Arthur Schafer is founding director of the Centre for Professional and Applied Ethics, University of Manitoba
On Oct. 24, 1993, Robert Latimer, a farmer from Wilkie, Sask., killed his severely disabled daughter Tracy just short of her 13th birthday. After a series of appeals and a retrial, he was convicted of second-degree murder and was sentenced to life imprisonment. Mr. Latimer was granted full parole effective Dec. 6, 2010. Now, however, he is campaigning for a pardon, thus reviving the controversy surrounding his crime and its punishment.
Before the passage of Bill C-14 (2016) legalized assisted dying in Canada for competent adults who satisfy certain legal restrictions, family members sometimes killed their loved ones illegally to spare them from unremitting suffering. Such killings continue, though less frequently. Interestingly, however, imprisoning anyone for mercy killing has been exceedingly rare. That’s partly because prosecutors exercise their discretion to charge the accused with lesser offence, such as manslaughter or administering a noxious substance – offences which allow the court flexibility to make the punishment fit both the crime and the criminal.
Sometimes, however, juries simply refuse to convict. Consider the Ramberg case from 1941. A young Alberta couple was charged with murdering their two-year-old son, who was in excruciating pain from terminal cancer. As was the case with Tracy Latimer, the Ramberg child was killed by asphyxiation from vehicle exhaust fumes. The prosecution proved that this was a case of premeditated murder. Nevertheless, the jury, after deliberating for all of 10 minutes, voted to acquit.
The similarities between Ramberg and Latimer are striking. The Rambergs' son experienced unremitting pain from terminal cancer. Tracy Latimer suffered from cerebral palsy and, as the Supreme Court noted (in its 1997 judgment): “It is undisputed that Tracy was in constant pain." Moreover, Tracy was facing a series of extremely painful surgeries for which she would be given only Tylenol. That’s because the Latimer family were informed by Tracy’s doctors that any stronger drugs would interfere with her anti-seizure medication and might cause her death.
So, why did the Ramberg jury vote to acquit while the Latimer jury voted to convict?
One of the lawyers in Ramberg explains: “Legally, it was murder, but the jury wasn’t prepared to convict them. I think the attitude of the jury was that it was a very decent young married pair who were doing their best.” As for the second jury who convicted Mr. Latimer, although they found Mr. Latimer guilty of murder, they were likewise persuaded that he acted from love – to spare his daughter a life worse than death.
According to the Supreme Court judgment, Mr. Latimer’s jury in the second trial asked to have input on sentencing – but it was not made clear to them that a conviction for second degree murder carries a mandatory minimum sentence of life imprisonment, with no parole eligibility for ten years. Perhaps, if this had been explained, they would have voted for acquittal, as happened in Ramberg.
At all events, both judge and jury concluded that Mr. Latimer was motivated by love when he killed his daughter. Justice Ted Noble then imposed a light sentence because sentencing Mr. Latimer to prison for a minimum of 10 years would be “cruel and unusual” punishment. The common sense and compassion of judge and jury were overturned on appeal. Mr. Latimer continues to say that his sentence was unfairly harsh. He fits the label “remorseless killer” only in the sense that he continues to believe that he did what was best for Tracy.
Most Canadians agreed with Mr. Latimer. As shown by a poll taken in 1999, a strong majority of Canadians (73 per cent) shared the jury’s conclusion that Mr. Latimer acted from compassion and that his sentence was too harsh. The same poll showed that many Canadians (43 per cent) actually favoured the legalization of mercy killing.
A vociferous minority believes that Mr. Latimer got what he deserved. They argue that Tracy’s severe disability did not justify her father’s action. Indeed, they see her killing as a hate crime against the disabled. But that argument ignores the years of loving care given to Tracy by her father and family. The judge and jury concluded that Mr. Latimer killed his daughter not because she was disabled, but because her suffering had become unbearable and was likely to get worse.
Mr. Latimer’s critics also argue that Tracy never consented to her death and “that’s what makes this a crime – an unforgiveable crime.” And it’s true that Tracy’s severe brain damage meant that she was unable to decide for herself whether continued life was more burdensome than hastened death. Hers was a case of non-voluntary euthanasia. But so far from regarding compassionate homicide as an unforgivable crime, many Canadians empathize with the plight of the Romberg and Latimer families.
Allowing families to make such fatal decisions for their incompetent loved ones is risky (although of course we do allow families to make decisions about withdrawal or withholding of life-support.) Prejudice against those with disabilities is still widespread, and poor judgment is common. But that shouldn’t mean that we treat loving parents who kill from mercy as harshly as we treat people who murder from greed, jealousy, hatred and malice.