Winnipeg Free Press - PRINT EDITION

Justice denied

Latimer case exposes flaws in legal system

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AFTER serving seven years of his life sentence, Robert Latimer was eligible to apply for day parole. The principal job of the National Parole Board, in hearing applications, is to judge whether the applicant poses a danger to the community. If the applicant is not likely to reoffend then the request for day parole should be granted.

Since Latimer poses no conceivable danger to the community, agreeing to his request should have been a no-brainer. But Latimer refused to play "the parole game". He believes that he did the right thing and refuses to pretend otherwise. Latimer is a plain-speaking farmer from Wilkie, Sask. He does not do hypocrisy. The parole board, impressed with its own power and unimpressed by Latimer's independence, put this uppity inferior in his place. Latimer will suffer for his refusal to grovel; but the reputation of the Canadian legal system will suffer equally.

To make sense of what happened at the parole board hearing, we need to revisit the beginning of this story: On Oct. 24, 1993, Robert Latimer killed his daughter, Tracy. He was charged with murder and, after a series of appeals and a re-trial, he was convicted of second degree murder.

The Saskatoon jury found that he had been motivated by love and concern for the suffering of his daughter. They recommended unanimously that he receive a sentence of only one year in prison. They were unaware that in Canada a conviction for murder carries a mandatory sentence of life imprisonment. For second-degree murder, there is no parole eligibility for at least 10 years. When the jurors discovered this, some wept.

Judge Ted Noble agreed with the jurors' recommendation and ruled that life imprisonment, in this case, would constitute cruel and unusual punishment. Accordingly, Noble sentenced Latimer to one year in prison and one year on his farm.

The Supreme Court overruled Noble, partly on legal grounds but partly because, so it claimed, the Latimer family had rejected effective pain control options for Tracy, including a feeding tube into her stomach. On this point the Supreme Court seems to have got its facts drastically wrong. Tracy's orthopedic surgeon testified unequivocally at trial that even with a feeding tube, Tracy could not tolerate the kind of medication she would need to control her severe pain. Moreover, such a tube could be easily pulled out by an agitated child. Did the court want Latimer to add to Tracy's miseries by wrapping her so that her movements were totally restrained? That would have been to pile misery and cruelty on top of pain and suffering.

It's noteworthy, however, that despite rejecting Latimer's appeal, the Supreme Court offered strong hints that the government should rethink its policy on mandatory minimum sentences: "Where the courts are unable to provide an appropriate remedy in cases that the executive sees as unjust imprisonment, the executive is permitted to dispense mercy, and order the release of the offender." The government of Canada did not take the hint.

That same day, Jan. 18, 2001, Latimer turned himself in to authorities and began serving his sentence.

Critics of Latimer, including some disability rights activists, repeatedly describe his killing of Tracy as a hate crime against the disabled. They refer to Latimer as a "remorseless killer", and argue that had he not received a harsh punishment society would have declared "open season on the disabled."

Technically, "remorseless killer" is an accurate description. Latimer did kill his daughter and he feels no remorse for what he did. But, though technically accurate, the description is profoundly misleading. He feels no remorse because he believes it was his moral duty to save his daughter from a life of unbearable pain. Many Canadians agree with him, at least to the extent of thinking that if they were in Tracy's position they would want Robert as their father. Even those who worry about the wider social implications of mercy killing feel sympathy for the family's tragic plight.

Both judge and jury rejected the view that Latimer killed his daughter because of her disability. Tracy suffered from the most severe kind of cerebral palsy, but there was no evidence whatsoever that Latimer was motivated by her disability. On the contrary, as summarized by Judge Noble, "all of the evidence points to his concern for the pain which he saw flowing from her illness." The Supreme Court, though it rejected Latimer's appeal on legal grounds, nevertheless agreed that this was a crime of compassion.

Interestingly, Robert Latimer is the only person in Canadian history to spend even a single day in prison for a mercy killing. That's partly because prosecutors often exercise their discretion to charge the accused with an offence other than murder. Conviction on a lesser charge, such as manslaughter or "administering a noxious substance", allows the court flexibility to make the punishment fit the criminal as well as the crime.

Another significant factor: Canadian juries have generally been reluctant to convict those who kill in order to bring an end to unbearable suffering. To illustrate. In 1941, an Alberta couple asphyxiated their young son with exhaust from their car. He had been suffering unremitting pain from cancer. The prosecution proved that the parents were guilty of premeditated murder; nevertheless, the jury voted to acquit. Legally, it was murder. But common humanity led the jury to recognize that neither hanging nor lengthy incarceration was a morally appropriate response. In essentials, the Latimer case is identical. Robert killed Tracy with exhaust from his truck. She, too, was suffering from pain that could not be relieved, or so the Latimers were told by Tracy's doctors. Death seemed to be a merciful release.

Tracy's situation is, fortunately, rare, and it is implausible to suggest that parents of disabled children will kill their children unless deterred by the threat of a heavy sentence. There was, after all, no wave of such killings prior to the Latimer sentencing. Very few people think that Latimer deserves a harsh sentence -- he clearly doesn't -- and even fewer favour public denunciation of what he did. The best way to defend and protect the disabled is to provide adequate funding for the services and care they need.

As long ago as 1995, the Special Senate Committee on Euthanasia and Assisted Suicide recommended unanimously that Canada adopt a new category of homicide, to be called "compassionate homicide". Conviction would allow courts the sentencing discretion and flexibility our current law of murder does not permit. Countries such as Sweden and Switzerland have adopted this sensible proposal. As the Latimer case proves, our current law could do nicely with an infusion of justice and humanity.

Arthur Schafer is professor of philosophy and

director of the Centre for Professional and Applied Ethics at the University of Manitoba.

Republished from the Winnipeg Free Press print edition December 7, 2007 $sourceSection$sourcePage

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