Knowing that everything Robert Latimer said about the child he murdered was false, the Supreme Court sent him to jail  

by Shafer Parker

For the past seven years northern Saskatchewan farmer Robert Latimer has argued that he was not being treated fairly by Canada's justice system. But his accusations reached a new zenith last month when he accused the Supreme Court of Canada (SCC) of being "twisted" and devoid of "understanding" after the court upheld by a vote of 7-0 his second-degree murder conviction in the death of his 12-year-old daughter Tracy in October 1993. Latimer was especially angry that the court rejected his argument that the Criminal Code's mandatory minimum life sentence with no parole for 10 years for anyone convicted of second-degree murder amounted to a violation of his Charter protection against cruel and unusual punishment.

Latimer's dissatisfaction with the justice system stems in part from his having undergone two separate jury trials, both of which ended in guilty verdicts that were appealed to the Supreme Court. The highest court threw out his first conviction and ordered a new trial when it was learned prosecutors had questioned potential jurors about their views on mercy killing.

The SCC's final ruling holds that no "aspect of the particular circumstances in this case of the offender diminishes the degree of criminal responsibility borne by Mr. Latimer." Nonetheless, he still insisted that he had acted properly when, on a Sunday morning while wife Laura and his three other children were in church, he propped up Tracy, who from birth had suffered from cerebral palsy, behind the wheel of his pickup truck, and piped in exhaust until she was dead. "This is not a crime," he told reporters after the Supreme Court's decision was released. "Almost everything that's happened have been things that ordinary humans would do."

In a unanimous opinion (Justice Michel Bastarache excused himself because he has suffered the deaths of two disabled children), the justices on the Supreme Court rejected Latimer's attempt to employ the defence of necessity, noting that "the accused did not himself face any peril and Tracy's ongoing pain did not constitute an emergency." Nor were the justices moved by Latimer's belief "that further surgery amounted to imminent peril, particularly when better pain management was available." Tracy was scheduled for surgery to relieve the pain in her dislocated hip the day following her murder.

Beaumont, Alta., resident and disabled persons advocate Mark Pickup, who suffers from multiple sclerosis himself, says that Latimer should have no beef with how the media has portrayed him. Most of the reporting of the case, he says, emphasized his descriptions of Tracy's pain and suffering, ignoring evidence of the immense enjoyment she got out of life. One study of 80 Latimer-related newspaper headlines, for instance, showed that only 25 had mentioned or alluded to Tracy at all, and only three referred to her without some negative qualifier. Perhaps as a result, a 1999 Angus-Reid poll showed that 73% of Canadians believed that Tracy suffered constantly from unbearable pain.

Mr. Pickup says the media presented the public with a caricature of the case jurors in both trials actually heard. He points out that although Latimer was lauded by his wife as a "100% honest man," court testimony showed he tried to hide his role in Tracy's death, initially stating to police that she had died in her sleep. He cut up and burned the hose that had carried exhaust gases into the truck cab, and when he learned that police investigators were planning an autopsy he insisted she be cremated instead. He confessed to killing his daughter only when police informed him that Tracy's blood possessed lethal levels of carbon monoxide.

Also unreported was Latimer's fear of medical procedures-in court he was described by defence lawyer Mark Brayford as "a little bit phobic about the medical profession." Latimer was more than a little phobic. His wife Laura admitted on the stand that he "was very squeamish about medical matters; he was afraid of blood, afraid of needles, afraid of anything medical...anything to do with women's health....he used to say [vaccination] was cruel."

"Even a judge got involved in promoting a skewed version of Latimer," Mr. Pickup says. He notes that after Latimer's first visit to the Saskatchewan Court of Appeal in 1995, Chief Justice E.D. Bayda wrote that the defendant was "typical salt of the earth . . . a devoted family man . . . loving, caring, nurturing." But Mr. Justice Bayda was as aware as anyone that Latimer had a dark side. He had either forgotten or was deliberately ignoring the fact that in 1974 he himself had presided over a trial in which a jury in Battleford, Sask., had convicted the then 21-year-old Latimer, along with another young man, in the rape of a 15-year-old girl in Latimer's home town of Wilkie on September 8, 1973.

Latimer's supporters can claim that Tracy's death was his first brush with the law only because the rape case was overturned on a technicality regarding the judge's handling of the case. A retrial was ordered, but the Crown declined to prosecute.

(Note from CHN: For more information on Latimer's rape charge see CHN Digest Online: Vol. 1 No.3 January 11, 1996 "Commentary on the Tracy Latimer murder - Who is the real Robert Latimer.")

In court Tracy's mother deliberately misrepresented her daughter's condition during her last year of life. During Latimer's second trial she stated under oath that Tracy's back surgery (in which steel rods were inserted to straighten her spine) had left her "in a lot of pain. She used to be a happy little girl, and she'd turned into someone who just sat slumped, just waiting to be moved. She was-she was very unhappy . . . Once in a while she would kind of sort of bat at a toy, but . . . she was miserable, and it was getting-it was getting harder and harder to even have her comfortable."

Actually, Tracy enjoyed her last year, and Laura's own testimony proved it. Under direct testimony she had repeatedly stated that after Tracy's back surgery she could no longer stand being taken out of doors, or for a car ride. But under cross-examination Mrs. Latimer admitted that less than a month after the surgery Tracy was riding the bus to the developmental centre in Wilkie five days a week, 45 minutes each way, right up until her last weekend. Moreover, Laura admitted in court that Tracy's surgery had taken so much pressure off her abdomen that for the first time in years she could breathe easily and digest her food properly.

Contrary to the Latimers' declarations that in Tracy's last year she was little more than a pain-wracked vegetable, crown prosecutor Eric Neufeld demonstrated that assessments by therapists showed the little girl obviously enjoyed music; she had a pull-switch on the canopy of her chair that would activate toys, and if a caregiver got too close, she would grab his or her glasses with her one useful hand and smile broadly. She also smiled while playing a clapping game with her peers and would try to start again after others had grown tired.

But the greatest contradiction to the parents' propaganda came from the caregivers' communications book that was permanently attached to Tracy's wheelchair. The entries made by Mrs. Latimer, which she reluctantly read out in court (she had to be prompted repeatedly to speak up), reveal that in the last months of her life, Tracy was doing better than ever.

Numerous entries record Tracy eating and sleeping well, and there are frequent descriptions of her as a "happy girl." She was "all smiles" when her cousins came for a visit. And when her younger sister Lindsay invited friends for a sleepover, she was fully involved in their hijinks. "Tracy was the worst girl," her mother wrote, "up at 10 to seven, laughing and vocalizing. She was really good the rest of the day."

Tracy loved to let her sister paint her fingernails, and although reported by her parents to have the mental abilities of a four-month-old whose actions were entirely random, Mrs. Latimer wrote in the communications book that when offered several colour options, she chose the red fingernail polish "as usual." 

The communications book also directly contradicts the Latimers' statement that Tracy could no longer enjoy the outdoors after her back surgery. After a May 23, 1993, picnic, which lasted all afternoon, Mrs. Latimer had written, "[Tracy] seemed tickled with the outing, ate a very good supper, especially enjoyed lemon pie for desert."

Despite Latimer's apparent popularity, most commentators applauded the Supreme Court's ruling. In a guest editorial on CBC radio, University of Saskatchewan law professor Donna Greschner congratulated the court for recognizing that laws should only be changed after "a full and proper debate" in Parliament. "Applying the law in this case was the morally right thing to do," Ms. Greschner added, since Latimer's actions met the definition of first-degree murder.

"The disabled are pressed on all sides by those who assert that their lives are of lesser worth than others," wrote lawyer Iain Benson, executive director for the Ottawa-based Centre For Cultural Renewal, in a review of the ruling. "To grant Robert Latimer a lesser sentence [would be] to agree that the life of Tracy Latimer was of such a nature that it was not of any value to her. To pardon Mr. Latimer while he maintains that his choice was the right one, the moral one, would weaken our collective grasp of the inviolability of life and the equal dignity of the disabled."

Cheryl Eckstein, president of British Columbia's Compassionate Healthcare Network, says the country's collective grasp is already too weak to comfort the disabled. She points out that at least seven other mercy killings have been committed in Canada since Latimer killed Tracy, none of which has resulted in any jail time. Nor is she encouraged by the hundreds who came out in force last month to protest Latimer's imprisonment. Even politicians seem to be on Latimer's side, she says, noting that in 1995 a Senate report on euthanasia recommended that a lesser charge be added to the Criminal Code for "compassionate murder."

But determining exactly where the federal Liberal government stands has been problematic. Federal Justice Minister Anne McLellan was reported in the Nov. 7, 1997, issue of the Edmonton Journal to be considering changing Canada's Criminal Code to permit lenient sentences for second-degree murder in "exceptional circumstances," but Department of Justice communications officer Wendy Sailman now insists the minister would never have spoken on the issue because the Latimer case was then before the courts. Justice lawyers did oppose Latimer's last appeal to the Supreme Court, but Ms. Eckstein says Minister McLellan's refusal to condemn the 1995 Senate report, or to even appear before further Senate hearings on euthanasia last year, gives her little hope.

Meanwhile, Latimer has settled quickly into prison at the Saskatoon correctional centre, telling reporters that he mostly just sleeps and reads, and that prison life feels like "hibernation." He said he does not plan to ask the government to grant him mercy for at least a year, and he expressed gratitude for the thousands who have signed petitions to pressure the government into letting him go.

"With so many people supporting Latimer, it's a scary time to be disabled in Canada," says Mr. Pickup. He expects the political climate will only get worse as long as Canadians are taught to put personal interests above all other concerns. "What Latimer did to Tracy was all about his needs," he says. "He wanted her out of his misery."

The Compassionate Healthcare Network wishes to thank THE REPORT MAGAZINE for use of "Ten years minimum"

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