TRU/Law3020/GroupO

Group O: R v Latimer

Hilary Pritchard

James Rees

Kevin Roberston

= Team Awesome =

Hilary Pritchard James Rees Kevin Roberston

= Purpose of this wiki =

This wiki was created to take the Latimer case and reinterpret it through the minds of prominent legal philosophers. It was a collaborative effort between a group of law students at Thompson Rivers University.

= Note on Links =

After most discussions there is a link that can be selected ("Check it out!") which will take you to a picture that relates to the content. Due to not having the copyright for the images (and them not being in the creative commons) we were unable to post them directly in this wiki. Although this may be an extra step, we hope you enjoy them as much as our group enjoyed debating which picture would represent each discussion.

= The Case = R. v. Latimer

Facts:

Robert Latimer was convicted of second-degree murder in the killing of his daughter, Tracy Latimer. At the time of her death, Tracy was a 12 year old girl who suffered from a severe form of cerebral palsy and as a result of her disorder, was permanently quadriplegic and confined to a wheelchair. Tracy had the mental capacity of a four-month old baby. She suffered several seizures each day and it was thought that her disorder caused her extreme pain. However, her condition was manageable and was not life-threatening. Tracy underwent numerous surgeries in her lifetime and near the end of her life, her doctors wanted to perform additional surgery that was thought to alleviate pain of a dislocated hip. To her parents, Robert and Laura, the surgery was only further mutilation of their daughter, a child who had seen too much pain in one lifetime. On October 24th, 1993, twelve days after learning about the upcoming surgery, Mr. Latimer decided to take Tracy's life into his own hands. While his wife and other children were away from the home, Robert placed Tracy in his truck and connected a hose to his exhaust pipe and into the cab. He started the engine and allowed the carbon monoxide to end his daughter's life.

Robert Latimer first maintained that his daughter had passed away in her sleep, but he eventually confessed to killing her. He was charged with first-degree murder and at trial, was convicted of second-degree murder by a jury. He was sentenced to life in prison, with a minimum sentence of 10 years before parole eligibility. The Saskatchewan Court of Appeal upheld the conviction and sentence. Latimer appealed to the Supreme Court of Canada and a new trial was ordered. Once again, his conviction and sentence were upheld, but Latimer appealed, for a second time, to the Supreme Court of Canada.

Issue:

Should the jury have been allowed to consider the defence of necessity?

Held:

Appeals against the conviction and sentence should be dismissed.

Analysis:

The Court examined the three elements of the defence of necessity, as developed in Perka v. The Queen [1984]:
 * Requirement of imminent peril or danger: the situation must be one where danger is clear and imminent; there must be a sense of peril that is likely to transpire.


 * Accused must have had no reasonable legal alternative:;if another reasonable course of action was available to the accused, then the defence of necessity will not stand. If the Court can say that there was a realistic way out for the offender, then the defence fails.


 * There must be proportionality between the harm inflicted and the harm avoided. There must be comparable seriousness to the harm avoided and the harm applied.

In order for a defence of necessity to succeed, it must be proved that the accused's act was completely involuntary. For the first two elements, the Court explained that a modified objective test is appropriate, which takes into account the situation and characteristics of the particular accused person. While an accused's perceptions of surrounding facts are highly relevant in determining whether conduct should be excused, those perceptions remain relevant only so far as they are reasonable. In this way, the person cannot just believe it was necessary, the surrounding circumstances must indicate that the act was a necessary one. The proportionality requirement must be strictly analyzed through an objective lens. Anything but an objective test would undermine the principles of our justice system. It is important to examine the nature of the act in an effort to weigh competing social values. Furthermore, "evaluating the gravity of the act is a matter of community standards infused with constitutional considerations. (para 34 of SCC judgment)."

The Court applied the requirements for the defence of necessity to the case. The question did not center around Robert Latimer's acquittal, but focused on whether the defence should have been left for the jury to consider. If the accused can give an "air of reality" to the defence through the evidence, then it will be put to the jury for their consideration (para 35 of SCC judgment). The Court concluded that there was no air of reality for any of the three requirements for the defence of necessity. Robert Latimer argued that he himself was not in any kind of imminent danger, but rather, his daughter's upcoming surgery was an imminent threat to her life. The Court determined that even though Tracy was suffering from severe pain and that the surgery might only have increased it, she was not in immediate danger. In response the the second requirement, the Court concluded that Latimer did have a reasonable legal alternative: he could have allowed his daughter to live. The Court recognized the extreme difficulty and tragedy of his case, but nevertheless found that he could have helped to minimize Tracy's pain and let her live. Latimer and his wife could also have received help from the group home that Tracy had previously attended. Finally, in response to the third requirement, the Court ruled that Latimer's act of homicide was grossly disproportionate to the alternative of allowing his daughter to continue on in the condition she was in. Tracy was not in a life-threatening position, therefore her father's actions were not at all proportionate.

In conclusion, the three elements of the defence of necessity had no air of reality to them. Therefore, the jury was not entitled to consider the defence of necessity. Appeal dismissed.

The full case can be reviewed at: "Latimer"

= Analysis =

= Natural Law - Aquinas =

The natural law could be interpreted as God having put the girl in the state she was in. It was meant to be as it was and should not have been interfered with by taking her life. Human's are inclined to act towards the common good, as such this common good aligns with the natural law that we should not murder. In this way, the preservation and sanctity of life is the over powering common good that we must strive towards and punish deviation from. Aquinas believes that all genuine laws have the goal of a common good. Although there may be some unjust notions in holding Latimer responsible, it is in the overarching interest of the common good to prosecute him. In other words, the greater good is served by the judgment as it is.

If the result of the case was any different, it would open the door which could unravel society by setting a precedent that would excuse murder in situations that do not fit the established law of the land. It would also open the door to abuse and murder of (especially severely) disabled people who have no say in the matter; they could be euthanized without any input on their part. In an effort to prevent this abuse the defence of necessity (which supports the common good) has carefully outlined requirements which aid in keeping the exception narrow. Allowing the defence of necessity in only very limited amounts works toward the common good by preventing the needless punishment of those that acted in effect "for the common good". In this way, a person that does an act out of necessity is performing the will of the people at that specific moment in time due to there being no other viable options.

Latimer would approach the case first from the eternal law (the overriding law, God created this, assumed to be benevolent and good, therefore his law is unquestionable). Then he would approach it from the natural law (aimed at the common good), which would help us recognize what is inherently evil and should not be done. The result is that our actions are moved towards the common good of society. In this way, the law would have an inherently moral component that would serve to represent the common good, which is in opposition to the views held by Austin where a moral component is not a necessary element of natural law. Latimer would see the necessity requirements as created in the common law (by judges) and therefore inferior to legislation-made law. The reasoning behind this is that judges do not have the wisdom of legislators and are more likely to err. Therefore the legislators would possibly have wanted to lessen these requirements in the interest of the common good.

However, when looking at the development of our society, Aquinas may see the Supreme Court Judges (who created the test for the defense) as being instilled with greater virtue, and representative of the highest level of lawmaker of the common-law in Canada. This would be due to the fact that although they represent the judicial branch (which he considers do not make valid laws), they do represent those with the greatest virtue (or reasoning) who attained their position via experience and over time showed this exceptional reasoning ability. This may justify the defence as a valid law.

On the other hand, humans can err in the law. The law of murder being a crime may have been erroneously developed and defined when it leads to a scenrario such as the one that Latimer finds himself in. If a father trying to ease his daughter's suffering by ending a life that may not be worth living is murder, then there could be something seriously wrong with our legal conception of murder. Someone that can't take care of themselves wouldn't survive on their own, so killing them could be a fulfilling of natural law. The person cannot engage in self-preservation or exercise spiritual and intellectual capabilities, so allowing them to continue living such an empty life would not be leading to the common good.

Regarding the letter of the law, the requirements for necessity were not met. They failed on all 3 parts. However, the spirit of necessity would best be met in Latimer's case by relaxing the strict requirements that have been demanded. Therefore, deviation from the letter of the law may be allowed in some contexts, such as this one.

Animal interpretation of Aquinas:

Check it out! - Natural Law: The Way of the Elk

Check it out! - Natural Law: the confusion of the Elk Animal interpretation of Latimer: Check it out! = Legal Positivism- Austin =

According to the legal positivist, law is a social fact, empirically provable. The legal positivist rejects teleology embraced by the natural law theorist: immoral or unjust laws can be just as valid as any other law. Similarly though, both the natural lawyer and the positivist believe that all human beings have a moral obligation to obey the law. However, for the positivists like Austin, Bentham, and Hart, laws themselves are completely distinct from morality.

In analyzing R. v. Latimer through a positivist’s lens, it is undeniable that a theorist such as Austin would strongly uphold the law of second degree murder: It is a command made by the sovereign, backed by sanctions, and all human beings have a duty to comply with it. Furthermore, it appears as though this is a clear case where the positive morality and positive law coincide which is generally desirable for Austin and legal positivists. Although there is no need for the law of second degree murder to be moral, it inherently is as it discourages members of society from completing an act which we find immoral, and imposes upon them sanctions for one of the worst crimes one could commit.

As previously mentioned Austin would most likely recognize the law around second degree murder as valid and uphold the conviction of Latimer. He committed an act that violated the law, which he was well aware of and the sanctions imposed upon him were directly connected to the command not to commit murder. Austin would most likely not care for Latimer’s unique situation and that of his daughter Tracy, and would view his conviction as a very cut and dry case. Latimer killed, violated the valid positive law imposed upon him by the sovereign and is therefore subject to the sanctions imposed by the government. Latimer violated his moral obligation to obey the law, which Austin believes each person in society has the obligation not to do.

In comparing it briefly to a natural law theorist’s view, Austin would not place emphasis on the fact that the law is geared towards the common good. He would emphasize the fact that the law is a command from the sovereign not to commit murder. Although prohibiting murder is aimed at encouraging a common good for society (i.e. preventing people from killing each other), he would be more concerned with whether it was a valid law coming from the sovereign. Although he would recognize and appreciate that there is a moral value to prohibiting murder, he would not require this to be present when determining whether or not the law is valid. But, how would Austin view the common law defence of necessity?

In Canadian society, there exists a “positive morality” concerning people who, in extreme circumstances, kill out of necessity. Robert Lamiter argued that he could no longer watch his daughter suffer and that keeping her alive was causing her severe pain. He believed that he had no other choice but to end her life. A legal positivist like Austin might allow this defence to stand, provided that it was no overruled by Parliament (arguably, the Sovereign).

There is also the possibility that a positivist would view the defence of necessity as not true positivism, but more of a tacit command. The defence of necessity is not positive law and thus no law at all, but judge-made common law. In this sense, Austin would appreciate that the Supreme Court judges had recognized and affirmed the defense of necessity as a common law defense which may be applied. Austin would not be concerned with whether the judges are lawmakers instilled with higher virtue and thus could dictate such a defense to society due to their being natural appointed as a natural law theorist might query. He would be more focused on the fact that the judges are legitimately appointed by the sovereign, and that the sovereign is allowing the defense to stand by not explicitly rejecting it. The tacit command that the defense of necessity allows a person to kill when they have no other option would be fine and should be applied throughout Canada, so long as Parliament does not reject it outright.

Austin would appreciate the strict application of the defense of necessity, as it only absolves a person from liability in a limited set of circumstances, and in the end it does not totally undermine the positive law set out by the sovereign not to commit murder. The strict set of rules associated with proving a defense of necessity do not undermine the positive law against murder, but seek to uphold it by making it very difficult for an accused to prove the defense. Ultimately, it is part of the positive morality of our society to allow a person who is not morally culpable for committing a murder to be absolved of the crime so long as the sovereign accepts this.

In relation to a natural law theorist, Austin would believe that it does not matter that Latimer should be punished for violating a law which goes against the common good. Furthermore, he would not be concerned with the teleological end of the law to promote the common good, as for him it is a command from the sovereign not to commit murder which is all that is necessary in order for it to be a valid law. With regards to the judicially developed defence of necessity, Austin would not be concerned with whether the judges were instilled with more virtue and thus are able to create and implement these judicial rules. For him it would all come down to whether or not the sovereign accepted the defence of necessity and did not explicitly reject it.

Bentham

Bentham would not be concerned with the morality of the law on second degree murder but whether or not this law maximizes utility. He would most likely say that the law does maximize utility as it prevents people from killing each other which would undermine the utility of society. Although similar to the common good, the focus is not on morality but rather what will provide the greatest amount of happiness to the greatest number of people. The law against second degree murder would most likely provide more happiness to more people, as it prohibits an act which causes pain and suffering amongst both the victims and those associated with them in society. In the case of Latimer, Bentham may recognize that his decision to kill Tracy was to promote his personal happiness, but would most likely uphold his conviction as it would go against the law, and many in society would not be made happier by his act. Furthermore, Bentham would recognize that the defence of necessity is something of a utilitarian law, as society is usually upset when a person is convicted for committing a crime they are not morally culpable for. It provides greater utility to excuse those who were forced to kill or act in the heat of the moment rather than punish them strictly because they violated a command of the sovereign. Bentham would likely agree however, that Latimer did not meet the requirements of the defence of necessity.

Raz

It seems clear that according to Raz's service conception that the law prohibiting second degree murder is aimed at serving society in general by prohibiting a crime which would otherwise do more harm than good in society. Furthermore, it encourages members of society to act better, rather than simply killing each other. As for the defence of necessity, Raz would again see this as a valid law as it looks to serve society by providing a defence for those who kill someone only when they have been forced too. Raz would most likely uphold Latimer's conviction, as he would say that Latimer violated the laws which aim to serve society.

Animal interpretation of Austin: [http://us.123rf.com/400wm/400/400/cynoclub/cynoclub0906/cynoclub090600027/5058820-portrait-of-a-very-angry-purebred-belgian-shepherd-malinois.jpg Check it out! ]

= Legal Positivism- Hart =

Given that law does not supplant morality, there could be an argument made that in these particular circumstances murder having the punishment it entailed was too evil of a consequence – so, not that the law against murder is evil in and of itself, but that in this specific case its strict application would have evil consequences. The obligation to follow the moral rule of alleviating the excruciating suffering of a loved one may have outweighed the competing legal obligation against “murder” (if Latimer's actions can even be described as such). While the Court did somewhat touch on this conflict, they ultimately decided that the current legal law as it is strictly construed trumps the moral law which Latimer was following.

However, there is also an opposite argument to be made on the rule of recognition. The rule against murder must be obeyed and accepted by society as authoritative – not because of punishment, but for whatever other reasonable reason (either just because we are habituated to it, or because there is a self-interest for everyone in society to do so). In principle, for the legal system to function properly, this law (and all others) must be recognized by the population as authoritative. We “ought” to follow the law of murder, and therefore Latimer's actions must be punished in accordance with the law of the land. The positivist rule of command is too simplistic to apply well to this situation – the commander and the ruled participate together to make rules work, rather than it being a one-way flow of power (a “command”) onto the passive population. We must agree with and propound the idea that murder is wrong in all circumstances. Rules must be activated by the ruled.

What the judges did in determining the appropriateness of putting the defence of necessity to the jury is quite consistent with Hart's penumbra theory. There is a settled core of meaning, a general type of situation that occurs, to which the law is meant to apply – the defence of necessity can fall under this umbrella. There are certain circumstances that are required for the defence to be applicable, certain requirements, that were just not met by the facts of the case. They did not fit into the settled core of meaning. However, it is rather inarguable that the facts of this case were rather exceptional; this was not a typical “murder” - rather than commited out of malice or ill intention, it was committed out of an attempt (whether misguided or not) to lessen a family member's suffering in this world. Thus, this is a clear case of a penumbra (a hard case) that must be re-assessed in whether it fits in the settled core of meaning. The judges are then meant to take the rule-governed practice into account (the legal system itself, rather than subjective morality). The aim is to use legal principles such as justice rather than arbitrary discretion. It can then be argued that this is where the judges faltered in not allowing the defence of necessity to be presented before the jury. Is it truly “just” that Latimer is not given even an opportunity to argue a possibly relevant defence?

That there was absolutely no air of reality to the defence seems quite unreasonable. It could be argued that there was imminent peril or danger in the sense that his daughter's continued suffering held in it “peril” or “danger” every second of the day – every moment she stayed alive her pain was constantly re-occurring. There should not have to be a distinct, huge event to qualify for this requirement. Even if the requirement were framed in this way, it could be argued that objectively many if not most parents would see the impending surgery as as a serious form of mutilation that consituted a peril or danger to their child. As far as a reasonable legal alternative is concerned, it could probably always be convincingly argued that there was some form of alternative that could have been taken other than violence or murder. You could always attempt to escape or avoid committing a violent act. Thus, this is a rather stringent requirement and an almost impossible threshold to meet. Finally, it could definitely be argued that there the harm inflicted was proportionate to the harm avoided. While her life did end, it was ended in a rather gentle manner and thus ended the horrible ongoing suffering she would have continued to go through every day of her life. At the very least, this is of a comparable gravity. Overall, the judicial reasoning in this case seemed to have an element of arbitrariness that is quite problematic to the terms of the rule-governed practice. Their reasoning could have been quite different, and definitely more sympathetic to Latimer. Similarly to the legal realists, judges need to decide penumbral cases such as this one in accordance with the needs of society. It seems that it may not be in society's best interest to punish Latimer severely for his actions in this particular case; at the very least, he should be allowed to use the defence of necessity to defend himself from the charge of murder.

On the other hand it could be argued that judges accurately recognized that an immoral and illegal act occurred (an instance of the two aligning, which is not necessary but beneficial), and that both they and society believe (based on the terms of the rule-governed practice, rather than on personal, irrational discretionary reasons) that such actions cannot be excused. They drew on the legal system itself, and the values behind it in coming to this conclusion (such as that killing of another is wrong in any circumstance where it was not completely necessary). This is contrary to Holmes and legal realists, who would say that good judges would draw from social policy while bad judges would just take what they believe is moral and right and would judge him according to that view.

Hart would also say that we do not need to get the rules form the sovereign. This is contrary to Austin who would say that judges can make this rule (unless otherwise told by the sovereign that they couldn't). The result is that Austin recognizes that the sovereign is the be all and end all and that judges can only get their power from the sovereign to make rules. Hart is more understanding of the separation between the judicial and the legislative. Also, Hart would recognize that judges need the leeway to make decisions that fall inside of the penumbra and it is only by allowing this leeway that society can apply the terms of the rule governed practice to specific circumstances. Thus, it could be argued that the judges in this case used the terms of the rule-governed practice to the best of their ability, drawing on the system itself, in coming to the conclusion that the defence of necessity did not apply.

Animal interpretation of Hart: [http://3.bp.blogspot.com/_yK9xFkaovIY/TKsEHs_5LMI/AAAAAAAAAcs/jwSSoYuQ3pM/s1600/peacock_tattoo.jpg Check it out! ] = The Morality of Law- Fuller =

Lon Fuller rejected many of Hart's ideas concerning legal philosophy. For example, Fuller argued that the separation thesis does not assist a person that is attempting to grapple with a law that they believe to be immoral. The Separation Thesis is inadequate because it denies law's innate morality. In our case, the father believes that the law against murder is immoral in his particular circumstances. However, he also believes that the law is moral in most other situations.

Fuller would believe that by letting the father off for the murder it would create a rule that is not easily understandable. By letting this person off for the murder it creates a large ambiguity in the legal system around murder and what can be excused. As well, by not enforcing the law governing murder there would be a disjunction between rules and how it was administered. Lastly, by not finding the father guilty the judge would be in effect creating a retroactive law. By doing so, Fuller would believe that the ruling would be a failure of the legal system.

Fuller believes that morality stems from society. Law is composed of internal and external morality and its ultimate goal is to produce good order. When analyzing the Latimer case from a moral standpoint, it is easy to see the complexity of issues at play. The case has ignited passionate debates centering on the rights of disabled persons and the principles of fundamental justice that structure Canadian society. The large amount of media attention this case received is a clear demonstration of how members of Canadian society are grappling with Robert Latimer’s decision to take the life of his daughter. There are people who believe that Tracy’s death was a mercy killing and Robert’s actions truly exhibit his love and compassion for his daughter and family. Conversely, there are other people who focus on the precious nature of human dignity and argue that Tracy’s rights were taken away prematurely; she had no decision in the matter. This is unlike the debate concerning doctor assisted-suicide, where the person making the decision is choosing to end his life with dignity and on their terms. Tracy was unable to communicate and express her wishes therefore, her father made the decision for her. The case is still discussed heavily today, but we are no closer to finding the answer to our inquisition into the morality of Robert Latimer’s offence.

The controversy surrounding this case does not center on the morality of the second-degree murder charge. Rather, the debate is concerned with the application of the defence of necessity. The Supreme Court of Canada ruled that Robert could not claim necessity as a basis for killing his daughter. The facts of the case failed all three requirements of the defence. According to Fuller, the role of judges is to interpret law in order to give it meaning. Judges and all members of the legal profession must work together, in a collaborative effort, to make law “what it ought to be.” Moreover, since judges are required to explain and justify their decisions, Fuller argues that this prompts them to strive toward morality and goodness. It is likely that Fuller would support the judges' decision in R. v. Latimer; they interpreted the law concerning the defence of necessity, balanced the competing purposes, and applied the law to the facts of the case. The judges were reconciling the intrinsic morality of the law with the external morality embedded in society. As a result, the judges interpreted and applied the defence of necessity in a very strict manner, so as to narrow the scope and limit the applicable situations. This gives the law rationality and consistency. If the Court had ruled differently and applied the defence loosely, Fuller might argue that the law would lose part of its internal morality; the law would become less coherent, concise, and understandable, which would impair our justice system.

The fact that a defence of necessity even exists demonstrates the direct connection between morality and law. There will be certain offences that society does not consider morally blameworthy and to convict someone in such a case would contradict the principles of fundamental justice embedded in our Charter. This is by no means an “easy” case to decide. Fuller would argue that this case is difficult to judge because it has significant emotional impacts; this is definitely a case where morality and law are closely and clearly connected. Although the justice system has ruled on this case and give its final word, the public has not fully accepted the decision without skepticism.

Animal interpretation of Fuller: Check it out!

= Law as a System of Rights and Principles- Dworkin =

Dworkin believes that when a case does not fit directly within a rule, it is necessary for judges to rely on principles which influence their decision. It is these principles that infuse the judging process. Through the incorporation of principles within the process, even when the rules might not apply, the principles behind that judgement will still apply. Judges that apply these principles correctly will arrive at the correct answer. Dworkin's view is in opposition to Hart who believes that these hard cases fall within the penumbra and as such are decided based on judicial discretion. If in applying the rule it would offend the underlying principles then the rule should be altered to adequately represent the principles.

Applying Dworkin's philosophy to our case, the judge could rely on the principals behind the rule that prohibits murder in order to come to a decision. In the case it appears that both society and the judiciary agree to the principal that murder should be illegal. However, they also agree that a person should not be punished for what they did if they are not morally culpable for the act (i.e. it was necessary for him to kill another person). As well, if the underlying principles were to say that Latimer should be justified in killing his daughter then the rule itself would need to change.

The defense of necessity sets out strict guidelines that must be fulfilled in order to make out the defense. The requirements are informed by an objective analysis which must all be made out in order for the defense to stand. The defense of necessity is informed by the underlying principles of the criminal justice system that we should not convict a person who was forced to kill. When combined with the violation of the rule against murdering someone, it acts as a principle allowing a judge to decide a difficult case when a person has violated the aforementioned rule. As well, it allows for our society to ensure that those who commit an act which violates one of our rules (i.e. not to murder another) to be acquitted despite the fact that they committed the act. The court is given the opportunity to use principles in order to inform their decision and decide fairly when such difficult cases arise as the one presented in Latimer. Although the defense is structured as a rule when deciding whether or not it applies, it acts as a principle guiding the judges and the jury when assessing a case of murder.

In this case, it appears as though the principles underlying the defense of necessity were not met. As such, the fairness and justice of acquitting a person who killed another out of necessity were applied correctly due to Latimer not fulfilling the requirements of necessity as outlined by the Supreme Court. Latimer was not facing imminent danger or peril, he had the reasonable legal alternative of allowing his daughter to live, and the proportionality of the harm inflicted was far greater than the harm avoided. Latimer did not satisfy these requirements, and thus the principle of justice within our system whereby a person who is forced to kill may be acquitted was not violated. The fact that there was no air of reality to the defense, meant that the Supreme Court was correct in upholding that the defense should not have been put to the jury.

Dworkin states that policies are social goals pursued by a segment of the population. It is the legislature's responsibility to manage and create policy due to a democratically elected body being best suited to understand the needs and changing attitudes of society. In this way, if the social goals were violated then the legislature should alter it to reflect the viewpoint of the society. At the end of the decision in R. v. Latimer, the Court provides a final option to Mr. Latimer: he can appeal to the mercy of the executive for a clemency. The Court affirms Dworkin's fundamental argument that decisions concerning policy are best suited for the legislature. The courts are not suited for such decisions even though they may be forced to rule on them.

Animal interpretation of Dworkin: Check it out!

= Liberty and Paternalism =

JS Mills

Although a restriction on individual liberty when murder is concerned is not difficult to justify, there may be a case to be made for the presumption in favour of liberty when a man's long-suffering and highly disabled child is the focal point, as is the case here. It can be accepted that a parent knows what is best for their child, and has at least something of a right to determine their well-being and future, especially when that child is incapable of making such a decision for themselves. If it were possible to ascertain what Tracy herself would have wanted, this argument would be moot; however, she was not mentally or physically capable of making or even communicating such a choice or opinion. Thus, who knows better what is best for a child than a loving father who is tied to that child by both blood and life-long toil? The right to liberty only applies to a person in possession of mature faculties, and Tracy was anything but that. She was of non-age (someone the law deems to be a child). However, the flip side of the coin to this argument is that since she is of non-age, the state/government/legal system is in the best position to deal with her and decide things for her, rather than the parent.

Mill believes that the harm principle is the only legitimate justification on such a decision. On the one hand, there was obvious irreperable harm done to Tracy in the sense that she lost her life; but it could be argued that overall Latimer was helping rather than harming his daughter by euthanizing her and ending her suffering. Then, the harm principle would not be truly activated and there would be no real justification for Latimer's persecution. Authority must be limited and controlled according to Mill, so there may be a need for recognizing political liberties or rights (such as a parent's right to euthanize a disabled child, or a constitutional check on government's authority to criminalize euthenasia in such circumstances). This would be individual liberties working to set the necessary limits that can protect us from authority's inherent problems. The fact that such an act constitutes murder under the law may be an example of the tyranny of the majority – the tyranny of prevailing opinion and feeling in this case. Many people if asked would probably be sympathetic to Latimer, but the majority and those in power have a different view on the matter, and they dictate the status quo.

Again, there is a limit on liberty in the protection of others. But rather than construing Latimer's actions as harming his daughter, it could be seen as a merciful act of protection and an alleviation of her terrible state of being. It may very well have been better to end her life than for her to continue living the way she was. Society's interference with a father's decisions regarding his disabled daughter may not be justified; their perspective may be overly conservative and outdated, and effectively cutting off progressive new ideas such as assisted euthanasia. Since she never had the chance to be moulded by society it would be impractical to expect her to exercise her morality. Due to this it could be argued that Latimer's actions are a means of either exercising her authority, much like Mill believes that society is responsible for a person that has not yet reached the level of liberty.

However, such an argument is dependent on speculation regarding just how “liberal” or progressive Mill would be today; there is a good chance that he would bee state interference justified where a disabled child that cannot make decisions for themselves is concerned. If they believe that what is in their best interest is surgery and a continued struggle rather than euthanasia, then that is what would prevail according to Mill. They make such a decision in lieu of the child themselves. At the end of the day, Mill would probably characterize killing your daughter, however humane your intentions, as being too harmful and thus Latimer's individual liberty should rightfully be restricted by a murder conviction. The compulsion not too murder and the accompanying consequences from the state are legitimately justified in restricting liberty, for the sake of preventing serious harm like death to others. The fact that he can live his life while others respect his liberty imposes a requirement for him to extend this same courtesy to others – and he did not do so for his daughter.

Dworkin

Dworkin's paternalism would have a different take on the matter. He believes that paternalistic interference with harm to oneself is justified to prevent long term or ireversible damage to that person's autonomy. Thus, it is likely that Dworkin would see Latimer's actions as causing rather than preventing long-term or irreversible damage to his daughter's autonomy; ending her life is the ultimate act of taking away her autonomy, as she will never be able to do anything again. Autonomy is the key principle here, and there does not seem any way to justify Latimer's act of taking away (whatever little) autonomy his daughter had while she was living. Such constraints on liberty would be justified if this would ensure Tracy's long-term autonomy – but it did the exact opposite. The least restrictive alternative should have been chosen, and ending her life was thus not the correct choice.

Dworkin would say paternalism is justified in R. v. Latimer because the purpose of the restriction on autonomy is to protect the fundamental right to life of the daughter, which the father had violated. Although his own personal liberty and autonomy are being hampered by providing for her, this does not give him the right to take away her life, and the paternalistic control exercised by the courts and government are fully justified in this case. They may rightfully interfere with Latimer's freeom and with society in general by criminalizing behaviour such as his.

Animal interpretation of Mills:

Check it out! This was selected because searching for two headed birds came up with depressing results. = Law and Economics =

The cost benefit analysis of murder would be the less murder that occurs the more comfort in society and the less likely that people are going to hobble back into a cave to hide. As well, every time someone dies they are no longer contributing to society, thus lower global productivity. However, in our case the daughter was not really contributing to society in the first place due to her state of helplessness. In fact, she could be seen as a drain on society. It may be morbid to construct the argument such as this but the fathers killing of his daughter could be seen as benefiting society by eliminating the societal leech. The money that was being spent supporting her slow demise could have facilitated other medical procedures which would have increased productivity.

Alternatively, the defence of necessity could be seen as costing society due to it giving people a way out. It allows someone to kill and get away with it. However, currently the court makes the test so strict and difficult to use it is not an economical defence. Due to this it does not undermine the value that society places on criminal law to encourage a free and safe society while punishing those who threaten our safety. The potential is there as the gate is open but the exception is so narrow that it does not cause a problem. In this way, a person is unlikely to commit murder under the belief that they could get away with it by relying on the defence of necessity. In effect, it is a last hope defence. As such, when Latimer killed his daughter he did not percieve that he would avoid prosecution due to it being an act of necessity, it was just the best defence available to him and was worth a shot.

While criminalization is a costly process, it is unlikely that there are other practical alternatives to deal with the gravest of offences: murder. The severe punishment attached to a murder conviction and the cost of convicting and imprisoning such an offender, is the most desirable way to achieve the end goal of punishment and deterrence (assuming these are societies goals and not rehabilitation). The more efficient our criminal law system works, the less the social cost will be.

One aspect of the theory of economics that was not discussed was whether society benefits from the work done by a prisoner. While our current system of imprisonment probably costs much more then the value received from goods or services produced in a prison, that is not true of all societies. Prison work camps such as those that existed during the Nazi's reign maximized output while minimizing expenses such as food, shelter, etc (not that this was a good thing, just a demonstration of the other extreme).

Animal interpretation of Law and Economics: Check it out! = Legal Feminism =

Feminist theories concerning law are composed of a cluster of different viewpoints, rather than one specific school of thought. Through a feminist lens, the question to be posed when reading through the case is: “What does this mean for women?”

There are numerous questions that permeate the patriarchal influence in our case: Did Tracy’s mother know about Robert’s plan to end the life of their daughter? Did she agree with his decision? Did Robert feel that it was his duty, rather than his wife’s, to take matters into his own hands? And most importantly, would Robert have ended his child’s life if Tracy were a boy? This question will never have an answer, but it is interesting to think about how Robert’s relationship might have bee different with Tracy, had she been born a boy.

In our case, we really do have a female subject and victim: Tracy Latimer. Her father, the family patriarch, ultimately determined and controlled her life and death. It may be that Robert perceived that it was his right, as Tracy’s father and head of the household, to end her life. This thought or belief originates from the patriarchal norms that have dominated society throughout history. According to feminists, it is patriarchy that causes the oppression of women and it is the destruction of the patriarchal system that will truly lead to the emancipation of women.

Was Tracy a victim of patriarchy?

Tracy was a disadvantaged on two fronts: she was a girl and she was (severely) disabled. The inequality between her and her father was pronounced from the moment of her birth. Her disability had always limited her physical, mental, and emotional capacity. However, Tracy’s inequality really stemmed from her disability because as a result of her cerebral palsy, she did not have the same opportunities as non-disabled girls her own age.

In particular, radical feminism is concerned with the deconstruction of gender within the patriarchal system. In order to understand what it means to be “female”, gender must be dissected to its very roots. The biological functions of women tend to be a primary focus of this strand of feminism. Throughout history, women’s main purpose has been reproductive, and this function is deeply rooted in patriarchy. Perhaps through a radical feminist’s view, the murder of Tracy is the ultimate culmination of sex and violence. Tracy was twelve years old at the time of her death, she was at the age when most girls enter puberty, which signifies a girl's passage into womanhood. Unfortunately, Tracy would never grow up to be an independently- functioning, child-bearing, or child-rearing woman. Was the fact that she was trapped in the mind of a four-month old baby enough for her father to want to end her life? If Tracy could not perform her fundamental “female” duty as a mother, it may be that her father thought it best to terminate her life.

In the end, Robert Latimer was convicted of second-degree murder and sentenced accordingly. The defence of necessity was not accepted and he was punished for his actions. As a result, male domination was not legally upheld by the Supreme Court of Canada. However, Robert's charge was initially dropped from first-degree murder to second-degree murder. Is this an example of what feminist's might refer to as a preferential treatment of man? According to the different branches of feminism, law is never neutral, but is always made in favour of those with more power.

Feminist jurisprudence analyzes the law through a feminist view and from the standpoint of women. There are some feminist legal scholars, like Catharine MacKinnon, that see law as a male creation. As a result, law tends to hide the prevalence of male domination within the judical system. For example, most of the concepts and ideas within the legal system only represent the male point of view. The "reasonable man" was changed to the "reasonable person" in the objective standard test that penetrates all areas of law. But MacKinnon argues that in fact, the objective viewpoint is still made from the "reasonable man". Just because the wording has changed does not mean the system has changed the way it works. In our case, what does this mean for the objective tests applied to the actions of Robert Latimer? Would the objective test regarding the three requirements for the defence of necessity have yielded a different result had the Court applied a true "reasonable person" test? To further the discussion, what would an objective "reasonable woman" test have produced? It is interesting to note that there was quite a female presence on the bench when this case was decided. Chief Justice Beverley McLachlin was joined by Honourable Justice Claire L'Heureux-Dubé and Honourable Justice Louise Arbour. The Court was unanimous in its decision concerning the application of the defence of necessity, but perhaps the three women helped to provide a more well-rounded and gender-balanced approach to the test. This case may be one where the true "reasonable person" objective standard was applied.

Animal interpretation of Feminism: Check it out!

= Critical Legal Studies &amp; Critical Race Theory =

In Critical Legal Studies all relations between people are viewed as political. In this way, the relationship that Latimer had with his daughter would be seen as political. However, due to the daughters very limited state the political nature of the relationship is very much one sided. As such, not only does the father have a higher political status but anyone that interacts with her would have a higher political status. The inequality in political status does not mean that Latimer should be justified in ending his daughters life.

Race is a social construct that simply cannot be ignored. Even though Latimer and his daughter are both Caucasian it does not mean that race has not played a role in their world view. That being said, due to not having information (besides the limited amount contained in the trial judgement) regarding the father or daughters background it is difficult if not impossible to understand the story behind their race. In this way, just because we are aware that Latimer is a white male does not mean we can use his race to tell us anything about him as a person. His race has greatly shaped his experiences, his behaviour, and thus his worldview.

If Latimer had been acquitted then he would have been deemed the reasonable person in a situation such as his. In this way, by appointing him as a reasonable person then critical race theory would be critical as labelling him a reasonable man. By using these terms society is essentially marginalizing minority groups. Not only does man not have a universal experience, each person has their own story to tell. Alternatively, Latimer himself has become part of a minority group due to the adversity and stigma attached to him. On our outside research of the case we came upon information that Latimer was kept separated from the rest of the prison population out of fear that he would be attacked by others because he killed a child. The only way that we can learn about his story is by talking to him and analyzing him as a person separated from his race.

The daughter can be viewed as being part of a minority group due to her disability. It is unclear whether a general liberalist theory would protect her as being part of a minority group or whether taking a critical legal theorist approach to learn about her story would be the best way to protect her and her rights. On a side note, it would be very difficult to learn about her story from her due to her almost non-existent ability to communicate.

This case has proved difficult for Canadians to accept and understand; they continue to grapple with the Supreme Court of Canada decision. There are people on both sides of the controversial debate about whether Robert was a villainous murderer or simply a compassionate father. But one thing this case has done is open the door to discussion surrounding disability. According to Critical Race Theory and Critical Legal Studies, in order to deconstruct the stigmas around race, sex, disability and other minority "characteristics" we need to talk about them. Listening to the experiences of those who are different from us is key to surmounting discrimination.

Animal interpretation of Critical Race Theory: Check it out!

= Now it's time for a break = Check it out!