Latimer Convicted, Again (Nov97 Updates)

Robert Latimer watches in detached amusement as a kitten plays with his shoelaces. It is the day after a second jury has found him guilty of second-degree murder, and he is relaxing with half a dozen relatives on the deck in front of his modest farmhouse in Wilkie, Sask. Parked across the tidy yard is the half-ton Chevy pickup, the one he filled with deadly carbon monoxide fumes to end the life of his severely disabled 12-year-old daughter, Tracy, on Oct. 24, 1993. Although it is an unseasonably mild November afternoon, he makes sure his cousin Don Danbrook, a quadriplegic who travelled from British Columbia to show his support, is properly wrapped in a sleeping bag against the fall air. "Trials are terrible things to endure," says Latimer. "We were hoping for better - we were hoping for an acquittal." He worries about his wife, Laura, 42, and their three children, Brian, 14, Lindsay, 12, and Lee, 4. "It was very hard on Laura," says the 44-year-old farmer. "The kids are having some difficulties today I'm sure after yesterday's verdict. Lindsay's been pretty good, but Brian's hyper. It will take him a while to calm down." And then, his father may be in jail. "It'll be distressing if I get sent off to prison in a week or two - I just want to stay out of prison."

Latimer may not be able to escape imprisonment. In a courtroom in Battleford, 35 km north of Wilkie, 12 jurors found him guilty last week of second-degree murder. "It's a sad day," says defence lawyer Mark Brayford, who also represented Latimer in his original trial. That conviction was overturned by the Supreme Court of Canada because police, following Crown orders, had improperly questioned potential jurors about their attitudes towards mercy killing. "Bob and Laura are such nice people," adds Brayford. "I don't think anybody can argue that he didn't act out of compassion." With a sentencing hearing scheduled for this week, it is "premature" to consider an appeal, he says.

The lawyer has applied for a special constitutional exemption from the mandatory minimum - an attempt to reduce the period before Latimer is eligible for parole - arguing that the punishment is cruel and unusual. The trial judge, Court of Queen's Bench Justice Ted Noble, will hear the sentencing arguments, and hopes to decide within 10 days. It was clear the jury found the sentence excessive. Before considering their verdict, the jurors had asked Noble what the sentence would be, but he replied that he could not tell them. After the guilty verdict was announced in court, several jurors were clearly shocked to learn it meant a life sentence with no access to parole for at least 10 years. Some gasped and covered their mouths with their hands, and two began to cry. The jury then made an unusual - and likely unenforceable - recommendation: that Latimer be considered for parole after just a year.

While he may feel relatively isolated on his 1,280-acre canola and wheat farm, Latimer is at the centre of an emotional public debate that is addressing thorny ethical and philosophical questions about the fairness of the Canadian legal system, the value of a human life, the meaning of pain and suffering, and the morality of mercy killing. Is Latimer a merciful father? A cold-blooded murderer? "Canadians are feeling ambiguous," says University of Manitoba ethicist Arthur Schafer. "Latimer was in a cruel moral dilemma - there was no way he could be a loving father and obey the law. The jury was in a dilemma because Latimer was charged with an offence for which there is no discretion." But Schafer, like many Canadians, gives Latimer the benefit of the doubt. "They are sending a loving man and a decent father to spend the next 10 years of his life living in a cage which will destroy him, his family and farm," states the ethicist. "But if pain really can't be relieved in any other way, killing can sometimes be an act of love."

But many disabled rights activists see it another way entirely. They are furious that the legal system would even consider leniency for Latimer. "What that says is that it's all right to kill your child with a disability because she may encounter some discomfort," says Pat Danforth, a spokesman for the Council of Canadians with Disabilities. Alarmed by the perceived threat to people with disabilities, the organization mounted a national campaign after Latimer's first trial. "Afraid for our lives" reads a headline on one of the group's newsletters titled Latimer Watch. "One of our children is dead" says another story that discusses the implications of Tracy's death. Although many advocates for the disabled felt relieved after last week's guilty verdict, some believe Latimer is getting off too easily. Julian Bodner, a Saskatoon lawyer with cerebral palsy, says he should have faced an even more serious charge. "It's almost a mockery," rails Bodner. "It's the O.J. case of Canada - given the confession, and its validity, this should be first-degree murder."

But many people sympathize with Latimer. "Public support has been fantastic," he says. "It's starting again now. There have been a few calls and a few letters. We haven't opened them yet." Some envelopes will likely contain money. Earlier contributions reached $90,000, funds that helped defray Latimer's mounting legal costs. Friends and family have rallied around. "These disabled rights activists, I'm sure they mean well," says Latimer's cousin Danbrook, 39, who steers his wheelchair with his mouth. "They think it's going to be open season on the disabled, but I don't see it, and I'm involved in disabled rights, too."

Some experts argue that Canada's legal system has fallen behind the new social reality created by advances in medicine that prolong lives, sometimes beyond what many consider reasonable. "The law is not equipped to deal with this kind of situation," says Bernard Dickens, a University of Toronto lawyer and ethicist. "Some who represent disabled people may be quite comforted by [Latimer's] conviction," he observes. "Other people will think it is wrong that the law does not draw a distinction between the intention of a Clifford Olson and misguided compassion on the part of Robert Latimer."

Proponents of euthanasia say that, until proper legal and social supports are in place, many people, like Latimer, have to take the law into their own hands. "This law is being written unofficially in emergency rooms and intensive care wards every night," says Ruth von Fuchs, a member of the Right to Die Society in Toronto. Von Fuchs views Tracy's death as part of a "continuum" that begins with brain-damaged infants, some so severely handicapped that doctors quietly remove life support within hours of birth. It is unfortunate, she adds, that because mercy killing has been "criminalized," Latimer felt he had to act alone, without the help of a social worker or medical expert. Von Fuchs, and other members of the euthanasia movement, is calling for a change in attitude to mercy killing. "In our society, we forbid people to give up," she argues. "We say, 'Never say die,' but sometimes you have to stand back and realize that really is a cliché. We cannot fix everyone every time forever."

Last week, in one of the most poignant moments of her husband's trial, Laura Latimer told the court how she came to that conclusion on Oct. 12, 1993, during an appointment with an orthopedic surgeon. The doctor recommended the removal of the child's right thigh bone - an operation that would ease her pain, but would leave her leg hanging from her tiny, twisted body. "When she told me, I was stunned," Latimer recalled. "I started crying and I couldn't stop. Now they're going to start mutilating my little girl. It just seemed like something you wouldn't do to your pet." Her husband, she added, was "horrified" when she broke the news that night. "We held each other," she told the court, her voice breaking. "We cried. I said to him, 'It would be better for Tracy if she died.' I knew I didn't have the courage to do it. But I wished for it for her." She felt relieved when, 12 days later, she arrived home from church to find Tracy dead in bed. "I was so happy for her," she recalled. "That was the best thing for Tracy, the best thing that happened to her."

Throughout the emotional testimony, the violent hacking and gagging sounds of Shivawn Wolfe, a severely disabled 13-year-old, frequently distracted spectators and jurors. The wheelchair-bound teenager was a vivid reminder of Tracy - a point her mother, Rita Wolfe, and other advocates for the disabled who attended the trial intended. During a break in the trial, she challenged reporters to understand her point of view. "Do you know what it's like to hear that killing your child is defined as an act of love when love is what it takes to wake up with new energy every morning to give care and comfort to a child who is absolutely dependent on her parents?" Wolfe asked. "What happened to Tracy Latimer was not an act of love," she added. "She was killed the day the love ran out. It's time these barnyard ethics are put to a stop."

Pain - and how it can be controlled - was a central issue at Latimer's trial. Crown prosecutor Eric Neufeld called 17 witnesses in his attempt to show that Tracy experienced no more pain than many other children with disabilities. He also presented a journal in which Laura Latimer frequently described her daughter in positive terms. On Oct. 18 - six days before she inhaled the fumes in her father's pickup truck - Tracy had "eaten well" and was "quite cheerful," her mother wrote. "You will not find she was in constant pain or that she had no joy in her last year," Neufeld told the jury. "Pain is a condition of life, not a reason for death. Must a person like Tracy die because another person cannot bear to watch her fight?"

But in his final address to the jury, Brayford argued that Latimer had no choice but to kill Tracy to alleviate her pain and suffering. The court heard that Tracy could take nothing stronger than regular Tylenol for her pain because other drugs interfered with her anti-seizure medication, repressed her breathing, and limited her already poor gag reflex, increasing the risk of her choking to death. "Every single surgery elevated Tracy's pain one step higher," said Brayford. "Bob Latimer honestly felt he had no option - that what he did was out of love. We're not asking you to change the law to allow mercy killing. I simply ask you to find Robert Latimer not guilty." Neufeld countered that it did not matter if Latimer acted out of love or compassion. "If you find he caused her death by carbon monoxide poisoning - and he meant to do it - the only verdict you can return is second-degree murder," the prosecutor said.

Noble's instructions to the jurors were stark. He gave them two options: to find Latimer guilty of second-degree murder or to acquit him. "If you're sure the accused committed the offence, you should convict," Noble said. And the only possible conviction is second-degree murder, he added. The lesser crime of manslaughter was not a option, he said, because Latimer clearly acted with intent.

Four hours later, Latimer put out his cigarette outside the Battleford courthouse and plodded up the steps to hear the verdict. Aging floorboards creaked as 40 or so spectators - loyal friends and relatives as well as angry advocates for the disabled - hurried into the same dome-ceilinged, oak-trimmed room. The jurors - seven women and five men - filed back into the courtroom, purposefully avoiding eye contact with Latimer, who sat, in jeans and a black nylon windbreaker, hunched forward in the prisoner's box. After a roll call, the tall dark-haired jury foreman stood and, with the single word - "Guilty" - broke the electric silence. Laura Latimer immediately burst from her seat behind the prisoner's box, slammed her hand against a railing, screaming: "No! No, no, no!" Her husband, more subdued, rose and embraced his wife. "It's OK," he said. "It's OK."

Instructed by the judge to retire and return with a parole-eligibility recommendation between 10 and 25 years, the jurors filed out of the courtroom. Twenty minutes later, they returned with their defiant recommendation: that Latimer be eligible after one year. "It's not a nice predicament we were in," commented one male juror from North Battleford after the trial. "We had to do what we had to do. We had no options." Latimer, freed on bail, was visibly shaken as he left the courthouse. "I thought I'd get at least one vote," he said. "But I guess not."

Latimer still cannot talk about his feelings that Sunday morning four years ago when he trudged through the snow, cradling his daughter and placed her in the cab of the Chevy, watching through the window for seven minutes until she died. "It was very emotional," says the taciturn farmer. "I don't really feel like discussing it." Almost no one, he contends, can grasp the extent of Tracy's misery. "I don't believe the jury had a good enough idea of just what Tracy's problems were," he says. "People think she was a happy little girl. I cannot understand these people." Why not institutionalize her? "That wouldn't have done her any good," insists Latimer. "We put her in a group home and she lost a sixth of her body weight."

Latimer tries not to contemplate the future - what will happen to his family, who will tend the farm. "I haven't really thought about it too much," he admits. "You just try to put those things out of your mind." But later, Laura, who rarely speaks to reporters, vents her annoyance at the question. "Bob might go to jail," she snaps. "The farm is the last thing on our minds. I'm more worried about my husband than the stupid farm."

Maclean's November 17, 1997