Presenting the Disability Perspective

(5 February 1998) — On 13 January 1998, the Council of Canadians with Disabilities (CCD), Saskatchewan Voice of Persons with Disabilities, People First Canada, Canadian Association for Community Living (CACL), the DisAbled Women's Network Canada (DAWN Canada), and People in Equal Participation (PEP) agreed to apply jointly for leave to intervene in the Latimer case. Both the Crown and Latimer have informed the Saskatchewan Court of Appeal that they wish to appeal. CCD, Saskatchewan Voice and PEP intervened in Latimer's first appearance before the Saskatchewan Court of Appeal.

An application will be made to the Court Challenges Program for funding to assist the community make its case before the court. The Court Challenges Program was established in 1994 to provide financial assistance for important court cases that advocate language and equality rights under Canada's constitution. It provides four categories of funding for equality rights—Case Development Funding, Case Funding, Impact Study Funding and Program Promotion and Access Funding. Case Funding will be sought by the community groups. CCD received Court Challenges Program funding the first time that it intervened in the Latimer case.

Mr. Bob Richards will be the community's legal counsel in this case. Mr. Richards was CCD's legal counsel in its first intervention. Mr. Grant Mitchell, who was legal counsel for PEP, in the first appeal, will also be participating in the Working Group to direct the intervention. A public education working group is also being considered.

The Criminal Appeal Process In Canada

In the Canadian judicial system, an appeal of a court decision can only be set in motion by the parties directly involved in the case. For example, CCD could not have sought an appeal in this case. It was for this reason that it was vitally important that the Crown decided to appeal this case. To date, notices of application of leave to appeal have been filed by both the Crown and by Robert Latimer.

In its application, the Crown presents 4 grounds of appeal. The Crown argues that the trial judge erred in law by:

1. failing to disallow Latimer's claim for a constitutional exemption from the sentence required by law, as per the decision of the Saskatchewan Court of Appeal in R. v. Latimer (1995).

2. by granting the constitutional exemption from the mandatory provisions of Criminal Code Sections 235(1) ["Every one who commits first degree or second degree murder is guilty of an indictable offense and shall be sentenced to imprisonment for life."] and 745(c) ["in respect of a person who has been convicted of second degree murder, that the person be sentenced to imprisonment for life without 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 section 745.4;"] without finding either section violated the Charter.

3. holding that Mr. Latimer should receive a constitutional exemption without first properly considering the effect of the Royal perogative of mercy on the need to grant a constitutional exemption.

4. imposing an illegal sentence contrary to the mandatory provisions of the Criminal Code.

Mr. Latimer's application presents 9 grounds. It contends that the trial judge erred by:

1. failing to leave necessity as an issue for the jury;

2. declining to rule on whether necessity would be left to the jury, prior to counsels' addresses;

3. ruling that in a murder case, a jury cannot be told of the minimum punishment;

4. failing to provide the jurors with correct and comprehensive responses that fully answered their questions;

5. failing to instruct the jury to decide the case on what they felt was just, if they were of the view that following the law would lead to an unjust result;

6. not charging the jury that they could find that Robert Latimer had the legal right to decide to commit suicide for his daughter, by virtue of he and his wife being her surrogate decision makers for all other decisions;

7. imposing a sentence that is greater than is warranted or necessary, considering the facts of the case and the accused's background.

8. Finally, any grounds advised by Counsel.

The Saskatchewan Court of Appeal will consider the merits of the grounds presented in both applications and then decide whether or not to grant an Appeal.

Susan Doerksen Case: Possibly Another Assisted Suicide

On 26 November 1997, police found Susan Doerksen, 78, dead in the garage of her home. Carbon-monoxide poisoning is the likely cause of death. Her husband, Bert, 79, is suspected of having assisted with Mrs. Doerksen's suicide.

The media have reported that Mrs. Doerksen had a number of disabilities—arthritis, a heart problem and a back condition which caused mobility difficulties.

The Globe and Mail quotes Allan Fineblit, the assistant deputy minister of justice for the province of Manitoba as stating that, "Our position is that there is basis to lay charges of assisting suicide under the Criminal Code." Police laid charges on 28 January 1998.

CCD's policy position is that those who kill people with disabilities should be treated the same under the law as those who kill people without disabilities. CCD seeks to ensure that people with disabilities receive the same treatment before and under the law. Section 241 of the Criminal Code states, "Every one who (a) counsels a person to commit suicide, or (b) aids or abets a person to commit suicide, whether suicide ensues or not, is guilty of an indictable offense and liable to imprisonment for a term not exceeding 14 years."

Any time one person's life is taken by another, it is essential that the facts be brought out in a transparent, public process. The public interest demands that the facts of such a case be examined to ensure a greater crime was not committed. The existing Criminal Code provisions allow for a wide range of sentencing possibilities and this is not an issue in this case.