Mandatory minimum sentences, such as the ten-year minimum for murder, serve some purpose in the justice system, ensuring that certain types of crimes are properly denounced by society. In the case of murder, most Canadians would probably agree that ten years is a suitable minimum.
The problem is that mandatory minimums, in preventing full judicial discretion in sentencing, do not allow for mitigating circumstances that could drastically alter the nature of the crime. In the introduction to the Latimer book I write:
Ending the life of another human usually represents the opposite of the kindness and compassion we so value. Most such actions are correctly called murder; they are committed with malice, and they are reprehensible. But on occasion the ending of a human life is done not out of malice, but out of love and mercy. Such cases are the opposite of malicious ones; they represent courageous acts of human love and kindness. Such acts of mercy are not murder.
For various reasons, some of which will be discussed in this book, our legal system in Canada fails to provide sufficient opportunity to make the critical distinction between selfless acts of mercy and cruel acts of murder. The one serves the interest of a dying person; the other is directly contrary to the interests of a living person. One serves to make a more compassionate society, the other the opposite. In a truly just society, we would try very hard not to conflate these two actions which arise out of completely opposite motivations.
In Canada, do we try very hard to make the critical distinction between murder and euthanasia? And do we have effective mechanisms for making this distinction? In 1993, Robert Latimer, a Saskatchewan farmer, ended the life of his desperately ill daughter and for the following seventeen years has been entangled in legal proceedings that included seven years of imprisonment. Convicted of second degree murder, he will be on parole for life.
There are two main ways sympathetic prosecutors can, in the case of murder, circumvent the sentencing restrictions. One is to make the charge manslaughter; the other is to make it “administering a noxious substance.”
The trouble with these possibilities is that they are technically incorrect in the cases of the deliberate taking of a life. That is defined as murder in the Criminal Code of Canada, and using the lesser charges requires a sympathetic prosecutor who is willing to overlook the exact wording of the law. In Latimer’s case the Prosecutor in his first trial was not at all sympathetic to his case and insisted on a charge of first degree murder. The jury had the right to reduce the conviction to second degree murder, which they did, but not to manslaughter, which they probably would have done. Had the lesser charge of manslaughter or administering a noxious substance been used Latimer would have been found guilty, but could then have been given a modest or even suspended sentence that, in the minds of most Canadians, would have much more fair. This has happened in some other cases of mercy killing in Canada. The current situation is inconsistent and discriminatory because it means the same offence will be treated in different ways by different prosecutors.
A solution to the inadequate wording of the Criminal Code in regard to homicide was proposed in the 1995 Final Report of the Special Senate Committee on Euthanasia and Assisted Suicide, “Of Life and Death.” Although refusing to recommend more lenient laws on assisted suicide and euthanasia, the Committee did suggest that the Criminal Code be amended to include a third category for murder called “compassionate homicide,” with more flexible sentencing provisions. This suggestion, the only progressive one from the entire report, has never been taken up by our legislators.
Short of changing the laws on assisted suicide and euthanasia, the provision of a compassionate homicide law would seem most worthwhile, although even that modest idea is rejected strongly by the lobby groups who oppose any leniency in regard to such matters. To them it is all murder, and they come out in force whenever there is public discussion of the issue.