Latimer and Jury Nullification

The story below about Robert Latimer raises an interesting question about jury nullification -- is it something that can be the basis for a re trial?

The Supreme Court has said jury nullification is proper in Canada but that does not mean that a judge is obliged, or even entitled, to suggest that a jury can ignore the law. And in Latimer's case it is clear he is guilty of murder -- to find otherwise would require a jury to judge without reference to the law.

While a pardon seems possible (at least legally) and new trial seems unattainable.

OTTAWA - Robert Latimer shows no sign of wavering in his long quest for vindication in the mercy killing of his daughter, but the legal avenues open to the Saskatchewan farmer at this late date seem few and far between.

As he arrived in Ottawa on Monday, Latimer reiterated his long-standing demand for a new trial - one he believes would finally clear him of criminal wrongdoing.

He had to admit, however, that family, friends and legal advisers aren't optimistic about his chances.

"I don't think anybody has any confidence that I'll get anywhere," he said on arrival at the airport. "But if you don't ask, you definitely won't get anywhere."

Latimer's problem, say legal experts, is that it takes more than a sincere belief that a judge or jury were wrong to overturn their verdicts.

It usually takes new evidence to establish mistaken identity, police misconduct, tainted forensic evidence, or something equally compelling.

Latimer just doesn't appear to fit the legal framework, said Paul Copeland, a Toronto lawyer and co-president of the Association in Defence of the Wrongly Convicted.

"His is not a case that we ever would have gotten involved in," said Copeland. "I don't think Mr. Latimer is in any way, shape or form innocent of the death of his daughter."

Copeland agreed it's a tragic case in which Latimer thought he was doing the right thing when he ended the life of his daughter to free her from the pain of incurable cerebral palsy.

But the fact remains he confessed to police that he put the girl in the cab of a truck and piped in the carbon monoxide that took her life.

"He got convicted mostly because he was very candid, very honest about what he had done," said Copeland. "It's unlawful to do that, and I don't see the law getting changed at any point in the near future."

Former Saskatchewan premier Allan Blakeney, who once lobbied on Latimer's behalf as president of the Canadian Civil Liberties Association, believes a new trial wouldn't do any good.

A better approach, said Blakeney, could be a campaign against the mandatory minimum sentencing provisions that left no leeway for leniency in Latimer's case.

"There are instances where the taking of a life - while not to be encouraged - shouldn't bear the same stamp of moral turpitude that ordinarily attaches to the title of murder," said Blakeney.

There was no immediate comment from Justice Minister Rob Nicholson, but the current Conservative government has shown little enthusiasm for leniency in sentencing under the Criminal Code.

On the contrary, the Tories have brought in legislation broadening the number of offences that carry mandatory minimums.

Given that reality, said Blakeney, Latimer may want to consider applying for a pardon - something the federal cabinet has wide discretion to grant.

The Supreme Court of Canada raised that possibility in a 2001 ruling that otherwise rejected all the arguments mounted by Latimer's lawyers.

"I've read very few Supreme Court judgments that contain so obvious an invitation," said Blakeney.

Until now, however, Latimer has adamantly insisted he doesn't want a pardon for doing something he doesn't think was criminal.

He made the point again Monday as he renewed his demand for a new trial.

"That's the only thing that can set me free," he declared. "A jury should be allowed to consider whether (what) I did was right or wrong."

But two juries have already convicted him of second-degree murder. The first verdict in 1994 was set aside on appeal because the jury selection process was deemed faulty, but the second decision in 1997 was upheld.

That second jury recommended - and the trial judge imposed - a sentence of a year in jail and another year of house arrest. But that was overturned because the mandatory sentence for second-degree murder is life with no parole for 10 years.

The Supreme Court, in its review of the affair, rejected the idea of a so-called constitutional exemption that would have lessened the sentence because of the special circumstances of Latimer's case.

The federal Justice Department, for its part, says Latimer has never filed a formal application for a new trial, despite his repeated public statements that he wants one.

"We have an application brochure that we send out to anybody who makes a request, outlining exactly what we need," said Kerry Scullion, head of the conviction review group at Justice.

He wouldn't comment on the specific facts of the Latimer case. But he noted, as did others, that significant new evidence is usually needed to justify a new trial.

"We can't look at the same facts as a (judge or jury) looked at, or as the court of appeal looked at ... You need something more."

Latimer also remains free to seek a pardon if he changes his mind and chooses to do so, said Scullion.

There are two types available - unconditional pardons that essentially erase a criminal record, and conditional pardons that reduce a sentence.

Applications can be filed through the National Parole Board or the Justice Department, with the final decision resting with cabinet.