JR'S Free Thought Pages
The Case of Robert Latimer: Punishing Acts of Mercy
By Gary Bauslaugh
Humanist Perspectives, Spring 2008
We can often get away with evil acts, but a good one will haunt us forever. - Gilbert Ryle
The Law is an ass when it inadvertently causes an injustice. It does not always or perhaps even often do so. But when it does, all people who believe in the pursuit of justice through the rule of law ought to be concerned.
In an act of mercy killing in 1993 Robert Latimer, a Saskatchewan farmer, took the life of his twelve-year old daughter Tracy. The girl had been brain-damaged at birth and suffered from the worst form of degenerative cerebral palsy. She had the mental capacity of a three to four month old baby. She was subject to virtually constant seizures that wracked and damaged her body, causing great pain. Anti-convulsants reduced the seizures to a few per day, but this medicine conflicted with strong pain medications, which then could not be used to alleviate her pain. Tracy had been subjected to four different operations designed to ease the pain and mitigate the damage caused by the seizures, by such measures as cutting muscles to reduce the violence of her movements during the seizures. Her last operation involved inserting rods to straighten her spine, which had become deformed from the stress of her seizures.
The operation did straighten Tracy's spine - she could now sit in a wheel chair - but she still was in constant, severe pain. The convulsions caused her right hip to dislocate regularly, and her hip joint had deteriorated to the point where it could no longer stay in place. Tracy had difficulty sleeping after the last operation, and Robert and Laura Latimer did not see their daughter sleep at all during the last few weeks of her life.
The final blow - the event that galvanized Robert Latimer into taking the only action he felt could really help his daughter - occurred when Tracy's doctor informed Laura that Tracy would need yet another operation. This rime the plan was to cut off the upper part of her right femur, so that the bone would be fully separated from her hip socket. Her leg would then dangle freely, with less pain caused by interaction of her flailing leg bones with her damaged sockets. The pain, he said, would be intense for some months, but should eventually ease off somewhat, though it would never go away. And before long her left leg would need the same treatment.
It is not clear what would have happened if the Latimers had refused the new operations; it is possible that Tracy would have been made a ward of the state and the operations would have been done anyway. But even if they could refuse these new operations, which they saw as ghastly further mutilation of their severely compromised and helpless daughter, Tracy appeared to be facing her remaining life (she had already lived longer than most children in her condition) in abject, uncomprehending misery. It appeared that this nightmarish existence would no longer even have respites of relief through sleep.
If there were ever mitigating circumstances for taking a life, here they were. But Latimer still faced a daunting task. There was no law that could help - no enlightened euthanasia policy that would allow independent assessors to determine if there was a life worth living here. The deliberate taking of a life, whatever the circumstance, is considered homicide by the Criminal Code of Canada; there is no clear distinction made between taking a life with malice and taking one tor reasons of mercy, though in the latter instance a case can be made (it is a difficult one) for necessity. This in fact was Latimer's defense, but even in his extreme circumstance it was rejected. In general one can expect that two exact opposite motivations for taking a life, hatred and love, will be considered equal under the law.
There were no friends or advisors to call upon for help in ending Tracy's suffering, for anyone who did help might become implicated themselves in the death. As he considered what to do, Latimer could not discuss his plan with his wife (or anyone else) lest she be judged complicit in the 'crime.' Latimer did know, though, how Laura felt about the matter. After returning from her last terribly disheartening visit with Tracy's doctor, Laura made the despairing comment that maybe they should "call Dr Kevorkian." So Robert Latimer, alone, set out on a mission of mercy that would have dire consequences for him and for the rest of his family. Except of course for Tracy, whose terrible suffering was ended.
Latimer simply says now, after fourteen years of legal entanglement, as he did then: "It was the right thing to do."
ROBERT LATIMER GREW UP IN NORTHERN SASKATCHEWAN. He was not a quiet, retiring youth: he went to lots of parties, did lots of drinking and smoked lots of marijuana. He ran into trouble with the law a few times over these things, the last time in the 70's. Then he married Laura, settled down and took over his father's 1280 acre farm. Tracy was their first child (later they had three more) and Robert and Laura struggled for twelve years to make some sort of life for her, and to get whatever help was possible. But with Tracy's progressive deterioration and escalating pain, and with the proposed new operations, they felt a real sense of despair, unlike anything most people will ever encounter in their lives, including parents of the vast majority of handicapped children, who can have at least a semblance of a reasonable human life, or some hope, or something. Here there was nothing but suffering, and worse to come.
Robert Latimer understood that there could be serious legal sanctions taken against him. He knew that if his wife were involved in any way she would be implicated too. So on October 24, 1993, after Laura and the two other children had gone to church leaving Robert was at home with Tracy, he took his sick child out to his truck, turned the motor on, and funneled the exhaust into the cab with Tracy. In a few minutes she was dead.
Latimer took his daughter's body back into the house and put her back in bed, where her mother later found her dead. This action has been called insensitive and callous, but it was not that. He wanted to ensure, as best he could, that Laura would never be implicated in the death. So he said nothing to her, and left Tracy where it would appear she died naturally. By his actions Robert Latimer ensured that he alone would bear any legal sanctions for Tracy's death.
That is not to say there necessarily would be legal consequences. Latimer told no one what he had done, and the entire matter probably would never have come to public attention, except that an autopsy was performed and it was discovered that Tracy had been poisoned by carbon monoxide. Latimer then told his story and the legal proceedings started.
Robert Latimer has been much criticized as well for not coming forward immediately and now when asked if he would have, he says he does not know. He had a young family to be concerned about. And he is a private man, and the idea of this story being picked up by the press, with the life of his family on display, was of great concern to him then, as it is today. He felt he had done what he needed to do and wanted simply, then, to get on with his life and be a farmer and husband and father. Without the autopsy my guess is that he would never have come forward. I can't honestly think that I would have either, through I understand the arguments (see article by Bryson Brown) for doing so.
THERE ARE MANY SUPPORTERS OF THE ACTIONS OF ROBERT LATIMER but there are also many vehement detractors. Why do they feel so strongly about the wrongness of what he did?
There are two main groups that have voiced strong and entirely unsympathetic criticism of Latimer's action. One consists of people who believe that human lives should not put it, human life is a sacred journey and only God can decide when it should be ended. For such people the taking of any human life is reprehensible - the mercy killing of a person in desperate hopeless, intractable pain is just as bad as, say, serial murder. In a free society the views of such people must be accepted, insofar as their own lives are concerned. But their perspective, based upon a particular reading of ancient scriptures, ought not to be imposed on all of society.
This belief in the need to defer to what is perceived to be the wish of God is directly contradictory to the humanist belief in personal autonomy. Why should we choose one belief over another? One reason that a rational person might choose belief in personal autonomy is that it is based upon personal dignity and freedom, and upon respect for human individuality. Declaring the primacy of God's will, on the other hand, is fraught with arbitrariness and inconsistencies. When there are many different interpretations of scriptures by people of faith, how can one particular view, no matter how strongly believed, be the basis of public policy? Moreover, there are few objections from the religious to increasing our natural life span, which would seem to be interfering with God's plan as much as ending a life of suffering. And most people holding objections to premature ending of a life in pain, of someone who wants to die, are not pacifists: they do not object in general to wars in which people who want to live are purposefully killed. And many also support capital punishment.
Such views, irrational though they be, are permissible in a pluralistic democracy. We do allow certain people of faith to exercise what they view to be their religious duty - to object to assisted suicide and euthanasia - without allowing them to set public policy on the matter. Secular public policy is necessary to protect the rights of people of all faiths, as well as those of no faith.
The second group of critics of Latimer is sometimes called the disabled lobby. The phrase that sums up their fears is that permitting the taking of any life "will lead to open season on the disabled." Many of these critics have a connection with a disabled person, whom they love and care for, and they entirely misread the objectives of right-to-die movements. These movements have nothing to do with culling out supposedly inferior humans, "the fragile among us.' as the fear seems to be. They are about the very opposite of this - they are about protecting individual human rights. They are about living in freedom and, if one so chooses, dying as one wishes to die. They are not about disrespecting human life, as representatives of the disabled mistakenly claim but about respecting individual freedom and the dignity of human life.
Some critics of Latimer's action take the position that because Tracy had no choice in the matter her fundamental human right to life was violated. This concern highlights the problematic nature of euthanasia, where there is no consent, as compared to assisted suicide, where there is. The philosophy behind both, however, is to protect one's right of personal autonomy, not to remove it. People ought to have the right to control what happens to their own bodies, and have the right to die in circumstances of their choosing, with help if necessary. Euthanasia is an extension of this idea, for those incapacitated to the point where they are not able to express their wishes. It is based upon an assessment of what such a person could reasonably be thought to have wanted, but was unable to say so. Ideally this would come from some prior statement by the person, though in cases like that of Tracy Latimer this is not possible. Human decency, though, would seem to require that in such cases it should somehow be made a legal option - not through individual decision but through a carefully - controlled legal process.
Many critics make no distinction at all between assisted suicide and euthanasia, and make no allowance for mitigating circumstances in either case. According to this view all such things are equally bad. Very commonly they use misrepresentation and scare tactics to bolster their extreme position and to try to generate public support. So we hear fanciful stories about Tracy Latimer being a happy camper; we hear unsupported criticism of Robert Latimer's character; we hear about the peril of slippery slopes and the impossibility of adequate controls if these actions were legalized. We should realize that all of these are manufactured observations and pretexts: these critics would be undeterred and unsympathetic whatever the circumstances of Tracy's life, whatever the character of Robert Latimer, whatever the possible safeguards might be.
There is of course a real problem with simply breaking the law when one thinks it to be wrong; for all of the support many people have for Robert Larimer's action, feeling that it is the right thing to do to take another's life cannot in itself be accepted as sufficient reason to do so. The people who murder abortion doctors, for example, feel, entirely justified in their actions; they too feel they are coming to the aid of helpless individuals. Euthanasia then, as an act of mercy, must somehow be separated from those acts that are falsely or improperly construed as such. That is why many people agree with the notion that it is correct to have found Latimer technically guilty, though deserving of leniency. People with this view are not among those who applauded the punitive treatment of Latimer - they are likely to have supported the token punishment recommended by Latimer's jury. But they feel that taking a life cannot be a matter of individual conscience, and that in such cases, no matter what the justification, conviction is necessary for the protection of society. There is a persuasive argument that can be made regarding personhood and murder - that to be simply alive and of human origin is insufficient reason to be granted all of the rights of personhood. These arguments, though, invoke extraordinarily hostile responses from those who find that making any distinctions in the value of human life is unthinkable. Much of such opposition comes from those who believe that the moment of conception is something engineered by God and that the newly fertilized egg has sacred status, and must be given all of the rights and privileges (insofar as that is possible) of a fully - formed human being. But reasoned concern exists, as well, in regard to considering the taking of life as a matter of individual conscience.
There is, however, a sensible solution to the difficult problem of euthanasia. It would be far better to have an open and legal process, as recommended by bioethicist Eike Kluge in the winter 2005/06 issue of Humanist Perspectives. Kluge supports the legalization of euthanasia but with a carefully selected panel of experts making a disinterested assessment of each individual case. This would provide a way for society to deal sensibly and humanely, and legally, with terrible intractable problems like that of Tracy Latimer. It would be one way we could improve society.
Robert Latimer's first trial led to a verdict of second degree murder, but that was thrown out because it was found, after the event, that potential jury members had been screened by the police. Before rendering a verdict at the second Latimer trial the new jury asked the judge if they could have a say in the sentencing if a guilty verdict was returned. The judge said they could, but failed to tell them that there is a minimum often years before full parole can be granted, on a life sentence for second degree murder though with the jury absent he was urged by the defense lawyer to explain this.) Subsequently the jury, apparently thinking that they could ask for a very short or even suspended time in prison, returned the verdict of guilty of second degree murder. Then they were told about the ten-year minimum. Some of them wept. It is entirely possible (some jurors have indicated as much) that, had they known about the ten years, they might have returned a verdict of not guilty, even though they felt that technically Latimer was guilty. (See Theo Meijer's discussion of juries and Henry Morgentaler)
Latimer's jury was not about to accept the sentencing ruling, however, and they asked for a one-year jail term, in spite of the minimum. After about a month's deliberation the judge agreed with the one year, making what is called a constitutional exemption to the minimum. Judge and jury, then, agreed that Latimer should spend only one year in jail. However, the prosecution brought the decision to the Saskatchewan Court of Appeals, where it was overturned by three justices who had not attended the trial, and had not listened in person to the testimony. They denied the claim of exceptional circumstance and imposed the ten-year minimum sentence. This meant that day parole could be granted after seven years, and full parole was possible only after ten.
In assessing the fairness of the Latimer parole hearing then, as discussed below, it is instructive to see it in the context of the views of Latimer's judge and jury who, after listening to the entire legal proceedings, unanimously felt he should not have to spend more than a year in jail. And it is important to realize, too, that had the jury been told of the minimum ten-year sentence they might well have returned a verdict of not guilty.
PAROLE HEARINGS REPRESENT A KEY POINT IN THE ADMINISTRATION OF JUSTICE. In Canada we do not wish to keep people incarcerated for any longer than is necessary to provide some basic level of deterrence and to provide protection to the public by keeping dangerous people locked up. The determination of the appropriate time for release from prison is as complex and as important, and as fraught with issues of fairness and justice, as the initial determination of guilt and assignment of sentence.
Though in many ways it is as significant as the initial trial and sentencing, however, parole hearings, in Canada at least, are conducted with shockingly less concern for fairness. For one thing, those making these very far-reaching decisions, deciding on whether or not a convicted person is to be returned to society, are political appointees with no particular require skills or background for the duties they will perform. It might be argued that if juries consist of lay people, then why not parole boards, but the circumstances are entirely different. The essential question, a determination of the chance of re-offending, is one that cannot sensibly be made by unskilled people. A background in criminology with an extensive understanding of research on the field ought to be a basic requirement here, as should legal training, at least for some Board members. Most members of the Parole Board's Appeal Division are lawyers; as we shall see, this greater understanding of the law by the Appeals Division allowed them to overturn an egregiously bad decision by the Board itself, which might have been prevented by having more skilled and informed members.
Moreover, because in parole hearings the applicants must, unlike in trials, speak for themselves, the parole board members must be skilled in assessing the relevance of personal style. Unskilled people placed in a position of such heavy responsibility are prone to making all sorts of unwarranted inferences - such as thinking they can tell when someone is telling the truth, or thinking that apparent lack of remorse suggests irresponsibility or callousness, which they then may well use to falsely estimate the chance of re-offending.
So this is no job for lay people, though such people, were they selectee like juries, would be preferable to what we have now on parole boards, which is essentially the appointment of lay people with a connection to the party in power. This is not a good way to seek disinterested justice, and one can only think that it has been allowed to persist because the convicted are essentially a forgotten segment of humanity, and fairness for such people is not a matter of much public concern. There have been attempts to reform the system, and to replace political appointees on parole boards with skilled professionals, but these lucrative appointments are prime patronage plums. Our politicians will not give them up easily. The result is an on-going scandal and an abuse of political power. Change will only occur when we demand that our politicians act more responsibly.
THE FIRST PAROLE HEARING FOR ROBERT LATIMER WAS HELD ON DECEMBER 5, 2007, at the William Head Institution near Victoria, British Columbia, where he had been imprisoned for the last four years of his sentence. He was eligible for day parole, after being in prison for seven years. I attended the hearing, along with other members of the media and press, and two observers from an advocacy group for the disabled. I had visited Latimer several times at William Head in the last couple of years, and a number of times had questioned him about his upcoming parole hearing. There was one point I was specifically concerned about: remorse. One hears stories about parole boards wanting offenders to be sorry for what they have done. Folklore has it that this is the first step toward redemption. If this indeed was to be a factor in the hearing I thought that Latimer would be in real trouble, because he was determinedly, and with considerable justification, unrepentant. Would he now, at a parole hearing, be expected to say that this single most difficult and courageous act of his life was wrong?
The whole idea of remorse no longer has much credibility amongst experts in the field. Before the Latimer hearing, National Parole Board official Patrick Storey (who was knowledgeable, courteous and helpful in all my dealings with him), in response to a question from reporters, said that the research shows that remorse is no indication of the future behavior of a parolee. There are offenders like pedophiles who are truly remorseful, but cannot help themselves and will re-offend. And there are psychopathic personalities who, without the impediment of conscience, can effectively play any role that will help them get what they want. I was encouraged by Storey's understanding of this, but he would not be making the decision. That would be left to the political appointees.
I also wondered about Latimer's ability to make a good impression with the parole board. I mean this as no personal criticism, because there is no reason why he should be an effective strategist and manipulator of people. These are not qualities that loomed large in the world in which he grew up. He says what he thinks, straight out, tries to avoid anything personal, and that is it. But I had spent much of my life immersed in academic politics, and though I am not likely a better person for it, I do understand something of how to affect people and situations. I could see that Latimer did not. His reluctance to talk about personal things, his failure recently to get legal advice or coaching for the hearing, his decision not to have (as is allowed) an assistant at his hearing - all seemed like things that might hurt him. At least they might if the Board decided to make such things an issue.
THE HEARING WAS HELD IN THE ROOM WHERE VISITORS meet inmates, a good-sized room with a small food service area and a beautiful view out over the water. The entire prison occupies a spectacular 86 - acre peninsula of land about a forty minute drive up the west coast of Vancouver Island from downtown Victoria. In earlier years the land was used as a quarantine station for Chinese immigrants. Then some years ago a medium security prison was built there, which was changed to minimum security about five years ago. The surrounding "treacherous" waters had once been touted, like the waters around Alcatraz, as being impossible to swim through, but apparently Federal authorities eventually thought otherwise when they reclassified the prison. I must say that the possible escape route seemed very unlike the truly treacherous one around Alcatraz. It looked like you could wade around the fence at low tide. The imposing double razor-wired fence at the entrance, extending along the full width of the peninsula and a little way into the water is a holdover from the days of supposed higher security. When the security designation was lowered the fence remained, at the request of nearby residents.
A table was set up in the hearing room with three Parole Board members on one side facing us as we came in. This is the usual number for these hearings, apparently selected at random from a dozen full-time and part-time Board members. Latimer and his Parole Officer sat with their back to us, as is required. He is not allowed to interact or even look at the observers. I sat in the front row, directly behind Latimer about five feet away.
One Board member, Kelly-Ann Speck of Mission, BC, took the lead and made some preliminary statements about the process. She is Regional Vice-Chair of the Board, and has held a variety of executive management posts in government. The other members, who said less throughout the process, were Ben Anderson of Victoria, former Chief Constable of the Oak Bay Police Department, and Maryam Majedi, of Vancouver, a Manager in the Office of the BC Attorney General.
This was not a situation in which Latimer, sitting there with only his parole officer at his side, would likely give the best account of himself. He did not look comfortable, nor when given a chance to speak did he do so with much confidence. He had been given no help in how to present himself to the Board; in a trial situation he would not only have a lawyer to speak for him, he would get careful advice from his lawyer on what to say if he did decide to testify. But here, nothing. In the interests of fairness one could only hope that the Board members would be sophisticated enough to realize this, and not be unduly affected by personal style in coming to their decision. Whatever one feels about the Latimer case, I would hope that most people would agree that jail time should not depend upon the ability to speak glibly and convincingly about private matters.
The parole officer who had been working with Latimer spoke first, in a voice so soft it was difficult to hear any of what she said. But it was clear enough that she was strongly recommending parole, on the grounds of positive psychological evaluations and because Latimer had behaved well in prison, had taken courses to improve his education, and was at little risk to re-offend. She was questioned on this by Kelly-Ann Speck, who referred to one psychological study that said that faced with similar circumstances Latimer could re-offend, presumably because he had continued to insist that he had done the right thing, and in the same circumstance would presumably do the same thing again. The parole officer did not see this as a problem because she could see little chance that he would ever again be in a similar circumstance - it had taken twelve years of watching the progressive deterioration of Tracy, twelve years of seeing her frail body wracked with convulsions and severe pain, twelve years involving four highly invasive operations with a fifth in the offing, that led to his desperate action.
Speck, though, was still concerned about the psychological report, suggesting that it raised questions about his understanding that he had committed a crime, his accepting responsibility for what he had done, and his failure to show due respect for the law. This line of thought became the main basis for Speck's evident discomfort with Latimer. Bu it seemed to me to be nothing much more than seeking remorse, as I had feared might be the case. Speck was playing the remorse card. But an honest man cannot express regret for breaking the law, when he believes that "it was the right thing to do."
As the hearing progressed it became apparent that a number of bad thing happening. Speck's approach to the question of remorse or, as she repeatedly put it, accepting responsibility for hi: actions, was unfair, and Latimer was not performing particularly well. Bui Speck is a person vested with and paid handsomely for playing a key role in our justice system; Latimer is a man who is inexperienced in such matters, uncomfortable with persona questions, unwilling to be pushed into saying that which he did not believe, and a man who was given little or no help in preparing for and participating in an event that would have a major impact on his future.
The limitations of assessing a person's nature from an interview are well understood now. Studies have shown, for example, that most people have absolutely no ability to tell if someone is lying or not. Often the most honest people appear otherwise because they are concerned about being truthful and are hesitant and careful in their responses. Sociopaths, on the other hand, without ethical scruples, can exude forthrightness, while telling egregious lies. Kelly-Ann Speck and her colleagues on the Board, but especial she, seemed to be of the view that they could assess Latimer's character by the way he responded to their questions.
SPECK BEGAN HER DETAILED QUESTIONING OF LATIMER by asking him about prior difficulties he had had with the law, in particular a conviction for impaired driving in 1976. He mentioned that he did get into trouble a number of times in the 70's for alcohol and marijuana use. Then she asked him:
"Was drug use and alcohol use a part of your life on a regular basis then?"
"A bit, yeah," Latimer answered.
"... what happened after with your drug and alcohol use ..." she asked.
"I didn't get into too much trouble after that ... I think," Latimer responded.
Speck went on at some considerable length to grill Latimer about these and other early escapades in his life. Did she think that his behavior as a young man in his early 2.0's, involving alcohol and marijuana, was somehow still relevant over 30 years later? Latimer's muted responses did not serve him well in this or in later exchanges. In his first answer he could, for example, have said that he was young and immature at the time, that his friends were all doing the same things, and that he was not proud of any of it, just as many of us are not proud of things we did in our youth. And his remark that not much happened after that - "I think" - was typical of his tendency to express himself in an understated manner that seemed to annoy Board members throughout the session. A lawyer could have helped him with this, but of course he did not have one.
Speck then went on to ask about Tracy.
"So we have then the offense that put you in jail - the murder of your daughter ...what role did you play in her care? ... she was very vulnerable ..."
Instead of simply saying that he and Laura shared in the care, Latimer was imprecise in his answer, saying things like "I was her father." To a man like Latimer that would seem like sufficient answer to the question - he understood that a father's role is to take care of his child. But it seemed not to satisfy Speck. I started to wonder what this had to do with the likelihood of Latimer re-offending, which is supposed to be the thrust of a parole hearing. The Board seemed intent on retrying Latimer for taking the life of his daughter, but without the presentation of evidence and without defense counsel. Years of legal proceedings had taken place looking at questions like this, with careful arguments presented on both sides, and now Speck was going to put Latimer on trial again, in a circumstance where he was uncomfortable, unprepared and unrepresented.
"What was your attitude to the reality of having a disabled child? ... I am trying to understand how ... you and your family responded to her ever growing needs ...was it twelve years of misery?"
Latimer, in an increasingly strained voice, tried to respond to the many issues being raised.
"Yeah, I suppose you could say ..." he started to answer at one point.
"I'm actually interested in your view- not my view, your view," Speck interjected sharply.
He tried to respond with a description of the Tracy's terrible difficulties, and Speck would say that he was not answering and that she wanted to know what his feelings were. She was oblivious, or did not care, that he is obviously a man who does not talk about his feelings. She appeared to place enormous weight on his reticence, apparently believing that discomfort in talking about your personal feelings is a reason for denial of parole.
Speck proceeded to question Latimer on why he made the decision to end Tracy's life. She questioned the decision at the particular time it was made, saying the doctor's decision to have another operation seemed like only a "slight difference" in the kind of treatment Tracy would be receiving.
"You term it a slight difference?" Latimer said incredulously. "We didn't see it that way." He said that they saw the cutting off of Tracy's femurs as further "mutilation of a child who already suffered an incredible amount."
Speck, though, wanted to know more about how he felt at the time, and why he made the decision when he did.
"Your wife went to the [doctor] appointment ... and so the next day was the day you killed your daughter..”
"No ..." he answered and tried to remember exactly when the events happened.
"So how did you get from finding out from your wife ... to the decision that you made?"
Latimer talked some more about the timing and his discussions with his wife: "She just said she'd like to call on Dr Jack Kevorkian."
"So this was initially your wife's idea ..."
"That was the comment she made.”
"So how did you get from that expression of grief, on her part, of being overwhelmed, to your decision to plan to carry out the murder?
"Ohh, it took a few days ... I can remember driving around in the fields ..."
"So how did you decide on the means that you would use?"
Latimer responded to these questions at length, but he did not seem to be connecting with Speck. Then Speck went into a series of questions about his discomfort with need injections and other medical procedures, apparently gleaned from the psychological reports. "Do you that this came into play at all in the way you came to view the medical treatment of your daughter?" The implication seemed to be that he may have done in his daughter because he did not the medical aspect of her care. Latimer said that he did not like these things but a lot of people feel the same way.
Speck went on to ask about the means Latimer had chosen, carbon monoxide, and then she pressed him on the events of that day: “You didn't answer my question ... how did it happen that day ... walk me through the crime ..."
Eventually we heard another from the panel, Maryam Majedi, who had been staring intently at Latimer all during Speck's questioning and she particularly wanted to know why, after Robert and Laura had discussed the doctor's report, they hadn't talked to anyone else.
"My colleague asked you a question about why you didn't you ask for any help for you and your family," she said. "You said no you didn't ask for any help. When your wife came back and told you about her discussion with the doctor ... and you came up with the idea to kill your daughter ... at that time did you think about talking to somebody ... getting some help ... trying to find other ways than killing her?"
"No," Latimer said.
"Why not?" Majedi demanded.
The medical profession had spent 11 years trying to find ways to help, Latimer replied, and her condition had continued to deteriorate. He described how her condition had worsened with each surgery. He described in some detail how as she got worse her seizures would be so violent that her joints would be pulled from her sockets. "When confronted with the realities of the position she was in, we could see nothing else that could help ... we could see no golden solutions to her problems."
But Majedi seemed unimpressed, and continued to insist that he should have sought other options, other than, as she put it, "I am going to plan to kill her ... and I will do it when nobody's around."
"... it was the best option for her ... we could not ask her - she had no ability to talk ... she certainly showed pain ... we didn't have options ..."
"But you don't know if she wanted to die or not; you never know."
"I can expect that she didn't want any more pain."
"But you don't know."
"I can only go by what I would have wanted for myself."
Then the interview took an even more nasty turn. Speck returned again to her theme of what Latimer's feelings had been: ...you reached the decision ... and found a way to do it ... It struck me as a very cold way to do this, to take your daughter and place her in the car and hook it up and then wait for her to die ... You waited, is that correct? What was going through your mind?"
His response did not please her; he said that what was on his mind was that a decision was made, and he had to act on it.
So you were unemotional about the whole thing," Speck said. "I wouldn't say that." "What would you say, sir ...You are here trying to explain your behavior - you need to share with me what was going through your mind at this point."
"No one has really asked me too much about that ..."Latimer answered. In seven years of legal proceedings no one had considered such questions to be relevant, but now Speck did. Latimer went on a somewhat haltingly: "... it was a very personal thing ... It wasn't like a big guilt trip. I still don't feel guilty. I still feel it was the best thing to do. [The proposed new medical interventions] would be required by law. What I was thinking that this was the best thing for her. It wasn't, as you characterized it, cold." "...it was ... it was premeditated ... you were not overwhelmed with grief at the moment ...You made the plan in advance ... it actually required planning ... I'm unclear as to your state of mind ..."
"Like was I emotional? Yes." But this clearly was not the baring of soul that Speck was after. She wanted to know how long he stayed with Tracy afterwards (unclear), and then tackled him on putting Tracy back in her bed and leaving her there for her mother to discover.
"Your family is off in Church at this point ... you picked her up and took her back into the house ...why did you let your wife discover her? ... You had not told her you were doing this, and instead of saying she died in her sleep you let her go upstairs and discover it ... What do you think about that? Was that the way to handle it?"
Struggling under the attack Latimer said something about it being the easiest way to handle things, but giving little satisfaction to the panel, the members of which, though never having ever been themselves in any comparable situation (who has?), appeared to have very strong feelings about what exactly he ought to have done.
"... you tried to cover it up," Speck said, "the only reason the world knows about this was somebody did an autopsy and discovered she was poisoned. Until that moment there was a charade going on ... there was no 'I am doing this for the greater good and I am taking a stand on the issue of assisted suicide', or anything, right? There was somebody covering up responsibility for taking a life ..."
"I understand your view ..."
"If they hadn't done an autopsy would you have been sitting around on your farm all this time?"
"I have no idea."
"... it is important ... all sorts of people do things like this ... were you ever planning to take responsibility publicly, and say 'well now we've had the nice family funeral ... and now I'm going to stand up and tell you actually I killed my daughter? "
"I knew they were going to do an autopsy ..."
Mariam Majedi during this discussion was apparently still brooding about the fact that Latimer had not told his wife that Tracy had died. One wondered how this much belabored point had anything to do with Latimer's chances of re-offending, or why the panelists appeared to have no sense of how Latimer's actions in this regard would help ensure that Laura would never be implicated in the deed.
"My colleague asked you a question ... I don't think I got your response ... she asked why you didn't tell your wife your daughter died in bed ... you didn't answer the question ... you just put [Tracy] in bed ... why didn't you tell [Laura] before she goes and discover her daughter is dead ... why didn't you tell your wife 'let me tell you she's dead, she died in bed' ... what did you gain by not telling her ahead of time ..."
"It was just an emotional thing ... I wasn't into talking about it. It was just a matter of getting through it all ... there were other kids around ... I understand how you can see it that way ... It was just the easiest way for things to unravel," was Latimer's weary response. Again he was being chastised for not doing things in exactly the right way, with exactly the right emotions, by people who had never been in his situation
"You don't feel you're guilty," Majedi continued.
"It was the right thing to do," Latimer said, with a weary, frustrated tone of voice. "The law feels I need to be punished. We need laws and that. But if the laws allow mutilation of a child then someone needs to alter that thinking."
"Sir, I am not talking about the laws ... what I am talking about is you and your wife - the mother of your child ... This is the mother of the same child and you didn't tell her that you killed her, or if you did not want to say that, you did not want to get caught, that she died in bed ... I just don't understand why you didn't talk to your wife about it ..."
"I understand [what you are saying] ... these are just very emotional things ... I didn't have the ability to sit down and talk on a rational level ... We had dealt with her problems for many years ... we both came to the conclusion that she had had enough ... .we were not going to allow them to do that [cut her legs off.]"
Finally we heard from the third panel member, former police officer Ben Andersen. "The leg was not going to be amputated," he corrected.
"No, it would be flail joint. A section of her femurs would have been cut off."
Andersen then went back to the issue of what Latimer might have done if there had not been an autopsy. "How would you have responded?" he asked.
"I can't say," Latimer said.
Andersen asked why Tracy could not have been sent back to the group home she had stayed at for a while, suggesting that that the problem for the Latimers had been the burden of care, rather than the intractable and hopeless suffering of Tracy.
"It was never even a consideration," Latimer responded. "It would do nothing for her ... She was only 37 or 38 pounds when she came back from the group home the previous time ... She doesn't eat well for other people."
The interrogation from the three inquisitors continued with Speck once again taking the lead, with a series of extraordinary comments. "You said you would do it all over again ... you have expressed some views of the law I find to be interesting ... There are all sorts of people who hold moral views that say we'd all be better off if we could go and kill a lot of people ... we don't see it that way ... Why are you different?"
"That I want to kill a lot of people?"
Why do you have the moral authority to take someone else's life?"
*I can only go by what I'd want in my own circumstances ... The laws becomes insignificant when there's something more important ... The laws were less important than Tracy was."
" ... it is not about one person sitting around and saying what they've decided." Speck scolded. And then, apparently not grasping the problem of avoiding a double prosecution, she made some disapproving comment about how Latimer should have planned things out with his wife.
"... she mentioned Kevorkian" he responded. " ... we talked about it ... It wasn't in any way a snap decision. It wasn't as if we both didn't understand [Tracy's] problem ... I wish there was more understanding of her medical problem. Maybe you people have a pretty solid medical background - are you doctors?"
"That's not actually relevant, sir."
"Yeah but it's a big part of it ... the medical aspects of it ..."
"Do you have a medical degree as well?" Speck asked.
I was stunned at the evident sarcasm of this remark. Was this a parole hearing or a lynching? Latimer's question about the Board's medical qualifications was an innocent one. I asked him afterward about his understanding of who the Board members were, and what their qualifications were, and he assumed they were experts of some sort, maybe professional psychologists. Speck's retort, though, asking if Latimer had a medical degree, was made in her full knowledge that he had nothing of the sort.
Latimer was somewhat flummoxed by this and went on to repeat himself about the laws not being as important as Tracy. He went on to say, "this was not something like sitting down and killing this bunch [of people] as you described it."
"So there was an emotional component," she asked.
"Yes there was."
"... one of the things in the file ... You have a great deal of difficulty expressing your emotions," Speck continued. "Is this an accurate portrayal?"
"Yeah, I feel it is a very private situation," he answered, mentioning how difficult this and all the public focus on his life was for him.
"You chose to make it public," Speck said.
"No, I didn't," Latimer answered.
"[You did it] by killing someone," Speck said. "When you took a life you [brought this on]."
"Well, okay ..." he answered wearily.
After some other comments Speck returned to an earlier point. "The psychological assessments of you have said that you are not at general risk of violent behavior ... however they did feel if you were a position where you had responsibility for someone disabled or not able to care for themselves the risk would escalate. When you saw that did you agree with that statement?"
"Well, we spent years with Tracy, from the time of her birth ..."
"Are you suggesting that it would have to be going on for a long time for something like this to happen?" Speck said.
"... it is something that endures for a long time ... I wouldn't walk into a room and see someone in pain and decide they should be gone ... [Tracy's] entire life was about what was best for her."
"So you don't think this would happen again ... is there nothing to suggest that the broader society is at risk?"
"I understand your concerns ... but anytime there is a probability it is still there ..." Latimer said awkwardly but honestly, meaning to say that in such a terrible situation he would do the same thing, something he deeply believed to be right. But his honesty did not serve him well. Then Maryam Majedi went back on the offensive:
"Sir, to continue that same discussion, you told the psychologist that in the same circumstances you would have done the same thing."
"It was the right thing to do."
"And if something like this happens you will do the same thing."
Latimer hesitated. "Well, I mean, something like this is extremely rare."
"And, sir, may I suggest to you that something happening like this is not quite rare. People get involved in horrible car accidents and they get crippled, people get cancer, they get a lot of pain, anything can happen to people around you that you love ... you have somebody you love in pain ...is that what you meant [by similar circumstance]?"
After some interjections by Latimer, Majedi went on:
"I hope your wife lives a long time very healthy, but she is someone very close to you. She can have some medical problems where she suffers pain. My concern is that you tell the psychologists that you would do the same thing - what are you going to do to your wife when she is right beside you in pain? Are you going to pull the plug because she is in pain and you think that it is the right thing to do?"
This reminded me of the Canadian Broadcasting Corporation's Hana Gartner and her infamous question, years earlier, to Latimer:
"Are your other children afraid you might do the same thing to them?"
Like Gartner's question, the comments at this point in the Board interrogation, were blurring the rather large distinction between a man at his wit's end in dealing with twelve years of escalating pain of his daughter, and someone who would do in anyone who became a nuisance.
Latimer attempted to answer this last series of questions but was not particularly effective. He mentioned that his mother was on morphine now, meaning to suggest that he wasn't about to do her in. But the panel took it that here was a case in point.
"So in your mother's case, if the pain killers no longer worked," Ben Andersen asked, "and you and her are in the same room, is she put at risk?"
"I don't think so," Latimer said, in the understated manner that had worked against him throughout the hearing.
"Why not?" Anderson asked.
Latimer tried to explain how Tracy's situation was different, but the Board seemed to have managed, in their own minds at least, to come to the highly unlikely conclusion that Latimer was indeed a significant risk to the public.
The hearing ended a short time later.
SOME OF THOSE DEFENDING THE board decision have claimed that remorse was not the issue in refusing Latimer's parole. For example, a representative of the Downs Syndrome Society recently claimed that parole was turned down "because he could not say he would not kill others in the future."
But this is a disingenuous claim - everyone knows (or should know) that Latimer is no threat to anyone. What he could not say was that what he did was wrong, because he deeply believes that it was not wrong. Interpreting that to mean that re-offending is a real possibility meant that the only way out for Latimer would have been to say that what he did was wrong - a position that, for a person of conscience, necessarily entails remorse. In fact, then, Latimer's critics were demanding remorse.
One must wonder, why did the Board require this of Latimer? Could the answer be found in the nature of these lucrative Board appointments, which come at the pleasure of the Federal party in power? It is no secret that the socially conservative government of Canada, with strong support from the Christian evangelical movement, has no sympathy for the idea of euthanasia or for Robert Latimer. Or was there an undue influence from the disabled lobby which, in its pathological fear that people are out to get the "fragile" among us, wants Latimer to say he did wrong? Or was it simply a matter of incompetence - that they just did not have the skills, intelligence and experience to handle this matter in sensible way?
SURPRISINGLY THE STORY OF THE LENGTHY LEGAL PERSECUTION OF ROBERT LATIMER HAS, FINALLY, TAKEN A GOOD TURN, and we are very proud to have had a hand in this, while working on this article for Humanist Perspectives I contacted John Dixon, a philosopher and long time member of British Columbia Civil Liberties Association. On hearing the details of the hearing and reading this account of what happened there, he approached the Board of the BCCI.A and persuaded them to take on an appeal of the Parole Board's decision, assuming all costs. Latimer accepted the offer of help (I told him he could not get better people to be on his side) and lawyer Jason Gratl, then President of the Association, took on the case.
Appeals of Parole Board decisions go to the Appeals Division of the Board. It is quite unusual for new hearings to be ordered; it has happened 116 times in 2556 appeals over the last five years. Much more rarely, decisions are altered directly by the Appeals Division. That has happened only nine times in the same time period, and most of those were not outright reversals. So the odds, even for a new hearing, did not look good. But the case did. Gratl prepared a brief so compelling that it was difficult to see how any rational person could disagree with it. Gratl's brief is reproduced in full on our web site, www.humanistperspectives.org.
One further cause for hope was that, though appointed like Parole Board members, the Appeal Division differs in that ii consists of people with actual qualifications to assess the reasonableness of the decision being appealed. Currently three of the four members are lawyers, and the fourth is a psychologist.
Just before this magazine was sent off for printing it was announced that Jason Gratl's work had been successful, stunningly so. The original decision was simply reversed, on the grounds that the original panel did not weight the information correctly. Robert Latimer was to be given day parole as soon as possible.
Many Latimer supporters wept tears of relief when they heard the decision. The tears were not just for Latimer himself, but also for the fact that justice, for once in this case, finally prevailed. The law was a ass, for fourteen years, peaking with the antics at the parole hearing. Suddenly, though, the law in Canada looks a little less asinine.
The work on Latimer's behalf is not over. Unless something else changes he will be on parole for the rest of his life. This means, for example, that he could never again leave the country. Many have called for clemency for Latimer, including a number of major newspapers. Letters to politicians may help, and you can add your voice to a petition available on the web site of the Humanist Association of Canada: www.humanists.ca.