Citation. Can. Sup. Ct., 1 S.C.R. 3, 193 D.L.R. (4th) 577 (2001)
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Brief Fact Summary.
Latimer, convicted of murder for killing his daughter, pleaded the defense of necessity.
Synopsis of Rule of Law.
When necessity is pleaded as a defense, the three elements which should be established are a situation of urgent and clear peril, the lack of a reasonable legal option, and the proportion between the harm or injury inflicted and the harm avoided.
Robert Latimer had a 12-year-old daughter, Tracy, who had a severe form of cerebral palsy. Her whole body was immobile and she could not move any of her limbs. Mentally she was at around the level of a four-year-old, and experienced five or six seizures every day despite her anti-seizure medication, and had a lot of pain for which medication was not useful. She had no terminal illness, however. She had undergone a series of complex and painful surgeries for various symptoms, but none of them were curative. Latimer had taken “admirable care” of her for years, fully participating in her care and showing great love. At last when another surgery was scheduled, which, he was told, would cause still more pain and would need to be followed by other surgeries, he put her to death without suffering, by carbon monoxide. He was convicted of second-degree murder. He appealed, pleading the improper exclusion of the defense of necessity before the jury by the trial court.
When necessity is pleaded as a defense, must the three elements of a situation of urgent and clear peril, the lack of a reasonable legal option, and the proportion between the harm or injury inflicted and the harm avoided be established?
(By the Court) Yes.When necessity is pleaded as a defense, the three elements which should be established are a situation of urgent and clear peril, the lack of a reasonable legal option, and the proportion between the harm or injury inflicted and the harm avoided. Here, the three elements appear to be not real. The illness Tracy suffered from was not an emergency but a chronic and intractable one. Therefore Latimer was not dealing with an emergency. Neither the surgery proposed nor the medical condition posed any immediate risk to her life. Secondly, he had the legal option of continuing with the difficult state of affairs. Thirdly, it is almost impossible to conceive in what situation the benefit of killing a human being could outweigh the cost of ending a life. The harm inflicted in this case, ie, killing Tracy, is infinitely more than the benefit of avoiding the pain resulting from her scheduled operation. Killing to avoid suffering instead of opting for medical management of a physical or mental conditions is not a proportionate answer to the harm caused by the non-life-threatening suffering inherent in that condition. The appeal is dismissed.
In the U.S. there are different opinions as to whether the proportionality isever applicable in a case of homicide. Several jurisdictions do not allow the necessity defense in murder cases. However, the American Penal Code includes it as a defense for homicide.