Piling On: The Robert Latimer Case
Piling on. In football there is a penalty for it. After a ball-carrying player is down, any additional tackle or blow is penalized. Sometimes in life, however, it just seems to go on and on, unabated. Such, at least, is what has been happening to Robert Latimer.
Latimer had been entangled in the legal system for about twelve years when I first met him in 2005 in William Head Prison near Victoria. He had been arrested in 1993 for what is generally accepted as a mercy killing of his twelve-year-old daughter Tracy. Tracy had had severe brain damage at birth, giving her the worst form of cerebral palsy, a hopeless, painful and deteriorating condition. After two lengthy trials, the first of which was thrown out because of police misconduct (they screened potential jurors) and going in and out of jail, and after numerous appeals, he was finally was sent to prison in 2000, convicted of second-degree murder, with a ten-year mandatory sentence, and seven years before eligibility for day parole.
However one feels about what Robert Latimer did, one would have to be hard-hearted indeed or ideologically predisposed to condemning him in order not to see the cruelty that has been bestowed upon him.
Perhaps Latimer should not have done what he did; certainly his life would have been better had he not, and Tracy most likely would have died before long anyway. She had already lived longer than most children with her affliction. But her life, by all informed accounts, had become one of terrible and deteriorating agony with no real hope of relief, and Latimer’s action in ending it was pretty clearly an act of love. It was even described as such by the prosecuting attorney in his second trial.
Latimer had been a devoted father, doing whatever he could to help his daughter and his family cope with her terrible disability. When Tracy was scheduled for a fifth operation to try to alleviate the pain (but which would actually increase suffering for some months before perhaps helping a little), the Latimers both came to the agonizing conclusion that Tracy would be better off if her suffering was ended. Robert realized at that point that he had to take action, for Tracy’s sake. And he had to do it alone, without the knowledge of his wife Laura, to protect her from both the agony of the making the fateful decision and any subsequent legal prosecution. It was almost surely a selfless act of mercy: it was done for Tracy.
Latimer’s defense at trial was unfairly handicapped by an earlier Supreme Court ruling that effectively prevented his lawyer from presenting Latimer’s best case – which would have been to appeal to the jury to “nullify” the law, as had been done successfully in the Henry Morgentaler abortion trials. Then, at his second trial, the judge gave a misleading answer to a question from the jury about the length of sentence, indicating that it was negotiable, but not telling them that it was negotiable only beyond the mandatory 10-year minimum sentence.
The distressed jury was stunned by this revelation, which came after they had given their verdict, and they fought to have the sentence reduced to one year. After some deliberation the judge agreed to this, circumventing the mandatory sentence by invoking what is called a “Constitutional Exemption.” Both judge and jury clearly saw this as a tragic case with no criminal intent on the part of the accused, and both preferred that only a token sentence be given. However, this decision was subsequently overturned by the Saskatchewan Court of Appeals, a decision sustained by the Supreme Court.
Robert Latimer spent the next seven years in prison. His first parole hearing, for day parole, was scheduled for December 5, 2007. One would have expected that the Parole Board would easily grant his request – given the recommendations of his judge and jury that he be given only a one-year sentence and given strong personal endorsements by many people, including Saskatchewan’s distinguished Chief Justice Edward D. Bayda. Moreover, the Supreme Court of Canada had written that, “In this case the sentencing principles of rehabilitation, specific deterrence [from re-offending] and protection [of the public] are not [my emphasis] triggered for consideration.” In these circumstances, many expected that the hearing would be a pro-forma affair leading to Latimer’s release.
But I was concerned. So many things had already gone wrong in this case. I applied for and got permission to attend the hearing. Would there now be some sympathy and support for this decent man – whom Chief Justice Bayda had described as “a nurturing, caring, giving, respectful, law-abiding responsible parent”? Instead, all three Parole Board members launched into mean-spirited personal attacks on Latimer, who sat quietly, trying to answer their aggressive questions, absorbing yet another beating. Parole was denied on the absurd grounds that he was a risk to re-offend.
After the hearing I went to see Latimer, expecting to find him devastated. He did not seem to be. “I didn’t expect much,” was all he said about the hearing. He did not plan any appeal, seeming to think the whole thing was hopeless. After that meeting I contacted the BC Civil Liberties Association, which agreed to pay the costs of appeal. In January 2008 a brilliantly written appeal by Vancouver lawyer Jason Gratl resulted in a very rare overturning of a Board’s decision by the Appeals division of the National Parole Board. The case against the decision to deny parole was an overwhelmingly convincing one, and the Appeal Board, consisting mostly of lawyers (unlike the politically-appointed Parole Board itself, none of whom were lawyers), could see that.
Robert Latimer was released on day parole in the spring of 2008. He now resides in a halfway house in Victoria, and has rented an apartment a few kilometers away, where he is allowed to stay on weekends. Given the somewhat unpleasant circumstances at the halfway house – he has a small room in noisy area of town with a lot of drug activity – he leaves early in the morning for his apartment, and then returns late in the evening. During most days he attends electrical contracting classes at Camosun College. He is allowed to visit his family on their farm in Saskatchewan every two months or so.
I visited Latimer in mid-November 2009. He is managing all right and doesn't really complain, but I could see that this routine of returning to the halfway house on week nights was draining on him. He finds it hard to focus on his studies, and though he is passing his exams he is not doing nearly as well as he would like to do.
He asked the Parole Board if he could be allowed to stay in his apartment on week nights and return to the halfway house on weekends – a small concession but one that would mean a lot to him. This was denied. He appealed through a lawyer friend. The appeal was denied as well.
These latest decisions by the Board, like some others in the past, seem gratuitously punitive. What possible harm do they think he might do? Robert Latimer is simply trying to rebuild his life, for himself and his family. He has been dealt so many blows that he is inclined to accept them without much protest. It is, then, up to others of us who are appalled by the fifteen years of shabby treatment he has endured to protest on his behalf.
It is time to stop the piling on.
Gary Bauslaugh is currently completing a book on Robert Latimer. The Wages of Mercy will be published in 2010.