By Paul Tuns
The Interim

On June 14, the Supreme Court of Canada (SCOC) heard oral arguments in the Robert Latimer appeal as his lawyers asked the highest court in the land to absolve the convicted murderer of the mandatory life sentence with no parole for 10 years for the gassing death of his 12-year-old daughter Tracy, in 1993.

The case will have implications on the permissibility of mercy-killing as the SCOC will signal to society whether or not guardians who kill disabled persons in their care should receive lesser sentences.

Before the June 14 hearing, Latimer told the Southam news agency he hopes the SCOC will consider public opinion on the issue. Latimer and his lawyers claim the public supports his release. Latimer’s legal team of Edward Greenspan, Mark Brayford and Marie Henein asked the judges to consider that “the vast majority of Canadians are outraged” at the 10 year sentence.

Another defense Latimer’s lawyers offered was that he loved his daughter “too much.” Tracy Latimer suffered from cerebral palsy and was quadriplegic, unable to speak or feed herself. Latimer claims he was anguished over his daughter’s suffering. In his written submission, Latimer says he chose to “commit suicide for his daughter,” to end her allegedly tortured life and to protect her human dignity.

Jean Echlin, vice-president of the Euthanasia Prevention Coalition of Ontario (EPCO), toldThe Interim that love cannot motivate someone to gas his daughter to death. Describing the twitching Tracy would go through as she was consumed by the fumes and her desperate cries for help, Echlin wonders, “How do you ‘love somebody too much’ and do this to this little girl?”

The hearing will focus on Latimer’s sentence, but the court also agreed to hear an appeal of his conviction. He is depending upon an obscure argument known as the defence of necessity, in which the accused can try to prove he or she had no choice under the circumstances. But as a June 13 National Post editorial noted, Latimer had at least two other choices. “First, according to his confession, he had no intention of having Tracy institutionalized. Second, he and his wife disregarded one doctor’s assurance that ‘in the majority of children [the surgery] is successful in decreasing their pain.'”

David Brown, a Toronto lawyer who argued on behalf of three intervenors – the Evangelical Fellowship of Canada, the Christian Medical and Dental Society, and Physicians for Life – toldThe Interim that he told the Court that all the legal issues must be viewed in context, that the law must protect everyone equally. He urged the Court to consider Tracy’s personhood through the preamble of the Charter and the two foundational principles of our law: the supremacy of God and the rule of law. Brown said both considerations require the dignity of Tracy’s life be respected.

Arguing against Latimer’s claim of necessity, Brown said such a conception of this defence “would be a radical expansion” of its understanding, “where some lives would not be worth living.” He said it is never necessary to kill people with disabilities. Arguing against Latimer’s request for an exemption, Brown said granting it would “signal to society that killing a disabled person is not as serious as killing a ‘normal’ person.” Also, granting such an exemption would be a usurpation of parliamentary prerogatives. Granting an exemption, Brown warned, would effectively allow mercy killing, at least in certain limited circumstances.

Toronto lawyer Hugh Scher, chair of the human rights committee of the Council of Canadians with Disabilities, and legal counsel for EPCO, told The Interim that the law must apply to Latimer as it does to anyone convicted of second-degree murder. An exemption, he said, would be a violation of Tracy’s Charter rights to equal protection under the law. “Disability must not be used as a basis to mitigate in Latimer’s favour,” he said. Doing so would create a two-tier justice system, relegating the disabled to the status of second-class citizens.

That public opinion seems to be in Latimer’s favour worries Scher. He said by focusing on the plight of Latimer and the supposed injustice of his sentence, some Canadians are losing sight of the fact that Tracy was the victim. He wonders if society would support the “mercy killing” of a otherwise healthy person who was experiencing horrendous pain. “Would we kill her?” Scher asked. “Of course not. It is not about the pain, it is about her disability.”

Latimer’s reason for the murder, in his own words, was that surgery “was more complicated than what we had expected so we just couldn’t see another operation. She’d be confined to a cast for I don’t know what the time was so I felt the best thing for her was that she be put out of pain.” But EPCO’s Echlin, a palliative care nurse, said there was no reason for Tracy to experience unremitting suffering. She said Tracy’s pain and symptoms were treatable and that Greenspan’s assertion that Tracy’s anti-convulsant drugs were incompatible with pain relief medication is simply not true.