R v Latimer

The court first held that not only was the defence of necessity unable to justify Latimer's actions but also the inapplicability of the defence should have been so obvious that his lawyers should have anticipated its rejection, and therefore the fact that judge rejected it only after the defence was argued was not unfair. The court first cited precedent that the defence of necessity is invoked only where "true 'involuntariness' is present". This involves being confronted with a serious danger, no other options but to commit a crime to avoid that danger, and "proportionality between the harm inflicted and the harm avoided." While the court acknowledged that the individual's subjective views in measuring approaching dangers and other options could be taken into account, along with an objective assessment (this was called a "modified objective test"), in this case the defence of necessity failed. First, the claimed danger being avoided, the surgery, threatened not Mr. Latimer but his daughter. Moreover, the court wrote that "ongoing pain did not constitute an emergency in this case". The court believed Mr. Latimer should have been able to understand this, especially since there were alternatives to surgery, such as the feeding tube. The court went on to find that Latimer had other alternatives to killing his daughter, namely that "he could have struggled on", albeit "with what was unquestionably a difficult situation".

The court also ruled that subjective views could not influence an assessment whether the crime is worse, equal or lesser than the threatened danger to the criminal, since "fundamental principles of the criminal law" would be sacrificed. In this case, the rights of the disabled, based in section 15 of the Charter, were considered to be the important factor in considering how serious the crime was. The court had difficulties in deciding whether any type of emergency could justify homicide, and at any rate found Tracy's death was worse than the pain Tracy might have felt during life.

The court went on to reject the argument that the trial was unfair because the chances of jury nullification were impaired by the judge. As the court argued, there is no right to a trial in which one's chances of jury nullification are not impaired. Indeed, the justice system is not supposed to advocate jury nullification. Moreover, the judge's apparent suggestion that the jury might have some influence in determining the sentence was not considered misleading or unfair because, while juries cannot decide sentences, they can indeed make recommendations.

Finally, the court rejected the argument that the minimum ten-year sentence might be so long as to be cruel and unusual and thus unconstitutional under section 12 of the Charter. Since a section 12 test demands consideration of the seriousness of the crime, the court pointed out that the crime led to the "most serious of all possible consequences, namely, the death of the victim, Tracy Latimer". Consideration of the mens rea of the offence therefore guided the court to argue that even though Latimer had been convicted of second as opposed to first-degree murder, "second degree murder is an offence accompanied by an extremely high degree of criminal culpability".

At this point, the court, in balancing other factors in the case, namely how Mr. Latimer had planned his crime and did not regret it, and conversely, how he was distressed over Tracy's condition and was otherwise respected, did not find that any of the positive factors outweighed the crime. Moreover, the punishment was also considered by the court to be valid because it might discourage others from taking similar actions.