COVER

WHAT WOULD YOU DO?

In Saskatchewan, a wrenching verdict of murder reignites a longsimmering debate about mercy killing

D’ARCY JENISH,TOM FENNELL November 28 1994
COVER

WHAT WOULD YOU DO?

In Saskatchewan, a wrenching verdict of murder reignites a longsimmering debate about mercy killing

D’ARCY JENISH,TOM FENNELL November 28 1994

WHAT WOULD YOU DO?

COVER

In Saskatchewan, a wrenching verdict of murder reignites a longsimmering debate about mercy killing

D’ARCY JENISH

Among his friends and neighbors in Wilkie, Sask., 41-year-old Robert Latimer was considered a typical Prairie farmer. Hardworking, cleanliving and self-reliant, he would repair his vehicles or replace the bam roof himself rather than hire someone. At the local grain elevators, where he sold the wheat grown on his 1,000acre farm 170 km west of Saskatoon, he was known as “Laddie” and viewed more as a friend than a customer. But last week, in a courtroom in Battleford, a half-hour drive up Highway 29, another group of his peers—an 11-member jury—passed a harsh judgment on Latimer. They found him guilty of second-degree murder in the October, 1993, mercy killing of his 12-yearold daughter, Tracy, who was severely mentally and physically disabled by cerebral palsy. That verdict, and the life sentence imposed by Justice Ross Wimmer—with no parole for 10 years—shocked Latimer’s friends and neighbors and reignited a long-simmering debate about the ethics of euthanasia in Canadian society.

The facts in the Latimer case were never in dispute—he confessed the crime to police. But his motive—compassion for a child in constant pain—turned a potentially routine trial into an emotional, highly publicized and controversial event It occurred, coincidentally, as a Senate committee was preparing to reconvene public hearings on Nov. 23 in Ottawa on euthanasia and doctor-assisted suicide. The trial attracted the interest of right-to-die organizations, which want the Criminal Code amended so that the terminally ill can legally end their lives. Advocates for the disabled, who generally op-

pose euthanasia, applauded the Latimer verdict as a powerful message that the lives of the disabled must be protected. “I’m sure he had his reasons,” said Lloyd Samson, 44, a volunteer with the Halifax Regional Cerebral Palsy

Association, who is afflicted with the disorder. “But when somebody plays God, it’s scary.”

Many Canadians, however, viewed Latimer as the victim of a law that was too rigid, and a sentence that was too harsh (page 24). He was awaiting a bail hearing, pending an appeal that could go all the way to the Supreme Court. His only other option for leniency would be to apply to Justice Minister Allan Rock, who could grant a conditional pardon on compassionate grounds under a rarely used provision of the Criminal Code. The verdict also led to suggestions, within the legal community and on open-line radio shows, that the law should be amended to give judges some discretion in sentencing people convicted of murder. When questioned in Ottawa last week, Rock said that he opposes the idea. Meanwhile, residents of Wilkie, population 1,500, were bundling up against the wintry weather and rallying around a local family. “I thought he might get a year or two,” said farmer Sherman

Bohse, before heading out into the winds and blowing snow in an old green truck. “This sentence is like using a sledgehammer on a flea.” The Latimer family received dozens of calls from sympathetic people across the country, many offering donations to help cover legal expenses. “A lot of people have sent money, but Bob won’t accept it,” his wife, Laura, told reporters who converged on the family home. “He asked that it be sent back, but he appreciates the moral support.” In an interview with Maclean’s (page 22), she added: “I know I married the right person. It’s awful to go to bed at night when he’s not there. I support my husband. I know what a very loving dad he was to Tracy. This whole thing has brought us closer.”

Others, particularly those who work with the disabled and represent their interests, felt public sympathies were misplaced. “People with disabilities would say that the law was applied appropriately,” said Priti Shah, a staff lawyer with the Winnipeg-based Canadian Disability Rights Council. “People in similar situations to Tracy’s felt

very threatened by the possibility that he would be acquitted. Not to send him to prison would send a horrible message to disabled people that their lives are of no value, that they are meaningless to society.”

Shah also pointed out that the debate over the trial has turned public attention away from another crucial issue facing the physically and mentally disabled—the inadequate and deteriorating government funding for support programs. Some parents, like Saskatchewan mother Brenda Bancescu, who has a 10year-old daughter with severe cerebral palsy, contend that finding good care-givers is difficult in cities like Regina, and next to impossible in rural areas. Michael Burgess, associate professor of bioethics at the University of Calgary, agrees. “With government cutbacks, we are simply transferring the burden of costs from the public purse to private families. We should be asking why we, as a society, are failing to support the disabled and their care-givers.”

But some medical experts contend that Canadians must be prepared to discuss the legal and ethical issues of euthanasia because the Latimer case is just the tip of the iceberg, and he was simply the person who got caught They maintain that passive euthanasia, in which treatment is withheld, is widely practised in Canadian hospitals, usually by medical professionals. “It’s done all the time,” said Alister Browne, an ethicist at the University of British Columbia in Vancouver. “Ventilators are turned off for severely defective newborns, feeding tubes are disconnected, elderly patients are not resuscitated. It’s part of routine medical care.”

Other prominent ethicists contend that Tracy Latimer never should have been kept alive, through repeated surgery and other medical in-

tervention, as long as she was. ‘Tracy would not have been in this situation if people had not used heroic means all along,” said Eike-Henner Huge, an ethicist at the University of Victoria and a former director of ethics and legal affairs for the Canadian Medical Association. “Someone should have stopped along the way and asked, ‘Should we be doing this?’ By keeping her alive to face a declining quality of life, they were committing what ethicists call the ‘injury of continuing existence.’ In the end, the parents faced a situation in which they thought that they had no choice.”

For the past year, while he was free on bail and awaiting trial on a murder charge, Robert Latimer ran his business and participated in the life of his community as he always had. A native of Wilkie, he grew up on the farm that his father, Wilbur, who died in October at age 87, and his mother, Mae, 82, acquired in 1948. The third of four children, Latimer bought the family farm 18 years ago while his siblings moved away to pursue other careers.

Close friends say they had never heard him complain about the stress and pressure involved in raising a severely disabled child amid a growing household. Nor did they detect any signs in the summer and fall of 1993 that Latimer had reached any kind of psychological limit, or was contemplating any drastic actions. “I saw him grouchy, but I don’t think I ever heard him or his wife complain about anything,” Trina Woodrow, a 22-yearold neighbor, told Maclean’s. “They were happy, actually, whenever I was there. It was a good atmosphere.” Woodrow, who has worked as a farm laborer for the couple for the past five years, said that she joined the Latimer household for spring seeding each year and stayed until the end of the fall harvest. She slept in the basement and shared the family meals. Besides Tracy, the Latimers have three other children, Brian, 11, Lindsay, 9, and Lee, 15 months. “I’d get up in the morning and Laura would be running around looking after Tracy, and Bob would be running around after the other kids, getting them ready to go on the school bus,” she said. ‘When the newborn came into the picture, they hardly had time to look at him. It was all Tracy, Tracy, Tracy.”

Tracy suffered from a severe form of cerebral palsy, which is caused by brain damage suffered during gestation or birth. Although she was confined to a wheelchair because she had no use of her arms or legs, she did attend, briefly at least, a developmental program for the disabled at a local school. And she celebrated birthdays with her family, even though she could not talk or communicate. At the time of her death, she was about four feet tall, weighed around 38 lb. and had to wear diapers. “I would come into the house,” recalled Woodrow, “or the other kids would come in after school and say, ‘Hi, Tracy,’ and she would smile. But you didn’t know whether she was smiling at the roof or the walls. She never did laugh.” Meals were an arduous experience. “She couldn’t swallow,” Woodrow said, “and she puked, oh my God, just about every feeding. She just coughed and splattered everywhere. It was try a little more and, if that went down, good. They’d try a little more and back up it would come.” Woodrow’s mother, Audrey, also had vivid recollections of Laura Latimer feeding her daughter. “She’d have a little bit of baby food and a smidgen of milk and it would take 20 minutes to feed her. It would come out as fast as she would force it in. I’ve never seen anybody, a nurse or anyone, do things like they did for her.”

Over the five summers she spent in the Latimer home, Woodrow said that Tracy’s physical condition seemed to deteriorate. “As she grew, she grew crooked. Her hips were crooked and her back was all curved. She was just all gibbled up. She was going for surgery after surgery in Saskatoon. It was horrible. Normally, she slept in a bed, but towards the end they moved her to the couch. They put pillows all around her and tried to comfort her but nothing could. You could see she was still in pain. She made a kind of gurgling noise. It wasn’t a scream and it wasn’t a cry. But it was pretty much constant. Bob and Laura would take turns, but one of them would be with her all night.”

In the summer of 1993, while Laura Latimer was pregnant with their fourth child, the couple placed Tracy in a group home and, during her stay, she lost a considerable amount of weight. At the same time, she dislocated a hip and was scheduled to have another operation in Saskatoon on Nov. 4. But prior to her surgery, Robert Latimer decided that his daughter had suffered enough. On Oct. 24, while his wife and their three younger children attended a Sunday morning church service in Wilkie, Latimer put Tracy in the cab of a pickup truck and left the engine running. Then, with the aid of a series of pipes and

pieces of hose, he filled the cab with carbon monoxide fumes and poisoned his daughter.

Initially, the Latimers told RCMP investigators that their daughter had died in bed. But when the local coroner could not determine the cause of death, he ordered an autopsy, which revealed that Tracy had died of carbon monoxide poisoning. On Nov. 4, the day Tracy was supposed to have had surgery, RCMP Sgt. Bob Conlon and Cpl. Ken Lyons took Latimer to the detachment in Wilkie for questioning, where he confessed to having taken his daughter’s life. Later that day, they took Latimer back to his farm, and he showed them the pipes and hoses he had used to channel the fumes into the cab of the truck. And he explained how his daughter had died peacefully. “She just fell asleep,” he told the officers. “If she had started to cry, I would have taken her out of there. My priority was to put her out of her pain. She was in pain constantly.”

The RCMP officers videotaped Latimer as he walked around the farm showing them where and how the crime occurred. They immediately arrested him on a charge of first-degree murder and about 10 days later released him on bail. Despite the existence of the tape, which became key pieces of evidence at his trial, Latimer pleaded not guilty. Crown prosecutor Randy Kirkham called 16 witnesses, including Latimer’s wife. Defence lawyer Mark Brayford, a highly regarded Saskatoon lawyer, did not call any witnesses, choosing instead to portray Latimer as a loving, compassionate father through his questioning of those who testified for the Crown.

'Not to send him to prison would send a horrible message to disabled people that their lives are of no value' —Priti Shah, staff lawyer with the Winnipeg-based Canadian Disability Rights Council

I thought he might get a year or two. This is like using a sledgehammer on a flea' —Wilkie farmer Sherman Bohse

In his closing arguments, Brayford made an emotional plea for an acquittal. “Robert Latimer was faced with no real options,” Brayford told the jury. “Medical science kept his daughter alive. The situation cried out for action. Bring him a verdict that you can be proud of. If my client has committed any sin against God, God will judge him.” When his turn came, Kirkham urged members of the jury to look at the facts, reminding them that Latimer had planned his crime. “It is not open season on the disabled,” he said. “It is not up to Robert Latimer or anyone else to play God.”

The final word to the jury came from Justice Wimmer. “You cannot just wish the evidence away,” he said. “You cannot let your passion or your feelings stand in the way of reason.” And he outlined the three choices facing them: they could convict on a charge of first-degree murder, on the lesser charge of second-degree murder—which does not involve planning or premeditation—or they could acquit him. After deliberating just over four hours, the jury returned with its verdict. “I still feel I did what was right,” a subdued Latimer told the court as he stood before sentencing. “It’s not a crime to stick a feeding tube in her stomach? It’s not a crime to cut off her leg? I don’t think you people are being human.”

As he passed sentence, Wimmer said what most people in the courtroom and many people across the country felt: “There is no joy in this

for anyone. Criminal law is unremitting when it comes to taking a life.”

With that, Latimer was led out of the courtroom to begin serving his sentence. Outside the Battleford courthouse, a group of reporters and TV cameramen waited in cold blustery weather until his wife, Laura, emerged. “Whatever hell they put him through will not begin to match the hell our little girl went through,” she said tearfully. ‘When Tracy threw up, he would bathe her. He sat with her and rocked her on his knees for hours and hours.” And back in Wilkie, friends and neighbors were shocked by the outcome of the trial. “It’s a sad day,” said Otto Hochbaum, a local farmer. “I believe in the law, but it must have a little compassion. What’s the rest of the family going to do now?”

The tragedy that befell the Latimers captivated an entire country. “From the point of view of the law, no other decision could have been taken,” said Margaret Somerville, director of the

McGill University Centre for Medicine, Ethics and Law in Montreal. “If you look at the man, you can’t help feeling tremendously sorry for him. But you have to look at the girl. She was defenceless. I’m a huge advocate of the relief of pain. It’s criminal to leave people in pain. But the answer is to kill the pain, not the person.”

In fact, some doctors were puzzled by the references to Tracy Latimer’s constant pain. Dr. Daune MacGregor, a neurologist who works almost exclusively with cerebral palsy patients at the Hospital for Sick Children in Toronto, said that, based on her experience, she doesn’t believe that Tracy could have been in pain all the time, even if she had suffered a dislocated hip. She also said that the girl appeared to be unusually thin in photos that appeared in newspapers. ‘We are very aggressive with nutrition,” said MacGregor. ‘We use gastrostomy feedings, with a tube put directly into the stomach. It’s also a super way to administer pain medication. Some parents would refuse them but they are very easy to use.” Other experts who treat cerebral palsy patients note that the parents are often physically exhausted and emotionally drained. Dr. Mervyn Fox, an associate professor of pediatrics at the University of Western Ontario in London, said that many parents in situations similar to the Latimers' have admitted to him that they considered ending the lives of their children. "It's a very common feeling," said Fox. "It's a signal that they need support. Those of us who work with children with cerebral palsy are overwhelmed with a sense of tragedy."

`I'he [.atimer case had other connotations for such organizations as the Toronto-based Dying With Dignity society and the Victoria-based Right To Die Society of Canada. They argue that terminally ill patients, or those who suffer chronic pain, should be legally entitled to end their lives, at a moment of their own choosing, with the help of a physician. In September, the University of Victoria's Kiuge presented a new and more radical proposal to the Senate Special Committee on Euthanasia and Assisted Suicide. He argued that parents and legal guardians should be given the right to take the lives of severely disabled children. Under his proposal, the courts would be able to call witnesses, such as doctors,

nurses or advocates for the disabled, to testify about the condition of the pa tient. If a judge ruled that a person's health had deteriorated to the point where he was being kept alive only to suffer horribly, then a doctor would be allowed to terminate that patient's life. While that may seem like a startling notion, Dying with Dignity's executive director Marilynne Seguin said that some medical professionals are already helping patients end their lives. She said the nurses sometimes put a se verely deformed infant in what she called a "dirty nursery," where sub standard sanitary conditions lead to ía tal infections. "They often die of be nign neglect," said Seguin. "That is more compassionate than keeping them alive."

Seguin said she has seen doctors administer fatal overdoses of pain killers to terminally ill patients. In one recent case, she said, a palliative-care team extended the life of a female cancer patient, who was in acute pain. Family members eventually con vinced the woman's physician to ad minister enough medication to end her life. Afterward, Seguin said, the woman's nine-year-old son was al lowed into the room. "He hopped up on the bed and gave her a hug," re

called Seguin. "He was glad that his mother didn't hurt any more." But most terminally ill Canadians, experts say, simply accept a slow, painful death. And most parents, confronted with a severely disabled child, accept the emotional toil and physical strain. David Perley, a finan cial adviser from Lacombe, Alta., and his wife, Carole, are typical of the parents who persevere. They have a 19-year-old daughter, Nancy, who is severely disabled with cerebral palsy, and they followed the Latimer trial closely because Tracy seemed to be similarly afflicted. Perley said that the crime left him profoundly disturbed. But so did the sentence. "I saw a quick flash of Tracy on TV," he said. "I saw her smile and I thought, `My God, they took that little girl's life.' I felt a righteous indignation. But when the sentence came down, the sickening reality was that it was not justice. Killing is wrong. But the family deserves the right to a father." Soon, other Canadians-a panel of judges on an appeal court-will be wrestling with the same perplexing questions.

TOM FENNELL

SHARON DOYLE DRIEDGER

LUKE FISHER

ART ROBINSON