Should mercy killing be punishable by imprisonment?

Dahn Batchelor's Opinions

There was no doubt in anyone's mind that 12-year-old Tracy Latimer
was severely handicapped. She suffered from cerebral palsy, a motor function disorder which is usually acquired at birth as a result of lack of oxygen in the brain at birth. The victims of this illness can suffer varying degrees of mental retardation, (although some victims possess normal intelligence) slurred speech, difficulty in seeing and hearing, partial or total loss of use of limbs or involuntary movement of the limbs, loss of or delay in acquiring sphincter control, difficulty in sucking and swallowing, etc.

Tracy suffered from extreme cerebral palsy. She had the mentality of a 3 month-old baby, her severely damaged brain sent chaotic messages to muscles in her limbs and back, causing her terrible pain as the muscles were abnormally tightened. By the time she was 8, her rampaging back muscles had twisted her spine sideways and even after the surgeon cut some tendons to allow the muscles to relax, by the time she was 11, her back curvature was worse than before. After an operation in 1992, her backbone was fused and that seem to help to some degree. She could sit for unlimited periods of time. The ball socket in her hip had meanwhile slipped out of place and that made any movement of her leg extremely painful. She couldn't feed herself, wash or otherwise clean herself in any manner. Her future looked extremely dim.

According to the doctors, eventually she wouldn't suffer the same kind of pain she was suffering during the years before her death but the pain she was suffering from up to the time of her death was agonizing. Robert Latimer concluded that she had suffered enough and that it might be years before the pain finally subsided. He didn't want his daughter to suffer anymore.

The burden placed on the parents of such victims is enormous. The victims practically need 24-hour care, they cannot be left alone, they must be fed, bathed, wiped, dressed, carried about--the list of inconveniences to the long-suffering parents is endless. The older the victim, the greater the burden. Many are embarrassed by it all and tend to shy from strangers and in some cases, even friends. As the child grows, the burden placed on the parents is increased until it almost becomes unbearable.

Iain Benson, a lawyer from B.C. who practices constitutional law, wrote in The Law Times, a legal periodical, " It is easier, far easier to attach a gas hose than carry a child's bent body day after day. It is easier, far easier, to inject a patient with a drug with the intention of killing them, than treat pain and assist in reducing suffering as part of a compassionate community." unquote. I totally concur with his concerns.

In October 1993, 44-year-old Robert Latimer of Saskatchewan, carried his pain-ridden daughter to the cab of his truck and placed her onto the seat and then inserted a hose into the window in which the other end was connected to the exhaust. He was forced to watch his daughter writhing while inhaling the deadly carbon monoxide filling the enclosed space within the cab of his truck. Her father would have obviously suffered terrible anguish (that which cannot be described by anyone except by those who have killed a loved one out of an act of mercy) as he watched his daughter slowly dying before his eyes.

Dying by carbon monoxide is not an easy way to die. The victims suffer from severe headaches and nausea before they lapse into unconsciousness and death, the latter which comes about when the carbon monoxide forces oxygen from the blood cells. Tracy would have lived several minutes at least in that enclosed tomb and perhaps during her final moments of life, wondering why her father was doing this to her.

He then took the lifeless body of his daughter from the cab and placed her in her bed. His wife not being aware what her husband had earlier done to their child, tried to awaken Tracy from what her mother thought was a sound sleep. Then she discovered the horrible truth.

Robert called the police and as to be expected, he was arrested and charged with the 1st degree murder of his daughter.(later reduced to 2nd degree)

His first conviction was set aside because of stupidity on the part of the crown attorney (in the USA, district attorney) with reference to the choosing of a jury and as to be expected, he was tried a second time.

Again he was convicted of 2nd degree murder. In Canada, first degree homicide is murder when the killer premeditates the death of another and Latimer admitted to the police that he had planned to kill his daughter several days before he killed her. The police in sympathy for him, charged him with second degree murder and the crown attorney didn't object. The jury had no other choice but to find him guilty of 2nd degree murder.

But what really perplexed the jury was the kind of sentence he would get. They all knew the law. They knew that in Canada, anyone convicted of 2nd degree murder is automatically sentenced to life imprisonment with eligibility for parole available to the prisoner only after serving a minimum of ten years in prison. They correctly presumed that the judge wouldn't increase the eligibility date to the maximum of 25 years but they didn't like the idea that Latimer would have to serve at least ten years in prison before being released. They had recommended to the judge that Latimer only serve one year in jail even though the law normally didn't give the judge that right to give Latimer only one year in jail.

Then something happened that has never happened before in Canada.
Latimer's lawyer asked the judge to rule that forcing Latimer to serve a minimum term of ten years in prison (even though the law says that he must) is unconstitutional.

Section 12 of the Canadian Charter of Rights states that 'everyone has the right not to be subjected to cruel and unusual punishment.' There can be no doubt that making a person convicted of 2nd degree murder serve a minimum of ten years imprisonment is not unusual since those sentences are awarded many times to people who kill others.

The real issue was whether or not the sentence of a minimum of ten years of imprisonment in Latimer's case constituted cruel punishment.

When someone kills another, it is as a general rule, premeditated with malice towards the victim. But in Latimer's case (as with all cases of mercy killing) he loved his victim and was compassionate towards her and acted in what he believed was her best interest.

Although everyone was sympathetic to Robert Latimer, there were many who felt that he didn't have the right to kill his daughter. Various advocates for the disabled felt that only a disabled person has the right to decide when his or her life should come to an end. I agree with that concept however in Tracy's case, she, having the mentality of a three-month-old baby, was hardly in a position to make that kind of decision for herself. Obviously the doctors wouldn't make that kind or decision for her. If such a decision was to be made, it would have to rest with Tracy's parents.

Robert Latimer took on the responsibility without consulting his wife. That was, in my opinion, a decent thing to do because if his wife had become involved in the decision making, she too could have been charged with and convicted of 2nd degree murder. Robert chose to take upon his own shoulders, the decision, the anguish that accompanies such a deed and the blame and consequences of his action that invariably followed.

Justice Nobel had two enormous tasks before him. He first had to make a determination of whether or not a ten-year minimum sentence in a case like this was unconstitutional. But his second task was even harder. He had to decide if Latimer merited this kind of consideration.

Even if he was to rule that Latimer was to serve a minimum of ten years in prison, he or his lawyer could ask the federal government for its perogative of mercy, that is, a pardon in which he would be released which would reduce his sentence to time served.

After much soul searching, Justice Noble decided that mercy was due to Latimer and he sentenced him to one year in a provincial jail and one year under house arrest in which he is to remain on his farm except when authorized to leave by his probation or parole officer.

In actual fact, he is eligible for parole after he serves a quarter of his time although he may be expected to serve at least six months in jail. His time under house arrest will no doubt be considerably reduced also.

I think what Justice Noble was trying to say was that he understood Latimer's plight but he felt that anyone who makes that kind of decision, such as the one made by Latimer, must be prepared to satisfy society's need for atonement as his or her personal anguish wasn't enough.

The Canadian Minister of Justice, Anne McLellan said the day after the jury found Latimer guilty the second time, "I was struck, as I am sure all of you were, with the intense and very diverse reactions to the situation, the very tragic and difficult situation presented in Latimer. I think Canadians are deeply conflicted on these issues." unquote.

I have had the good fortune of recently meeting a woman (Mrs. Jenny John) a lady in Ontario in her forties who has a daughter who also suffers from cerebral palsy, albeit, her daughter doesn't suffer with the severity that Tracy did. Jenny's daughter is 15 years old and must be cared for as she is unable to care for herself.

Jenny's husband and father of their handicapped child was unable to cope with her handicap so when she was seven, he deserted her and her mother. Jenny remarried but her second husband couldn't accept the fact that he had a step daughter that was (in his own words) an embarrassment so he too deserted the child, his wife and his two girls she bore him. Then, if that wasn't enough for Jenny, her oldest son deserted her and refuses to acknowledge that he has a sister that is so severely handicapped. He refuses to even visit her or his mother and other siblings.

Jenny told me that at one point in her life, she seriously considered killing her daughter. She felt that her daughter was living a meaningless life and that the burden of caring for her handicapped daughter was far greater than she was mentally and emotionally prepared to bear.

But it must be considered that what put Jenny in such a severe state of depression (that invariable brought to the fore, the thought of killing her child)was the loneliness and hopelessness of being deserted by her two husbands, her friends and her oldest son and to make matters worse, no-one was offering her emotional support, not even her church.

But Jenny didn't kill her child and I asked her why. She said, and I will quote from our conversation.

"My daughter was a gift from God to me. I wanted a daughter and I got a daughter. It wasn't my place to decided that God's gift was to die. I love my daughter very much and I could never live with myself if I were to take it upon myself to end my daughter's life simply because she didn't turn out to be like the daughter I expected." unquote

I didn't ask Jenny what she would have done if her daughter suffered from severe pain like Tracy Latimer did because Jenny's daughter doesn't suffer from that kind of pain. The question would have been academic and inappropriate under the circumstances.

Clair Hoy, a noted Canadian columnist, in an article he wrote for The Law Times said in part; "Tracy Latimer is dead. Her father didn't ask her if she wanted to die. He didn't search for options like sending her to an institution, which, while painful, surely is a better solution than death." unquote.

Ian Benson in his article with The Law Times, said in part; "….it is not kindness to kill another person. Kindness, rooted in compassion (from the Latin compassio--to suffer with) is a world away from the selfish acts that is now trendy to call merciful." unquote.

These two issues are uppermost in the minds of everyone who has thought about mercy killing, either as a victim or as a loved one. Advances in medicine have advanced to such a state, that pain can be controlled and become to some degree, bearable. But there are some illnesses that no amount of drugs will ease the agony of the victims. A good example of this is cancer in the lungs. The victim slowly suffocates to death--a fate that has to be one of the most agonizing and terrifying of all. Then there is the paraplegic who is blinded and deafened by an accident to boot and merely lies in bed, oblivious of everything around him, 24 hours a day, year after year with nothing left in his or mind but thoughts of the past and no one really caring whether he lives or dies.

Can anyone truly argue that such victims have to continue to live the rest of their lives like that? How does anyone rationalize that kind of existence? To quote a cliché, "It isn't prolonging life--it's prolonging death."

In one country in Europe, the doctors are permitted to hand a fatal pill to a patient and let the patient end his own life. In the USA, a doctor helps
severely ill patients end their own lives. Some doctors will indirectly let a patient end his or her own life by placing three pills on their night table and tell them to take a pill if the pain become unbearable. The doctors warn them however not to take three at one time as the pills will kill them. The doctors know that the patients will take all three at once so that their life and agony will finally end.

But in situations like this, the victims of these illnesses have the choice and the ability to exercise their choice.

What do we do with those who are unable to bring about their own deaths or worse yet, don't even understand what is happening to them, because of their mental handicaps?

Perhaps in the next millenium, there will come a time when a panel of doctors and judges will make that decision for them but until then, parents are making the decisions for their children and in some cases, children are making that decision for their parents and in other cases, spouses are doing the same for their spouses.

The complexities of issues surrounding capital punishment and abortion pale when compared with euthanasia. Until these issues are addressed, we will continue to have mercy killing at its worst--that is, victims or their loved ones doing it themselves--some by stuffing kleenex down their own throats so that they will suffocate to death, others who will place pillows over the faces of their loved ones so that they too will suffocate--and of course, placing loved ones in the cab of trucks so that they can die of carbon monoxide--the list of methods is endless.

In summation, I would like to quote from a paper I wrote that was published in November 1973 in Modern Medicine of Canada, a medical journal (and also published in other medical journals around the world) My quote sums up what my feelings are about mercy killing and it is something that must be considered by anyone, be they a victim, a loved one forced to resort to mercy killing, and more importantly, by those in the medical profession that are aware of the problem and also the judiciary who may some day have to rule on it.

"…….study the case of 1927 which took place in the United States when a man who, after watching his little daughter dying of tuberculosis and gangrene of the face, heard her screaming, months on end, driving him mad, took the pitiful creature into his bathroom and drowned her. The jury returned a verdict of not guilty, knowing that he acted out of remorse and that his act was a humane act. They knew he would suffer forever, never be able to block out of his mind the sight of his little girl, grasping his arms, and not making any attempts to fight the death which was going to end her misery. Justice Branson at his trial said; 'It is a matter which gives food for thought when one comes to consider that, had this poor child been an animal instead of a human being, so far from there being anything blameworthy in the man's action in putting an end to its suffering, he would actually have been liable to punishment if he had not done so.'