Latimer's Appeal for the Royal Prerogative of Mercy

By Cloverdale ARPA

Background and introduction

You may be wondering why we are discussing the Latimer issue. It has not really been in the news since the Supreme Court of Canada upheld his life sentence without eligibility for parole for 10 years. It may seem, therefore, that the Latimer issue is a dead one. However, let us not be fooled by the media's silence. The issues surrounding the Latimer case are still very real ones.

Recently, a year after Latimer was locked up, a political watchdog called Lifesite published a story announcing that, as of January 18, 2002, Latimer was eligible to apply for the royal prerogative of mercy and that his lawyers had every intention of doing so. We thought it might be informative to first rehash the details of the Latimer case, then to explore what the royal prerogative of mercy is all about, and finally to discuss our Christian perspective on the matter. It is our hope that this discussion will not only be informative, but that it will also encourage many of us to contact our federal government with respect to the Latimer issue. 

The Details of the Case

While the Latimer case has been extensively reported and commented on, it is difficult to find a source that summarizes the details of the Latimer case without twisting them for the purposes of the writer. The detail offered by the media must be read with a grain of salt. One source that I consulted, an author with a disability herself, lamented the way the media handled the facts. She suggested that most of the media eased people toward the conclusion that Tracy’s life was not worth all that much, especially compared to Mr. Latimer’s life. Mr. Latimer was depicted as a hard-working and honest SK farmer, and a long-suffering father who loved his children. Tracy, on the other hand, was a lifeless disabled girl who could not communicate clearly, much less contribute any joy to the Latimer household. To avoid such media spins on the story, I thought the best source might be the Supreme Court decision, in which the facts are portrayed about as objectively as possible (of course, even these may not be precise, but we have to start somewhere). I quote the following from the judgment. 

I. Facts

The appellant, Robert Latimer, farmed in Wilkie, Saskatchewan. His 12-year-old daughter, Tracy, suffered a severe form of cerebral palsy. She was quadriplegic and her physical condition rendered her immobile. She was bedridden for much of the time. Her condition was a permanent one, caused by neurological damage at the time of her birth. Tracy was said to have the mental capacity of a four-month-old baby, and she could communicate only by means of facial expressions, laughter and crying. She was completely dependent on others for her care. Tracy suffered seizures despite the medication she took. It was thought she experienced a great deal of pain, and the pain could not be reduced by medication since the pain medication conflicted with her anti-epileptic medication and her difficulty in swallowing. Tracy experienced five to six seizures daily. She had to be spoon-fed, and her lack of nutrients caused weight loss.

There was evidence that Tracy could have been fed with a feeding tube into her stomach, an option that would have improved her nutrition and health, and that might also have allowed for more effective pain medication to be administered. The Latimers rejected the feeding-tube option as being intrusive and as representing the first step on a path to preserving Tracy's life artificially.

Tracy had a serious disability, but she was not terminally ill. Her doctors anticipated that she would have to undergo repeated surgeries, her breathing difficulties had increased, but her life was not in its final stages.

Tracy enjoyed music, bonfires, being with her family and the circus. She liked to play music on a radio, which she could use with a special button. Tracy could apparently recognize family members and she would express joy at seeing them. Tracy also loved being rocked gently by her parents.

Tracy underwent numerous surgeries in her short lifetime. In 1990, surgery tried to balance the muscles around her pelvis. In 1992, it was used to reduce the abnormal curvature in her back.

Like the majority of totally involved, quadriparetic children with cerebral palsy, Tracy had developed scoliosis, an abnormal curvature and rotation in the back, necessitating surgery to implant metal rods to support her spine. While it was a successful procedure, further problems developed in Tracy's right hip: it became dislocated and caused her considerable pain.

Tracy was scheduled to undergo further surgery on November 19, 1993. This was to deal with her dislocated hip and, it was hoped, to lessen her constant pain. The procedure involved removing her upper thigh bone, which would leave her lower leg loose without any connecting bone; it would be held in place only by muscle and tissue. The anticipated recovery period for this surgery was one year.

The Latimers were told that this procedure would cause pain, and the doctors involved suggested that further surgery would be required in the future to relieve the pain emanating from various joints in Tracy's body. According to the appellant's wife, Laura Latimer, further surgery was perceived as mutilation. As a result, Robert Latimer formed the view that his daughter's life was not worth living.

In the weeks leading up to Tracy's death, the Latimers looked into the option of placing Tracy in a group home in North Battleford. She had lived there between July and October of 1993, just prior to her death, while her mother was pregnant. The Latimers applied to place Tracy in the home in October, but later concluded they were not interested in permanently placing her in that home at that time.

On October 12, 1993, after learning that the doctors wished to perform this additional surgery, the appellant decided to take his daughter's life. On Sunday, October 24, 1993, while his wife and Tracy's siblings were at church, Robert Latimer carried Tracy to his pickup truck, seated her in the cab, and inserted a hose from the truck's exhaust pipe into the cab. She died from the carbon monoxide.

The police conducted an autopsy and discovered carbon monoxide in her blood. The appellant at first maintained that Tracy simply passed away in her sleep. He later confessed to having taken her life, and gave a statement to the investigating police and partially re-enacted his actions on videotape. Mr. Latimer also told police that he had considered giving Tracy an overdose of Valium, or ‘shooting her in the head’.”

As we all know, the court upheld the life sentence that Robert Latimer received. It stated that "Mr. Latimer perceived his daughter and family to be in a difficult and trying situation. It is apparent from the evidence in this case that he faced challenges of the sort most Canadians can only imagine. His care of his daughter for many years was admirable. His decision to end his daughter's life was an error in judgment. The taking of another life represents the most serious crime in our criminal law."

The Court also upheld the Criminal Code requirement that Latimer not be eligible for parole for ten years. So, as it stands now, Latimer will be in jail for another nine years before he can be paroled. However, the Supreme Court judgment did leave an opening for Latimer to squeeze out of. The Court admitted that though its hands were tied by the Criminal Code, it was still open to Latimer to ask the government to exercise its royal prerogative of mercy (which I will be referring to as the RPM).

What is the RPM?

The RPM dates back to when we were still actively ruled by a monarch. The monarch reserved the right to grant certain remedies to criminals that they thought deserved mercy from the strict consequences of the law. The King or Queen had the power to allow a person to go free even if they committed a crime. The power was usually exercised for one of two reasons:

Reasons of compassion, where the monarch felt that the sentence required under the law did not do justice in the circumstances (example: a criminal who committed a crime in extreme circumstances (ex: cannibalism on a deserted island))
Reasons of wrongful conviction, where further evidence comes to light showing that the person in prison actually did not commit the crime (example: someone else confesses to the crime). .

This power was carried over into our system of government and finds expression in the Criminal Code. The RPM is officially held by the Governor General of Canada, the Monarch's representative, and the Federal Cabinet (our elected government in Ottawa). Of course, the Governor General herself does not have all that much clout, and in reality the power is exercised by the Federal Cabinet. However, even the Cabinet can only exercise the power after receiving the advice of at least one of the Ministers of Federal Parliament. A federal statute gives this advisory function to the Solicitor General, the Honorable Lawrence MacAulay, an elected representative. However, even the honourable Mr. MacAulay does not give advice unilaterally: he will first receive the recommendation of the National Parole Board. It is this body that initially receives an appeal for the RPM.

If the RPM is exercised by the Federal Cabinet, the person to whom it is granted may receive one of three remedies, ranging from a free pardon (meaning that the person is free to go from prison, based on innocence) to a conditional pardon (meaning that the person gets parole earlier than the eligibility date in cases of life sentence) to a remission of fines levied (ie. Not have to pay fine).

In Latimer's case, it is likely that he will apply for a conditional pardon. Rather than have to serve a full ten years before being eligible for parole, he will probably ask for earlier parole. If granted, this would mean he spends less time in jail than the Criminal Code stipulates.

To make his appeal, Latimer would first apply to the National Parole Board. The National Parole Board is directed in its deliberations and investigative functions by a Policy Manual, which states that the RPM is to be granted in truly exceptional circumstances only. It outlines 6 principles:

There must be clear and strong evidence of injustice or undue hardship (e.g. suffering of a mental, physical and/or financial nature that is out of proportion to the nature and the seriousness of the offence).
Each application is strictly examined on its own merits. Consideration is not given to the hardship of anyone else. In the case of Latimer, the Board is only to consider the hardship of Latimer, not that of any other segment of the population.
The applicant must have exhausted all other avenues of appeal (that is, appeals through the courts – in this case, Latimer has been all the way to the top).
The independence of the judiciary shall be respected. (Court decisions will not easily be ignored)
It is intended only for rare cases in which considerations of justice, humanity and compassion override the normal administration of justice.
The decision should not, in any way, increase the penalty for the applicant.
These principles direct the decision of the National Parole Board. What kind of recommendation the NPB will make is anybody's guess, though it seems that the Board rarely recommends the exercise of the RPM . In its Year 2000 report to the House of Commons, it reported that of 25 new requests for the exercise of the RPM, only 2 were granted (available on National Parole Board website).

However, this does not mean that the RPM will not be exercised by the Federal Cabinet. Other considerations may be relevant when the Cabinet’s decision is made. That is the nature of the RPM, as we discussed earlier: it is the right of the Federal Cabinet to decide whether or not to exercise the RPM.

This decision will likely be a highly politicized one, charged with emotion on both sides. Indeed, the politicization has already started. Within the past half year, both sides of the debate have submitted petitions to various members of Parliament. To give a sense of the wide range of opinions circulating, some people who care for physically disabled people feel that granting the RPM to Latimer would cheapen the lives of the disabled. Surprisingly, other caregivers of physically disabled people sympathize with Latimer and understand his actions to be done out of compassion! (Moral of the story to the disabled: choose your caregiver carefully!)

There has also been a debate in the House of Commons on the matter. Though it was ruled a non-votable motion, and as such was not binding on the Solicitor General or the Federal Cabinet, it is interesting to read the debate. Surprisingly, the motion was brought by a New Democrat from Dartmouth, NS. The motion called for the government to: “recognize and uphold, in its treatment of requests for the RPM, the principle that the lives of all Canadians, including the lives of persons with disabilities, must be treated, and be perceived to be treated, equally under the law.” Of special interest to us are comments made by Jason Kenney, Alliance MP for Calgary-Southeast. He looked to the preamble of our Constitution, which proclaims that Canada, though it seems to be hopelessly adrift on moral issues, is “founded upon principles which recognize the supremacy of God and the rule of law.” Regrettably, these voices may not carry all that much weight in the House. A Liberal MP also made some comments on behalf of the governing Liberals, and suggested that whether or not the RPM is exercised should not focus on the larger moral issues, but rather on the individual, Robert Latimer. Hopefully, the Liberals do not take such a narrow view of the matter. They must be called on to consider not only Latimer, but also the broader impact that their decision will have.

What is our position on the matter? Should the government exercise the RPM?

I don't think it's contentious to say that we generally agree that Latimer should serve his full sentence. However, I think it might be useful to have a discussion to clarify exactly why we think so. As a preliminary note, I believe there are three aspects of this issue that need to be addressed. Of course, if we can identify more, that would be great.

1) Justice – do the crime, do the time. In addition to asking that the RPM be exercised, Mr. Latimer’s friends are urging the federal Justice Minister to reconsider the mandatory minimums in the Criminal Code. This would mean that someone like Latimer would not have to serve his ten years before being eligible for parole. Instead, the trial judge would have much greater flexibility in sentencing. For instance, when Latimer first went on trial, the jury found Latimer guilty of second-degree murder and recommended that he be eligible for parole after one year. The trial judge accepted the jury’s findings, and ordered a sentence of less than two years, with one to be spent in the community.

2) Value of human life, regardless of whether it is disabled or not. What message would the exercise of the RPM send to other disabled people, the elderly, those who in human terms contribute little to society? To caregivers? Mr. Latimer’s friends say that the case is not about the killing of a disabled daughter, but the ending of the suffering of a daughter in pain. Canadians seem to accept this argument and largely support Mr. Latimer. However, I wonder how different it would be if Latimer had killed his “able” daughter who suffered daily pain. For instance, if he had killed a daughter who suffered daily migraines and was in constant pain from them.

3) General decline of morality in Canada. Although I don’t want to be a sensationalist, there are some parallels between the situation in modern Canada and that in Nazi Germany: History has shown that the slope to the complete immorality and disregard for human life is a very slippery one. Consider the “progress” of Nazi Germany: when the Nazis first came on the scene, they produced a major movie depicting the story of a husband who take his wife’s life after seeing her suffering. The movie was very popular with the German population, and through it the Nazis gained public support for mercy killing and assisted suicide. This would be the platform that led to the ruthless murder of 250 000 people with mental and physical disabilities. Consider the scary parallels in Canada: in the early nineties, didn’t Sue Rodriguez make the headlines in her desire to receive the help of a doctor in committing suicide? Though the Supreme Court of Canada upheld Canada’s laws against assisted suicide, there was widespread public support for Rodriguez at the time. Now, a few years later, Robert Latimer is making headlines and seems to enjoy a similar widespread support for his actions. Around the time that Latimer’s sentence was upheld, there was a line up of Canadians who volunteered to each serve a month of Latimer’s sentence. Of course, they could never do so, but the mentality was there. Indeed, morality statistics show a greater and greater acceptance of euthanasia as an option to end life. A recent poll (released Feb. 19, 2002) on Canadians and Immorality shows that while 73% of Canadians think Canada is a moral country, only 31% think that doctor-assisted suicide is immoral! Is history repeating itself here?

Follow Up: Robert Latimer’s appeal for clemency

Facts
Mr. Latimer ended the life of his 12 year old disabled daughter Tracy when he decided that her life was not worth living. Latimer was charged with second degree murder in the case, and found guilty. He was given a life sentence with no chance of parole for 10 years.

This sentence was upheld by the Supreme Court of Canada, in a unanimous decision released on January 18, 2001. However, the Court did express some sympathy for Latimer and suggested that while its hands were tied by the requirements in the Criminal Code, it was still open to the federal Cabinet to exercise its royal prerogative of mercy.

The Royal Prerogative of Mercy (RPM)

The RPM is a power of the Governor General and the Federal Cabinet (the governing Liberals). It is exercised on the recommendation of the Solicitor General, who is advised by the National Parole Board. The National Parole Board is restricted in its deliberations by 6 guiding principles:

1. There must be clear and strong evidence of injustice or hardship.
2. Consideration must only be given to the circumstances of the individual, not to the circumstances of anyone else.
3. The applicant must have tried all other avenues of appeal.
4. The decision of the courts shall be respected: there must be very strong grounds to interfere with a court’s decision.
5. The RPM is intended only for cases in which considerations of justice, humanity, and compassion override the normal administration of justice.
6. The decision must not, in any way, increase the penalty for the applicant.
If the RPM is exercised, the applicant can receive a number of possible remedies. In the case of Latimer, he will probably ask for a conditional pardon: though he would remain guilty of the crime, he would not have to serve the minimum 10 years required by the Criminal Code before being eligible for parole.

A Christian Perspective
1. The government must take its duty to do justice seriously (Rom. 13, Ps. 101).
2. All human lives are created by God in His image, and cannot be valued according to human standards (Gen. 1: 26,27, 9:4-7, Ex. 22:21-27).
3. People are called to bear the burdens that God has allowed in their lives in the strength that He provides (Rom. 8:18-27).

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