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The Supreme Court's Mercy in the Latimer Case

The disabled, handicapped and elderly in Canada can now feel more secure. The Supreme Court of Canada showed them respect and mercy on January 18, 2001 when it handed down its decision in the Latimer case, upholding his conviction for killing his 12-year-old handicapped daughter. Perhaps Mr. Latimer's young daughter, Tracy, can now finally rest in peace.

The law serves as a guideline for the conscience and to many, what is legal becomes socially and morally acceptable. The Supreme Court's decision in the Latimer case will serve to remind Canadians that every human life has dignity and worth, and that to destroy human life results in grave consequences.

In its unanimous decision, the Supreme Court of Canada upheld the decision of the Saskatchewan Court of Appeal that sentenced Mr. Latimer to 10 years in jail, with no parole. The court stated in its judgment, "the taking of another life represents the most serious crime in our criminal law." It pointed out that Mr. Latimer had choices other than death for his 12-year-old daughter. It suggested Mr. Latimer could have struggled on with her care, or could have eased Tracy's suffering by using a feeding tube to better deliver nutrition and pain medication, or he could have placed her in a care facility as he had in the past. Instead, Mr. Latimer chose to kill her.

Mr. Latimer had initially considered shooting his daughter, who was handicapped with an extremely severe form of cerebral palsy and was quadriplegic. He discarded that plan and instead, placed her in the cab of his truck, hooked up a hose to the truck's exhaust pipe, fed carbon monoxide into the cab and killed her. Once dead, Mr. Latimer removed his daughter's body from the truck, hid the various bits and pieces of the makeshift death equipment, and put her into her bed. When she was found and police were called, Mr. Latimer claimed that Tracy's death was an accident and that she had passed away in her sleep.

He also stated that he planned to have Tracy cremated. The police, however, insisted on an autopsy. Only when the autopsy revealed that her blood was saturated with carbon monoxide did Mr. Latimer confess. He claimed that he loved his daughter and had killed her as an act of mercy in order to prevent her from having to undergo further surgery and pain.

The Supreme Court of Canada said it could find no reason to believe the sentence of 10 years without parole was too harsh, given that Mr. Latimer had planned the murder, attempted to conceal his actions, and showed a lack of remorse.

It is highly significant that the court, for once, did not use this case to act as social engineers, but, instead, more cautiously handed the issue back to Parliament. The court said:

It is not for the court to pass on the wisdom of Parliament with respect to the gravity of various offences and the range of penalties which may be imposed upon those found guilty of committing the offenses. … Parliament has broad discretion in proscribing conduct as criminal and in determining proper punishment.

Professor Rainer Knopff of the University of Calgary suggested (National Post, January 19, 2001) that the reason for the court's restraint may be due to the fact that it is difficult to know which way the wind is blowing on the euthanasia issue and the Court did not want to become involved in even more controversy.

However, one disturbing statement made by the court in its judgment was that it suggested there were grounds to ask the Cabinet for a pardon or a reduced sentence under S.749 of the Criminal Code, which provides for the Royal Prerogative of Mercy. This section gives the federal Cabinet sweeping powers to exempt or lessen an individual's punishment. Such a decision is made behind closed doors on the basis of a recommendation by two members of the National Parole Board who refer their decision to the Solicitor General. He, in turn, presents the recommendation to the Cabinet. The Cabinet is not bound by the recommendation and may either accept or reject it. Cabinet has awarded 16 conditional pardons (shortening the prison time) in the past 20 years.

Mr. Latimer's lawyer, Edward Greenspan, quickly pounced on the Royal Prerogative of Mercy provision, stating that he will proceed with this request on the basis of the Court's exceptional statement, which included:

Where the courts are unable to provide an appropriate remedy in cases that the executive sees as unjust imprisonment, the executive is permitted to dispense 'mercy,' and order the release of the offender.

Although this section is rarely used, it does not mean that it will not be invoked in this case. Already, a petition is being circulated to this effect, and the Right to Die Advocates and newspaper columnists (e.g., Edward Greenspan in the Globe and Mail, January 23, 2001) are engaged in promoting the "tragedy" of Mr. Latimer's case and demanding that the Royal Prerogative of Mercy be invoked and that the law be amended to allow mercy killings.

Further, the Canadian Civil Liberties Association apparently aghast at the Supreme Court decision, stated through Alan Borovoy, General Counsel for the association as follows:

On January 24, 2001, approximately 150 demonstrators (the CBC of course doubled the number to 300) appeared outside the Saskatoon Constitutional Centre urging the federal government to consider an early release for Mr. Latimer.

The battle is now engaged. The Supreme Court of Canada stated correctly that its judgment in the Latimer case will not be the last word on the issue.

It is crucial, therefore, that the Prerogative of Mercy not be applied in this case. The Cabinet cannot deal with this case in isolation, as it mirrors the value society places on human life and especially that of the disabled in Canada. To permit Mr. Latimer a pardon or a reduced sentence after the case has been given a thorough and fair hearing and numerous appeals during the past seven years, is to place the most vulnerable members of our society in jeopardy. Please write to:

The Right Hon. Jean Chrétien
Prime Minister's Office
80 Wellington Street, 2nd Floor
Ottawa, ON K1A 0A2

Tel: 613.992.4211 / Fax: 613.941.6900

The Hon. Ms. Anne McLellan
Minister of Justice
Justice Building
284 Wellington Street
Ottawa, Ontario K1A 0H8

Tel: 613.992.4621 / Fax: 613.990.7255

The Hon. Lawrence MacAulay
Solicitor General of Canada
Room 556, Confederation Building
House of Commons
Ottawa, Ontario K1A 0A6

Tel: 613.995.9325 / Fax: 613.995.2754

Let them know that it is essential that legal protection be given to all Canadians and that the Prerogative of Mercy provision in the Criminal Code not be applied in the Latimer case.

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