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Untying the Knot

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Crime and Punishment

The Latimer case underlines hard truths about Canada’s legal system.

Garrett Wilson, Q.C.

Robert Latimer: A Story of Justice and Mercy

Gary Bauslaugh

James Lorimer & Company

184 pages, hardcover

ISBN: 9781552775196

On October 24, 1993, Robert Latimer’s life as a private individual, a farmer, husband and family man quietly living in a rural home near the small town of Wilkie, Saskatchewan, came to an end. He began a new existence that included two trips through the Saskatchewan judicial system, both winding up at the Supreme Court of Canada. Then he endured further public exposure at hearings of panels of the National Parole Board, where his file is still current. Along the way he provoked a national discourse and became the Canadian poster person for mercy killing, or euthanasia. His name brings up 195,000 hits on Google, a lengthy article on Wikipedia and his professionally maintained website. And now a book has been published about his case.

All because on October 24, 1993, Robert Latimer ended the life of his twelve-year-old daughter, Tracy, a victim since birth of cerebral palsy who suffered chronic, severe and unrelenting pain. Only a few dispute that Latimer acted solely in what he thought was Tracy’s best interest, that he had no selfish motive in bringing about the death of his child. Many approved of his action; many condemned it; and all have been vociferous. The controversy he ignited rages still.

Gary Bauslaugh first met Latimer in 2003, ten years into the saga, and two years after the judicial process had been exhausted, when Latimer was serving his life sentence for second-degree murder at the William Head minimum security prison near Victoria. Bauslaugh, then the editor of a periodical called Humanist Perspectives, was first attracted to the mercy-killing aspect of the case, then struck up a friendship with Latimer and followed his progress through his several Parole Board hearings.

Bauslaugh begins with the background of the Latimer family—Robert, 40 years old when the story began in 1993, wife Laura and four children, living on and operating the family grain farm near Wilkie. The oldest child, Tracy, born on November 23, 1980, suffered neurological damage at birth with resultant cerebral palsy that condemned her to permanent unremitting pain and total dependency. Bauslaugh provides a detailed, clinical description of Tracy’s condition and the never-failing loving care that Robert and Laura Latimer bestowed upon their daughter.

Until Tracy’s pain became too much for Robert Latimer. When the doctors recommended more surgery on an already dislocated hip, an option that would involve removing Tracy’s upper thigh bone, Latimer viewed this as mutilation and took matters into his own hands.

On Sunday morning, October 24, 1993, when Laura Latimer and the other three children were attending church, Robert Latimer took Tracy from her bed, placed her in the cab of his pickup truck, ran a hose from the exhaust into the cab and ran the engine for about half an hour, watching the effect on Tracy while he was seated in the truck box. Then he returned the body to the bed, placing it so it would appear she was asleep, and he put his paraphernalia away. Latimer said nothing to his wife, leaving her to discover the body of her dead daughter.

When the police arrived, Latimer took the position that Tracy must have died in her sleep and expressed a wish to have the body cremated. After he was confronted with the results of an autopsy and laboratory examination of a blood sample that exposed death caused by carbon monoxide, he confessed and went so far as to perform, on videotape, a re-enactment for the RCMP. Two or three times he refused the suggestion that he engage legal counsel.

Robert Latimer would not engage in plea bargaining, would plead guilty to nothing and to this day insists upon, and vainly hopes for, complete exoneration.

In recounting all this, Bauslaugh, who openly declares his sympathy for Latimer, inserts suggested explanations for Latimer’s actions, usually speculative, and sometimes not in accordance with his own facts. For instance, he claims  that “Latimer was not legally sophisticated.” Yet earlier he tells us that, in his youth, Latimer “ran into trouble with the law a few times then and received a conviction for impaired driving in 1976. Two years before that, he and a friend were convicted of sexual assault, but that conviction was overturned on appeal.” It would be most unlikely that the appeal was taken without legal assistance.

In truth, while perhaps not “sophisticated,” Latimer had far more experience with police and the criminal justice system than the average citizen and he would have known enough to call a lawyer when the police turned up and wanted to discuss murder.

Although Bauslaugh is not a lawyer and was not present during any of the proceedings, he has done a credible job of summarizing eight years of complex judicial process, working from court transcripts, published decisions and associated material. Latimer was tried on a charge of first-degree murder before a judge and jury at North Battleford in November 1994. He was convicted of second-degree murder and handed the minimum sentence of life imprisonment with no eligibility for parole for ten years.

The case then went to the Saskatchewan Court of Appeal and on to the Supreme Court of Canada. When it came to light that the overzealous Crown prosecutor had improperly canvassed potential jurors as to their beliefs on mercy killing, the Supreme Court set Latimer’s conviction aside and returned the case for a new trial.

The second trial went forward in October 1997, this time on the charge of second-degree murder as selected by the first jury. While the jurors were deliberating, they asked if they could have any input on sentencing. The trial judge properly replied that they were not to concern themselves with sentencing, but added the comment: “It may be that later on, once you have reached a verdict, … we will have some discussion about that.”

When the jury returned with a verdict of guilty and then learned of the minimum sentence of life imprisonment without parole eligibility for ten years, some jury members, as the judge noted in his decision, “were emotionally upset.”

Then the trial judge decided that, in Latimer’s particular circumstances, his Charter right not to be subjected to “cruel and unusual punishment” would be violated by the minimum sentence. He granted a constitutional exemption and sentenced Robert Latimer to one year’s imprisonment and one year of house arrest.

Off again to the Saskatchewan Court of Appeal and the Supreme Court of Canada, where both courts restored the statutory minimum sentence of life imprisonment and no parole eligibility for ten years.

By June 2000, when the Latimer case arrived at the Supreme Court for the second time, it had become nationally notorious. Ignoring the fact that Latimer had been motivated solely by the pain his daughter was enduring, a number of organizations concerned with the disabled mounted the sophism that to condone his actions would be to imperil all members of society suffering from disability. Thirteen such groups were granted intervenor status at the Supreme Court. The governments of Canada and Ontario also appeared. A total of 16 lawyers were before the court on the final appeal.

The defence contended at the Supreme Court that the trial judge, by not telling the jury that conviction meant life imprisonment, deprived them of the opportunity to acquit Latimer, in spite of the law and the evidence and their oath to “a true verdict give.” It was further argued that defence counsel at trial should have been permitted to advise the jury that they might do so.

Such a verdict is called “jury nullification” or a “perverse” verdict. In Canada, it has been most famously applied in the cases of Henry Morgentaler, where three Quebec juries well understood that the doctor had broken the law prohibiting abortion but acquitted him anyway, showing their complete disapproval of the law. In the Latimer case, the Supreme Court held that an accused person has no right to jury nullification, only to a fair trial, which Latimer received.

In dismissing Latimer’s appeal, the Supreme Court took the unusual step of referring to the section in the Criminal Code that provides for the royal prerogative of mercy and pointed out that in the seven years since the offence, Latimer “has undergone two trials and two appeals to the Court of Appeal for Saskatchewan and this Court, with attendant publicity and consequential agony for him and his family.”

It was a clear hint that the Supreme Court thought Robert Latimer might have suffered enough and a suggestion that he seek his freedom from the federal Cabinet, rather than the courts. Latimer has refused to follow this excellent advice.

Gary Bauslaugh attended Latimer’s first parole hearing on December 5, 2007, when day parole was denied. He is very critical of that Parole Board panel, whose members were unduly concerned with Latimer’s lack of remorse and, strangely, the likelihood of his reoffending. Bauslaugh’s criticism is justifiable, it would seem, since that panel’s decision was overturned on appeal, a rare event.

Latimer’s relationship with parole boards since has been one of continuing difficulty and frustration, which Bauslaugh attributes to the board’s bureaucracy. Yet Latimer has refused parole locations near his home, claiming to protect his family from publicity, choosing instead to be placed in Ottawa, and then Victoria. In December 2010, he was finally granted full parole.

The friendship between Latimer and Bauslaugh did not extend to the writing of this book, and Bauslaugh has proceeded without authorization or approval from Robert Latimer. Over several years, Bauslaugh was permitted a number of interviews and friendly conversations, but off limits was anything about Latimer’s personal life or his family. At the suggestion of this book, Latimer was “not interested.” Thus, since Latimer chose not to testify at either of his two trials, we are provided limited insight into the mind of this man who killed his own child.

Bauslaugh is an exponent of euthanasia, whether in the guise of assisted suicide, right to die, mercy killing, compassionate homicide or similar descriptors, and propounds his theory in a chapter aimed at “Latimer’s Critics” and another entitled “Justice and Mercy.” He provides an interesting overview of jurisdictions in North America and Europe that permit “assisted suicide and/or euthanasia.” Missing, however, are practical proposals for the implementation here in Canada of voluntary euthanasia. And Bauslaugh comes up against the same wall as others before him when it comes to “involuntary euthanasia,” the taking of a life without consent, as in the case of Tracy Latimer, who did not consent to die, and could not have provided such consent, or understood the proposal if it had been put to her.

Bauslaugh’s disapproval of the Canadian justice system is evident throughout his account of Latimer’s experience and is forcefully contained in a chapter entitled “How Latimer Was Denied Justice.” Here, however, Bauslaugh’s lack of legal training or comprehension is apparent.

Arguing that jury nullification is, or should be, an accused person’s right and that juries should be told that it is one of their options, he disparages the contrary opinion of the late chief justice Brian Dickson of the Supreme Court of Canada: “But his argument was a feeble one. And, in my view, it was presented in the arrogant and bullying style that too often substitutes for reason in judicial arguments.” Bauslaugh’s opinion is in conflict with Dickson’s well-deserved reputation among Canada’s legal community for clear thinking and eloquence of expression.

When Bauslaugh contends that Latimer should have been charged not with murder but with manslaughter, which does not carry a statutory minimum sentence of imprisonment, he hits upon the nub of the Robert Latimer case. But again he exposes his lack of understanding when he claims that this decision—murder or manslaughter—was a simple act of discretion on the part of the prosecutor who failed in his duty. Bauslaugh is wrong in thinking that prosecutors have an unfettered discretion in deciding what charge should be preferred. They are bound to prefer the charge that is called for by the evidence. And the evidence against Robert Latimer said murder, and nothing else. Here are the relevant provisions of the Criminal Code:

229. Culpable homicide is murder

(a) where the person who causes the death of a human being

(i) means to cause his death…

Murder reduced to manslaughter

232. (1) Culpable homicide that otherwise would be murder may be reduced to manslaughter if the person who committed it did so in the heat of passion caused by sudden provocation.

Some fiction, and a plea of guilty, would have been required to bring Robert Latimer within the manslaughter provision, but it became widely apparent that the public interest would have been well served by such an arrangement, with a likely sentence of 12 to 18 months. This was particularly so as the case was coming up for trial the second time. Bauslaugh interviewed defence counsel only. Had he spoken to the prosecution, as this reviewer did, he would have learned that overtures by the Crown were rebuffed by the defence. As Bauslaugh tells us, Robert Latimer would not engage in plea bargaining, would plead guilty to nothing and to this day insists upon, and vainly hopes for, complete exoneration.

In the end, Bauslaugh admits that the Robert Latimer case played out along inevitable lines: “The Supreme Court and, in fact, all of the courts involved, had little choice but to enforce the law as it is written. A person simply cannot be allowed to make such decisions with impunity.”

For all the controversy the Latimer case generated, it added little improvement to the problem it exposed. The Morgentaler trials effectively ended the law prohibiting abortions (with the aid of the Charter of Rights and Freedoms, 1982). Sue Rodriguez, by defying the Supreme Court and carrying out her assisted suicide, advanced her cause. But Latimer merely elevated the public awareness of the problem of involuntary euthanasia and then slipped into the shadows, leaving no vestige of a solution. The law remains as it was: murder is murder. No new prosecutorial guidelines have come into existence. All we have is the story of one man’s stubborn and futile search for vindication.

Garrett Wilson, a retired Regina lawyer, is the author of four books including Deny, Deny, Deny: The Rise and Fall of Colin Thatcher (James Lorimer, 1985) and the award-winning history Frontier Farewell: The 1870s and the End of the Old West (Canadian Plains Research Centre, 2007).