From the Globe and Mail Thursday, January 3rd, 2002

Latimer has suffered enough, Ms. McLellan
By A. Alan Borovoy, General Counsel, CCLA

This month, Saskatchewan farmer Robert Latimer will observe the first anniversary of his jail sentence for ending the life of his severely disabled 12-year-old daughter, Tracy. Having been convicted of second-degree murder, Latimer is serving the required minimum sentence - life with no chance of parole for ten years. Yet the trial judge, Mr. Justice Ted Noble, had found as a fact that Mr. Latimer's motive was to relieve what he saw as his daughter's terrible and unremitting pain (she had a severe form of cerebral palsy). Moreover, a recent nationwide poll found that support for clemency was more than 70 per cent, and more than 60,000 Canadians have signed a petition from the Canadian Civil Liberties Association (CCLA) urging both a substantially reduced penalty for Mr. Latimer and the repeal of all mandatory minimum sentences.

Despite all this, the federal government appears remarkably unmoved. Neither Justice Minister Anne McLellan nor Solicitor General Lawrence MacAulay would consent to meetings in order to discuss the subject. Saskatchewan's respected former premier Allan Blakeney has been trying since early 2001 to arrange such a meeting for the CCLA, of which he is the current president.

Mr. MacAulay maintained that, since he must advise cabinet regarding clemency applications, "it would be inappropriate" for him to meet with anyone "advocating a particular outcome in this case." Mr. Blakeney countered that, precisely because of this role, the Solicitor General should welcome all the advice he can get.

Besides, some years earlier, a Liberal justice minister and solicitor-general met with CCLA to discuss clemency in another murder case. Has government policy regarding such meetings changed, Mr. Blakeney asked, and, if so, why? Mr. MacAulay never responded to these questions.

As for Ms. McLellan, Mr. Blakeney asked her for a meeting to discuss the law concerning mandatory minimum jail penalties. Although this was clearly within her jurisdiction, she never even replied to letters he sent as long ago as June 7 and July 26. And, upon being informed of the CCLA petition, Ms. McLellan is reported by the press to have "summarily" cut off all questions on this subject.

Mr. Latimer, meanwhile, continues to languish in jail. Yet, the official adjudicators who had heard all the evidence were in favour of mercy.

Judge Noble described the homicide as "compassionate" and the jurors were visibly upset when they learned about the harsh minimum sentence. Responding to the jury's recommendation, the Judge Noble granted Mr. Latimer a constitutional exemption from the mandatory minimum sentence. He imposed a two-year sentence; one year in jail and one year under house arrest.

The Saskatchewan Court of Appeal and the Supreme Court of Canada altered the penalty, holding that, as a matter of law, the mandatory minimum had to be observed. But the Supreme Court noted that the federal cabinet could, if it wished, grant executive clemency.

In support of clemency, the CCLA argued that the issue is not the acceptance of such homicides; it's the reduction of such penalties. We don't have to permit mercy killings, said the CCLA, in order to oppose the magnitude of this sentence. In response, some commentators have contended that, unless Mr. Latimer serves the full sentence, people with disabilities are "not going to sleep very well".

But, even if Mr. Latimer's sentence were reduced, anyone contemplating a similar misdeed would be faced with the kind of legal ordeal that Mr. Latimer has suffered - by now, some 6 hearings and, in total, many months in jail. Not a very inviting predicament.

Moreover, during the 1990s, there were at least four cases of Canadian courts accepting guilty pleas to something less than murder where the lives of very ill patients were deliberately extinguished to relieve their unendurable pain. Spared the requirement of a minimum sentence, the courts decided against any imprisonment. Despite this leniency, Canada has hardly become engulfed in such killings. Thus, clemency for Mr. Latimer need not trigger insomnia for anyone.

Despite Ms. McLellan's peremptory dismissal of questions about mandatory minimums, experience demands reconsideration of the issue. In a survey of judges conducted by the Canadian Sentencing Commission, 91 per cent said minimum penalties restricted their ability, at least sometimes, to give a just sentence; 95 per cent said such provisions contribute, at least sometimes, to inappropriate plea bargains. In summary, the Commission noted that those "Canadian commissions that have addressed the role of mandatory minimum penalties have recommended that they be abolished." Yet the Justice Minister did not think the subject was even worth discussing.