Latimer's jailing serves no purpose

The Courts: Saskatchewan farmer sits behind bars -- and officialdom plugs its ears. The officials are wrong

Ian Mulgrew
Vancouver Sun

Saturday, April 26, 2003

CREDIT: Kevin Frayer, Canadian Press

Robert Latimer was convicted of second-degree murder after he killed his severely disabled daughter, who had cerebral palsy.

Robert Latimer, the Saskatchewan farmer jailed by the Supreme Court of Canada for killing his disabled daughter, continues waging a war against the judges who imprisoned him.

It has been more than two years since the January 2001 decision disregarded a jury's wishes and put Latimer behind bars for at least 10 years, but he refuses to accept the judges' verdict.

He has written to the court, complained to the minister of justice and distributed a thick brief to journalists, politicians and anyone else who might help his cause.

Latimer is demanding those who condemned him explain what alternative he had beyond continuing to watch his daughter suffer and be treated like a guinea pig.

In particular, he wants to know what "more effective pain medication" the court thinks he ignored.

"This is very much an issue of cruelty to a helpless child," Latimer said in his latest letter.

"To continue on an ever more aggressive path of medical intervention to sustain Tracy's life would have been exceptionally cruel. We had already participated in over eight years of surgical intervention, and could not participate in mutilating her."

From his prison cell, Latimer has offered a $5,000 reward to anyone who can identify the "unnamed wonder drug" of the judgment.

Latimer believes the court was wrong in its medical opinion and wrong in deciding he could not invoke the rare defence of necessity, which can clear a killer if it is proven he had no choice. So far his pleas have fallen on deaf ears.

In January, an assistant to Justice Minister Martin Cauchon told Latimer there was nothing the minister could add to the high court's ruling.

Last month, Supreme Court of Canada Justice Ian Binnie doused the optimism Latimer's supporters had inferred from an earlier speech delivered by the judge.

Binnie specifically mentioned Latimer's case while talking about the scientific illiteracy of judges and lawyers.

"Was Latimer entitled to a fuller explanation as to what pain control technology was under consideration?" Binnie asked in a March speech at the University of Toronto.

"Ever since that case was decided, he has been writing the court saying, 'Well, you say there was other pain control technology available to control my daughter's symptoms, well, you tell me what it is.' "

Given that Binnie was lamenting legal shortcomings, his comments were read as a suggestion the Latimer decision was an illustration of the problem.

Binnie quickly issued a clarification saying he stood fully behind the ruling: "If I had agreed that our court's unanimous judgment was insufficient in that or any other respect, I would not have signed it."

Neither Binnie nor the court have provided an answer to Latimer's legitimate question except to say he should have maintained a stiff upper lip and "struggled on."

If you ask me, Binnie was dumb for even mentioning Latimer in the context of his speech -- the case is a legal nightmare.

Tracy Latimer was a severely disabled 12-year-old whose life was one of unrelenting pain.

Born with a severe form of cerebral palsy, a quadriplegic with no mobility and the mental age of a four-month-old infant, Tracy suffered five or six epileptic seizures a day.

Her parents believed her quality of life was deteriorating and doctors were considering more and more radical procedures to keep her alive -- installing a permanent feeding tube in her stomach and removing her upper thigh bone to relieve the pressure on her hip, dislocated by metal rods implanted in her spine. The prospect of seeing their daughter mutilated and artificially kept alive was something over which the couple agonized.

In 1993, while his wife and other children went to church, Latimer carried Tracy to a pickup truck and ran a hose from the exhaust pipe into the cab. She died from carbon monoxide poisoning.

At first, Latimer said Tracy died in her sleep but later he confessed.

Self-righteous police and prosecutors in tiny town Sas-katchewan howled bloody murder.

After an excruciating trial, Latimer was convicted of second-degree murder and sentenced to the mandatory life imprisonment with no eligibility for parole for 10 years.

A new trial was ordered, however, when it was revealed the small-minded prosecutors tampered with the jury and stacked it against Latimer.

At the second trial, an honestly chosen jury again convicted Latimer but said his sentence should be mitigated because of the circumstances. The jurors recommended Latimer be jailed for one year -- and that's what the trial judge did.

The Saskatchewan Court of Appeal, though, upped the sentence to the mandatory minimum of life imprisonment without parole for at least 10 years.

The Supreme Court of Canada supported the appellate court and confirmed Latimer's conviction and the mandatory sentence.

I thought the judges were mistaken and nothing so far has changed my mind.

It is clear from the trial record that the jury would not have convicted Latimer had they known he faced at least 10 years in jail. They indicated they would acquit if that was the situation.

But the trial judge misled the jury about their input on sentencing and in doing so eliminated their de facto power to nullify the charge against Latimer.

I suggest that alone should have been enough to send the case back for a third trial. Power flows from the community to the court, not from the court to the community; judges should reflect our values, not substitute theirs for ours.

Unless there are egregious reasons -- say, new exculpatory evidence that comes to light after trial, appeal courts should bow to the will of men and women who have looked in the eye the accused and the accusers, heard their testimony and rendered a verdict.

In this case, they thought Latimer guilty of a crime, but the jury also believed the mandatory sentence called for by the law was an unjust punishment.

But judges on the whole don't like the idea of juries having the power to say the law is an ass and the Supreme Court of Canada dismissed their concerns about Latimer.

So Latimer sits in jail asking why he must serve 10 years in jail -- and officialdom plugs its ears. I think the officials are wrong.

There is no reason for Latimer to be incarcerated under the ordinary sentencing goals of rehabilitation, specific deterrence or protection of the public.

The only objective invoked by the court was the need to denounce murder and I suggest the jury's verdict and a one-year sentence would have delivered that message just as clearly.

Keeping Latimer in jail serves no purpose.

As the court said in an earlier case, "a liberal and humane criminal law cannot hold people to the strict obedience of laws in emergency situations where normal human instincts . . . overwhelmingly impel disobedience . . . such acts are still wrongful, but in the circumstances are excusable. Praise is indeed not bestowed, but pardon is."

I can think of no better case for mercy than Latimer's.

imulgrew@png.canwest.com

604-605-2195

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