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R v Latimer, 2001 SCC 1 (Link)


Latimer was convicted of 2nd degree murder. He had euthanised his daughter, who was disabled (cerebral palsy).

The mandatory minimum sentence is life. The judge may set parole from 10 to 25 years; the jury gave 1 year; court upheld with 1 year probation.


A. Is the minimum mandatory sentence of 2nd degree murder grossly disproportionate in these circumstances?

B. Should the jury have been entitled to consider the defence of necessity?


A. S.12 Analysis
** 1. Proportionality of sentence in relation to level of wrongdoing to the accused
*** a. Assessing consequences of offenders actions
*** b. Assessing context of offenders act
**** i. Context of offence (factual scenarios)
**** ii. Aggravating factors
**** iii. Mitigating factors
** 2. Consider purposes (principles) of sentencing
** When assessing the gravity of an offence you must look at the character of the offender and the consequences of the actions. If after taking into account aggravating and mitigating factors the sentence is not grossly disproportionate, then the sentence will not infringe on s.12 rights.

B. Three requirements for the defence of necessity:
** 1. It must be an urgent situation of clear an imminent peril or danger
*** Disaster 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 virtually certain to occur.
**** This is a modified objective standard
** 2. There must be no reasonable legal alternative to disobeying/breaking the law
*** If there was a reasonable legal alternative to breaking the law, then there is no necessity.
**** This is a modified objective standard
** 3. There must be proportionality between the harm inflicted and the harm avoided
*** Where this can be quickly 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.
**** This is evaluated on an objective standard


A. The object of denunciation mandates that a sentence should communicate society’s condemnation of that particular offender’s conduct.
** Denunciation becomes more important where there is a high degree of planning and premeditation and where the offence and the consequences are highly publicized (R. v. Mulvahill)

B. A defence should only be left to the jury is there is an air of reality to the defence
** Whether there is sufficient evidence that, if believed, would allow a reasonable jury, properly charged and acting judicially, to conclude that the defence applies and acquit the accused.
** For the defence of necessity to succeed, the judge must be satisfied that there is evidence sufficient to give an air of reality to each of the 3 requirements


A. The statutory minimum sentence of life for 2nd degree murder is not in violation of s.12 in this case.

B. There was no air of reality to the defence.


Regarding B: The defence must be strictly controlled and limited – it is of limited application – and it is rarely available.

Section 12 of the Charter of Rights and Freedoms states: "Everyone has the right not to be subjected to any cruel and unusual treatment or punishment."


  1. Zachary Leheniuk 32


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