves to deter other like-minded individuals, particularly important where the victim is vulnerable because of age, disability or other similar factors.

In light of all these reasons, the Court concluded that the minimum sentence of 10 years imprisonment imposed on Mr. Latimer did not violate his rights under section 12 of the Charter. In so doing, it also pointed out that the royal prerogative of mercy is explicitly preserved by the terms of the Criminal Code. It adopted its reasoning in a previous decision to the effect that A[w]here the courts are unable to provide an appropriate remedy in cases that the executive sees as unjust imprisonment, the executive is permitted to dispense Amercy@, and order the release of the offender. The royal prerogative of mercy is the only potential remedy for persons who have exhausted their rights of appeal and are unable to show that their sentence fails to accord with the Charter.@³³⁰

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End Notes