THE ROBERT LATIMER CASE: TEN COMMON MISREPRESENTATIONS

In October of 1993, in Canada’s most famous case of mercy-killing, Robert Latimer ended the life of his eleven-year-old daughter, Tracy. He did so by placing her in the front seat of his truck, turning on the engine and using a tube to direct the exhaust into the cab. A week later he was arrested for murder, leading to seven years of legal proceedings, ten years of incarceration and the rest of his life on parole. The trials pitted strict application of the law against conscience, compassion and mercy, and the law triumphed, punishing Latimer severely for his act of human kindness. Many Canadians were very distressed by the injustice that played out in this case – not that all those in sympathy with him thought he should go completely unscathed, but that the punishment did not fit the “crime.”

In 2007, Humanist Perspectives was able to offer some help. We featured an extensive and critical review of Latimer’s first Parole Board hearing, an event which led to the shocking refusal of his application for day parole after serving seven years in prison – already seven times longer than his jury had recommended. Our coverage reached the attention of the BC Civil Liberties Association, where lawyer Jason Gratl undertook an appeal, at his own expense. Although appeals of Parole Boards’ decisions are rarely successful, Gratl’s powerful brief was decisive and Latimer was finally given his day parole.

The case has been extensively covered in the press and continues to be so whenever some new issue arises, such as Latimer’s recent appeal for either a new trial or a pardon. But one big obstacle to showing him any sort of mercy has been a dogged band of critics who publicly attack Latimer whenever and for whatever reason he surfaces. While often misguided and misinformed, and sometimes cruelly vitriolic, this criticism does not go unnoticed by politicians and government officials. That may be why Latimer’s long search for some sort of exoneration has been a struggle at every turn.

The critics come mostly from two camps: certain religious groups who fervently believe in the doctrine that only God can end a life, and self-appointed defenders of the disabled. Such people are entitled to their beliefs, and to argue in support of them. But I am less sanguine about the false narratives that frequently accompany the criticism. Let us review some of the “alternative facts,” that have been cited by Latimer’s detractors:

1. Latimer ended his daughter Tracy’s life because she was disabled. Recognizing what he did as an act of mercy would be “declaring open season on the disabled,” as explicitly stated by the prosecutor in Latimer’s first trial (and by many others).

   In fact, Latimer took the action he did because the little girl’s deteriorating physical condition caused her on-going severe pain which (for medical reasons) could not be adequately mitigated by painkillers. It was the extremity of her pain and the hopelessness and deteriorating nature of her condition that led Latimer to end his daughter’s life, after almost 12 years of dedicated and loving care given to her by both Robert and her mother, Laura. Tracy was severely disabled throughout her life, but Latimer only took action to end it when faced with an imminent corrective operation which seemed, to him, like yet another medically sanctioned torture and mutilation of his child.

   Describing Robert Latimer’s action, the Chief Justice of Saskatchewan, E.D. Bayda, wrote:

   . . . it is a fair inference and an important one to keep in mind that [Tracy] was not put into her father’s truck because she was disabled. She was put there because of her pain, something very different from her disability. She was put there because her father loved her too much to watch her suffer. While the killing was a purposeful one, it had its genesis in altruism and was motivated by love, mercy and compassion or a combination of those virtues, generally considered by people to be life-enhancing and affirmative.
   

2. Tracy Latimer could have gone on to have a good life and maybe even lived independently.

   Tracy suffered from severe cerebral palsy, not a milder form which can allow for a relatively normal life. Her condition was caused by oxygen deprivation during her birth, when Tracy was irreparably damaged. At twelve she had the mental capacity of a three- to four-month-old baby. She could not move any of her limbs in a purposeful manner. A number of operations had attempted to alleviate her suffering, but no interventions could overcome the relentless advance of the disease and decline of a little body racked with spasms so severe that her hip joints would sometimes become dislocated, causing her to scream in pain. Her doctor described the upcoming operation, involving removal of one hip joint leaving a “flail” joint, as a “salvage” job that would leave Tracy even less mobile and in even greater pain for many more months. And before long her other hip would likely have needed the same treatment.

   Tracy’s orthopedic surgeon described her in this way:

   Tracy had an affliction known as cerebral palsy, and this is a lifelong affliction. She had one of the worst forms of cerebral palsy, in that she was totally body involved – her total body was involved – from her head right down to her toes, so all four limbs, her brain, her back, everything was involved. She was in the most severe classification that we have for cerebral palsy.

   During the trial, Dr. Kemp, the Latimers’ family physician, testified:

   Lawyer:
   And certainly as far as the suggestion that, maybe with work, that she could learn to actually control her hands well enough to feed herself or give herself a drink, that wasn’t going to happen, was it?

   Dr. Kemp:
   No.

   Lawyer:
   Likewise, she was never going to have enough control over her body to be able to sit on her own, unless she was strapped up, is that correct?

   Dr. Kemp:
   Yes.

   Lawyer:
   The people in the hospital with cerebral palsy essentially need the same kind of 24-hour care that any young infant would need, is that correct?

   Dr. Kemp:
   More care than an infant.
   

3. Tracy went to school on a daily basis; her condition couldn’t have been that bad.

   Some critics have seized upon talk by Tracy’s mother, revealed during the trial, that Tracy had regularly gone to “school.” In fact, she was sent in her wheelchair by bus to an annex of the local primary school that was reserved for severely disabled children. The children were sent there for physiotherapy and visual stimulation. Tracy did not and could not participate in any sort of normal schooling.

   Following is an exchange with one of Tracy’s caregivers at the “school”:

   Lawyer:
   You mentioned Tracy was going to school. We shouldn’t misunderstand, she certainly wasn’t going there to be taught to read or anything like that, was she?

   Caregiver:
   No.

   Lawyer:
   At the school she would get physio that would help her with range of motion of the limbs that could still be manipulated, is that right?

   Caregiver:
   Right.

   Lawyer:
   If her body completely seized up, she could be very, very difficult to try and care for, if there wasn’t some flexibility kept in her joints, is that correct?

   Caregiver:
   Right.

   Lawyer:
   It’s not like she was getting physio with the idea of rehabilitating her body to the point where she’d walk, or anything like that?

   Caregiver:
   No.

   Lawyer:
   And the other purpose of her going to the school was simply for stimulation, to try and provide some entertainment in her life?

   Caregiver:
   Yes.

4. The “happy girl.”

   There was a journal that travelled with Tracy, the purpose of which was to keep track of Tracy’s condition so that her next caregiver would know what she had been fed (she could not eat or drink anything by herself, such as grasp and put food to her mouth as even very young babies can do) and they would know what bodily functions she had performed. In the manner of a caring, loving mother, Laura desperately wanted to normalize Tracy’s condition as much as possible, which is why she spoke of “school” and why, in the journal she frequently referred to Tracy as a “happy girl.” One thing that Tracy could do was smile, which she might do when she saw her mother or a sibling. But we should not mistake Laura’s wishful thinking for what she really understood about the realities of the situation.

   The prosecutor in the trial used Laura’s journal comments to dramatic effect, asking repeatedly if Laura had written particular comments and then asking her to read them aloud: happy girl . . . happy girl . . . happy girl . . .

   This phrase was of course picked up by Latimer’s critics, but the weaponization of these private, heart-rending attempts of a desperate mother to find something positive in her daughter’s condition, by the prosecutor and Latimer’s critics, was and is unfair. Even the presiding judge, in his instructions to the jury, appeared to think so as well:

   In fairness to Mrs. Latimer, I counted about 35 entries by her in the witness box. We don’t know how many other entries there were, or what they said. It is for you to say, ladies and gentlemen, but 35 entries over a period of 19 months may not paint a picture of Tracy’s health and happiness that is complete, and I suggest that you should probably, although it is a matter for you, entirely for you, take a critical look at that argument.

5. Latimer should have given Tracy the choice to live on or die.

   Tracy could not have even begun to understand the question. Of course it is problematic to end a life without permission, and it is reasonable to have legal sanctions against such actions. But it is also reasonable to show some understanding of the monstrous dilemma faced by the Latimers, and to show them some sympathy (which his critics do not).

   Assisting death for a suffering person who is competent and aware is now widely and legally accepted in Canada. But the mercy-killing issue remains unresolved – what are we to do with someone in hopeless suffering who is not competent to make a decision about dying? This is a complicated problem not amenable to simple solutions, but until it is resolved we should be circumspect in condemning those who find themselves in a situation where mercy conflicts with the law.

6. Latimer was treated with “kid gloves.”

   In fact, his treatment by the Canadian justice system, some of which I witnessed, was brutal. Due to an unusual intervention by then Solicitor General Laurence Macaulay, Latimer was initially and inappropriately sent to a high-security prison, where his life was in danger from other inmates. I once encountered a man who claimed to have been an inmate at that prison when Latimer arrived there, and he told me that there had been a plot afoot to murder Latimer. In all, Latimer was entangled in legal proceedings and incarceration for 17 years and is now on parole for life. The Parole Board’s punitive attitude to Latimer, which I have written about in an earlier edition of HP (#164, Spring 2008), has been shameful.

7. Latimer’s act was a selfish one.

   If ending Tracy’s life was a self-serving act, as is sometimes alleged, then why would his judge and jury, who examined all the evidence, seek (unsuccessfully) only a short token sentence? Why would even his prosecutor allow that this could well have been an act of love? Why would the Supreme Court of Canada, while upholding the verdict on the grounds that it was technically correct, take the unusual step of suggesting that Latimer should seek the possibility of relief through a pardon? Why would Chief Justice of Saskatchewan E.D. Bayda write:

   [Robert Latimer] has no criminal record. He poses no risk to society and requires no rehabilitation. He enjoys a very healthy and wholesome reputation in the community…

   . . . The actor himself was not a murderous thug, devoid of conscience, whose whole life has been one of violence, greed, contempt for the law and a total disrespect for human beings. On the contrary, the actor was a nurturing, caring, giving, respectful, law-abiding responsible parent of the victim.

   Why would the highly accomplished psychiatrist, Dr. Menzies, who examined the evidence in detail and interviewed several of those involved in case, including a lengthy assessment of Latimer himself, testify:

   In my opinion, Latimer has an intact, well-adjusted personality. There was no evidence of any personality disorder, personality disturbance or psychopathy; there is no evidence of any major mental disorder and, from a psychiatric point of view, I would say he is in pretty good shape, if not excellent . . . from his point of view, the only thing that motivated his behaviour was his desire to rid Tracy of chronic pain and, aside from killing her, he saw no – no alternative.

   Why would trial judge Justice G.E. Noble, in sentencing, write:

   Not only his wife but his sisters described his love and devotion to this child. When asked about the standard of care the Latimers provided Tracy her doctor said “excellent.” So the evidence does not suggest that Mr. Latimer did not do his share in caring for Tracy so far as his other responsibilities to his farm and family would allow him. He came across as a devoted family man with a loving and caring nature. Beyond that it was apparent he was well regarded in his community. He had virtually no criminal record (an alcohol-related driving offence some 20 years ago, long before he married Laura). It is also clear from the ongoing history of this whole case that he is not a threat to society nor does he require any rehabilitation. In summary, the evidence establishes he is a caring and responsible person and that his relationship with Tracy was that of a loving and protective parent. On the evidence it is difficult to believe that there is anything about Mr. Latimer that could be called sinister or malevolent or even unkind towards other people.

8. There were better alternatives than the one Latimer chose.

   There were none – at least none that would be better for Tracy. More effective pain medications were ruled out for medical reasons. Could Tracy have been sent to a care home? The Latimers tried that but found Tracy’s condition worsened away from home. She suffered the same pain then, but without the comforting presence of her parents.

   Laura Latimer, in her testimony, spoke of this:

   Bob didn’t want her to go [to a group home], and especially when she was in pain, he couldn’t bear to have her in pain somewhere else. This was not going to be the answer for Tracy – I mean it would not be in Tracy’s best interests. He did not want her to go at all.

9. Latimer should express regret for what he did.

   Latimer would never do this, even when it might have made the Parole Board more sympathetic to him. He believes that he did the best thing for Tracy and, whatever the consequences, he would never express or feel regret for doing that.

   Critics of Latimer have made much of Latimer’s refusal to express remorse, seeming to take this as proof of his callous indifference to his daughter’s death. A member of the BC Association for Community Living, after Latimer’s first parole hearing, in which day parole was denied, proclaimed, “He showed absolutely no remorse.” The Board itself, in its statement after the hearing, seemed also to be concerned about this:

   The Board was unable to conclude there has been any commitment or motivation for change . . . you require further intervention forward to assist you in developing a better understanding of your motivations for this crime to ensure you are prepared to manage your risk for future offending.

   In other words, we are going to keep you in prison until it appears that you are sorry for what you did. These Parole Board members, it should be pointed out, are political appointees with no necessary expertise in the issues that should be under consideration when deciding if a person should be released from prison. The wrong-headedness of this particular Board decision was received with nationwide expressions of outrage and resulted in the overturning of the decision by an Appeal Board.

   Perhaps a more sophisticated Board would have recognized, in the first place, that a show of remorse is not a reliable indication of suitability for parole. Psychopaths, feeling no pangs of conscience, are notoriously proficient at feigning remorse. Other offenders, such as pedophiles, may be genuinely remorseful, but then are unable to control themselves.

   The Parole Board’s egregious misfiring in the Latimer case should have provided cause for a re-examination of the selection process for Board members. It appears not to have happened.

10. Robert Latimer is a threat to others, especially the disabled.

    Because of the public criticism of Latimer, some people have embraced the notion that he is a danger to society. One elderly woman in Victoria, where Latimer was first released on day parole, wrote to a local newspaper claiming that she was now afraid to go out in her wheelchair because Latimer might see her and do her harm. While he was in prison the Parole Board would not let Latimer go to Vancouver to visit his good friend and nephew, who happened to be a quadriplegic. They felt that he could not be trusted around a disabled person. The absurdity of these concerns was made evident in many ways, as in the words of the Saskatchewan court of Appeal:

    …there is no suggestion that Mr. Latimer is now a danger to society or likely to commit acts of violence if released. He has no previous criminal record and, apart from this conviction, he has led an exemplary life without violence or lawless behaviour.

    And the Supreme Court of Canada itself wrote:

    The sentencing principles of rehabilitation, specific deterrence and protection are not triggered for consideration . . . [Latimer] was not being sentenced in order to promote the rehabilitation of his character or deter him from committing offences in the future or to protect the public . . .

Robert Latimer faced a dilemma of the sort that that few of us ever encounter: let his child endure worsening suffering or help her find a merciful death. And in his heart Robert Latimer knew which was the best option, for Tracy. His conscience led him to doing what he saw as the best thing for her.

Perhaps Latimer should have acted otherwise, but critics who have never walked in his shoes should be more circumspect about condemning him. Perhaps, as well, critics should check their facts; then they might be more inclined to show some compassion for this decent and beleaguered man.

When Laura Latimer discovered Tracy had died, not knowing that Robert had been the cause, she exclaimed that,

“Finally something has gone Tracy’s way.”

After almost 25 years of legal punishment, Parole Board harassment and ill-informed abuse from self-appointed Tracy surrogates, it is time for something to go Robert Latimer’s way. Like a pardon. ♦