Surrogate Suicide: An Oxymoron

(14 April 2000) — On 31 March 2000, the Attorney General for the Province of Saskatchewan submitted its factum to the Supreme Court of Canada in the case of Her Majesty the Queen v. Robert William Latimer. In its factum the Crown addresses the facts of the case, points of law that are at issue in the appeal, the arguments being put forward in the case and the order that is being requested from the Supreme Court of Canada.

The three points of issue that are of greatest concern to the community of persons with disabilities are: issue #2: Did the trial judge err in failing to leave the defence of necessity with the jury? issue # 4: Did the learned trial judge err in law in not charging the jury that it was not murder if Robert Latimer decided to commit suicide for his daughter, by virtue of he and his wife being her surrogate decision makers for all other decisions and issue #5: Does the Charter allow for a constitutional exemption in mandatory minimum sentencing and if so, should a constitutional exemption have been granted in Mr. Latimer's circumstances?

Issue #2 Defence of Necessity

On this matter, the Crown states, "Furthermore, as a matter of principle, the quality of life of a person who is killed must be irrelevant to the issue of culpability for murder. Otherwise it would inevitably lead to an inequality in the protection provided by the law for the elderly, the disabled and the ill as compared to that provided for the young, the able-bodied and the healthy. It would dangerously ignore the reality that only the individual is in a position to assess his or her quality of life. The condition of the victim, coupled with the motive of the accused would permit the defence of necessity. It would create a new category of non-culpable homicide: "compassionate homicide" or "mercy killing'"".

The Crown continues, "If the definition of necessity is available because of the perception of parents or care-givers that their children have no quality of life, then the issue of the rights of the disabled is engaged. Thus, the right to life, liberty and security of the person pursuant to s.7 of the Charter, currently afforded the elderly, the disabled and the ill would be traversed by a pronouncement that the defence is available in a case such as this. As well, the s.15 Charter right to equal protection and benefit of the law would be infringed for disabled and vulnerable persons. In Andrews v. the Law Society for British Columbia this honourable Court's description of the purpose of s.15 of the Charter has particular application to this case; 'It is clear that the purpose of s.15 is to ensure equality in the formulation and application of the law. The promotion of equality entails the promotion of a society in which all are secure in the knowledge that they are recognized at law as human beings equally deserving of concern, respect and consideration.'"

Issue # 4 Surrogate Suicide

In its facturm, the Crown identifies the dangers inherent in a concept like surrogate suicide. It states, "The Appellant's submission that a parent or guardian of an incompetent person should have the right to choose death for that person as a surrogate decision maker is a dangerous proposition. It would place all parents, guardians and care-givers of disabled and disadvantaged persons in the position of having the legal authority to choose death for their charges. Presumably, that choice would be valid if the care-giver acted with a compassionate motive on the belief that it was the best choice."

The Crown then dismantles the concept of surrogate suicide. "The appellant's argument is nonsensical because suicide is intentionally killing oneself. The Appellant bases his argument, in part, on the misinterpretation that the common law requirement of "malice aforethought" for murder was the equivalent to evil motive or animus. Thus, if there is no animus toward the victim, murder is transformed into ''surrogate suicide." But "malice aforethought" did not mean evil motive but simply intent to kill."

"As was stated elsewhere in this Factum, courts have consistently held that parents cannot, and do not, have the right to determine that their child should die because they believe it to be a desirable alternative."

"As well, this Honourable Court in Rodgriguez has held that the sanctity of life historically excluded freedom of choice in the self-infliction of death and gives the state the right to regulate the involvement of others in exercising a power over other individuals ending their lives."

"It is respectfully submitted that the Appellant's term, "surrogate suicide", is nothing more than an euphemism for those other euphemisms, euthanasia, mercy killing or compassionate homicide, as well as being an oxymoron."

Issue # 5 Availability of Constitutional Exemption

The Crown presents the following arguments against a constitutional exemption in this case: "...[E]mploying a constitutional exemption as an individual remedy under section 24(1) is inappropriate, especially where as here the relevant legislation is cast in mandatory language. First, such a remedy erodes a fundamental objective which animates the rule of law, namely "[t]here is, in short, one law for all." to exempt certain individuals from valid legislation applicable to all other Canadians undermines this basic premise."

"...[E]mploying a constitutional exemption as an individual remedy under section 24(1) of the Charter injects judicial discretion into a law for which the legislature manifestly did not intend it. This would substantially revise a law in a manner contrary to the express intention of the legislature."

"Third, and most specifically, a constitutional exemption is inapplicable when a minimum definite sentencing provision is attacked on the basis of section 12 of the Charter. The two-stage inquiry for assessing whether a legislatively mandated penalty contravenes section 12...demonstrates that if such a penalty results in gross disproportionality, it is overbroad and should be declared of no force and effect. There is no scope for a particular individual otherwise to be exempted from its mandatory requirements."

Requested Order

The Crown requests that the Supreme Court of Canada dismiss the appeal from sentence and conviction, which would mean that Latimer would serve the mandatory sentence for second degree murder.