Nov 27, 2014

Facts

Man who killed his 12 year old daughter, Tracy.

Tracy was stricken with a debilitating case of cerebral palsy.She had the mental capacity of a 4-month-old baby, had six seizures per day and suffered tremendous pain that medication could not alleviate. The trial judge removed the defence of necessity. The jury convicted Latimer of second degree murder. Sask. C.A. dismissed the appeal. Latimer appealed to the S.C.C.





Ratio

There was no air of reality to Latimer’s defence of necessity (with its three requirements outlined in Perka) and therefore the jury should not have been left to consider this defence.

Reasoning

Three requirements are:


  1. imminent peril (modified objective test)
    • There was no peril or urgency

  2. no reasonable legal alternative (modified objective test)
    • the Latimers could have continued to struggle on
  3. proportionality: harm inflicted vs. harm escaped
    1. The harm inflicted was greater than the harm escaped