Tracy Latimer was born in North Battleford, Saskatchewan, in 1980. She died painlessly

at the hands of her father from carbon monoxide poisoning on October 24, 1993. These

are the obituary facts. Behind them lies a story of two persons, one of whom, Tracy, was

victimized by her biology, the other, Robert, her father, who was punished by a judicial

system for loving his daughter more than he feared it.

A damaged brain at birth foretold a life of utter dependency. Tracy's mind never

developed. She could not sit up, talk, or feed herself. Cerebral palsy had strangled her

movements and twisted her body. Surgeons fought back, snipping muscles and wiring her

spine straight.

At four months, Tracy began having seizures every minute she was awake....Doctors,

after experimenting with a variety of anticonvulsants -- phenobarbital, Depakene,

Dilantin, Tegretol -- finally put her on Rivotril, a drug similar to Valium, with sedative

effects. Tracy's seizures eventually dropped to five or six each day. While she could roll

over, her reflexes were not responsive and she showed no signs of learning to crawl.

Tracy wore diapers and often needed suppositories to unplug her bowels. Feeding her

took about half an hour. She had trouble swallowing....Vomiting was a problem

throughout her life.

2

Tracy had her first operation when she was four. It was now clear that she had a severe

case of cerebral palsy, that she was what is known as a totally body-involved, spastic

quad. Her damaged brain was sending abnormal signals to all parts of her body,

triggering spastic muscle responses that, combined with her seizures, wrenched her frame

into twisted, frozen positions. To help relieve tension at her hips and keep them from

dislocating ... orthopaedic surgeons in Saskatoon cut the abductor muscles at the top of

Tracy's legs....[As a result] she lost the ability to kick her legs.

The seizures continued.... Doctors decided to cut the muscles in her toes, on the outside

of her knees, and again at the top of her legs, and put her in a plaster body cast for six

weeks in an attempt to keep her body straight. About seventy-five per cent of "totally

involved" children develop an abnormal curvature in the spine, called scoliosis. Another

seventy-five per cent develop either a partially or a fully dislocated hip. Tracy had

developed both.... By 1989, her back was curved to the right at a fifty-degree angle, into a

C shape. This put pressure on her lungs, forcing liquid inside and causing frequent

bronchial infections.

Tracy's spine had reached a seventy-three-degree angle in the months leading up to her

fourth and final operation in August, 1992. [Anne] Dzus, [a paediatric orthopaedic

surgeon in Saskatoon] opened up her back, placed two long stainless steel rods one on

either side of her backbone, and drilled them into place at the pelvis. Steel cable was

wrapped around each vertebra and then pulled around the rods and tied.

The operation was a qualified success.... But the steel rods and cables left her "like a

board," says Laura, [her mother] "She was never the same again." sleeping became a

problem. Her left side developed angry bedsores so the Latimers had to shift Tracy to her

other side at regular intervals, which was painful as her right hip was fully dislocated.

On October 12, Laura took Tracy to Saskatoon for the last time.... Dzus felt strongly that

the hip required surgery....Even if they went ahead and fixed the Tracy's hip, Dzus had

cautioned that the procedure could leave her in "incredible" pain.... There was nothing to

prevent the other hip from dislocating later on, and in the meantime something else could

go wrong. "They said they were just treating the symptoms, they weren't treating her

problems," recalled Laura.... "There was no end to the surgeries that Tracy was going to

have to have." They both felt trapped....Five days later Tracy was dead. [1]

Robert Latimer did the right thing and for the right reason. In the circumstances, he did

what every rational and compassionate person would do and ought to do. The alternative,

namely, to continue to subject Tracy to a never ending schedule of treatment that could

do nothing to commute the merciless sentence her biology imposed on her -- as both the

current law and moral fundamentalists would have her father do -- would be to subject

her to cruel and unusual punishment. [2] And that is morally reprehensible and barbaric.

The law disagrees. But that is not surprising. Legal justice and moral justice do not

always coincide. Sometimes the law is morally blind -- as this case tragically

demonstrates -- and when it is, it needs to be changed. It is not because justice matters

3

that we care, rather, it is because we care that justice matters. Just when and how the

law should be changed is a moral, not a legal, matter. It is not the law that determines

what is morally right; it is what is morally right that determines what the law should be

and how it should be interpreted and applied. This is why blind obedience to the law is

morally objectionable.

The foregoing is not the only reason why it is a mistake to think that following the law

will ensure that justice is done. Another is that the legal system arbitrarily insists on being

its own judge and jury with respect to the question of whether its own laws are just.

Juries, for example, have the moral right, and the de facto power, to ignore the law if they

think it is unjust. But according to the legal system as it is presently constituted, it is

illegal for the judge to disclose this crucial fact to the jury. This is not a minor point for it

shows there is a built-in injustice in the justice system that precludes the jury from

making a morally responsible decision. The end result of this sort of deceit is that the

very elements essential in making morally just decisions -- love and compassion -- the

very kind of evidence that differentiates what Robert Latimer did from what Susan Smith

did in South Carolina, are all inexcusably excluded from the court's deliberations. In

Latimer's case this meant he could not be legally acquitted even if every member of the

jury agreed that what he did was morally justified! Hard cases, they say, make bad laws;

what is conveniently ignored is that bad laws make hard cases more difficult and tragic

than they need be.

It is no wonder the vast majority of Canadians are morally outraged by the verdict. And

rightly so. Not everyone, however, agrees.

The reaction of some has been ambivalent. For reasons discussed below, many have been

reluctant to commit themselves one way or the other on the question of whether Robert

Latimer did the right thing. Uneasy about approving of what he did and at the same time

reluctant to categorically condemn his action, they have fastened instead on the question

of the appropriateness of the severity of the court's sentence. Their concern in this regard

is understandable for in comparison with the charges brought against others in similar

cases, and in light of their subsequent suspended sentences, Latimer's sentence of life

imprisonment (without eligibility for parole for 10 years) for second degree murder is

clearly more vengeful than just.

On May 15, 1993, Michael W. Power (35) and Cheryl M. Meyers (36) killed Cheryl's 67

year-old father who was dying of terminal brain and lung cancer. Not wanting to undergo

the undignified and painful suffering that his wife Rita had undergone before she died of

cancer in August 1991, he repeatedly requested that they not let him suffer the way his

wife had. Finally, with apparently only a few hours to live, they smothered him with a

4

pillow. Charged originally with second degree murder, they eventually pleaded guilty to

manslaughter. On December 23, 1994, a Nova Scotia Supreme Court judge, Justice Felix

Cacchione, found that the common-law couple had "acted out of compassion, mercy and

love" and gave them a suspended sentence. They were placed on three years probation

and ordered to put in 150 hours of community service. [3]

On March 2, 1995, 81 year-old Jean Brush, the survivor of a failed double-suicide pact,

pleaded guilty to the lesser charge of manslaughter after admitting she had stabbed to

death her ailing husband of 58 years. Judge Bernd Zabel of the Ontario Court's Provincial

Division gave her a suspended sentence and placed her on probation for 18 months. [4]

Although both judges are empowered by the law to impose the maximum sentence of life

imprisonment for manslaughter, neither did. Neither was blinded by `the letter of the law'

to the `spirit of the law'. Both recognized the exceptional circumstances in which the

defendants found themselves, both recognized the defendants acted out of mercy, love

and compassion, both acknowledged that incarceration would not serve the ends of

justice, and both acknowledged that the defendants' inerasable knowledge of what they

had done left them with a greater loss than any legal punishment the courts might impose

could extract. The same judicial enlightenment was notably absent in the judicial

proceedings in Latimer's case. Unlike his Eastern colleagues, Randy Kirkham, the

prosecutor in the Latimer case, deliberately followed `the letter of the law' to the letter,

ignored the exceptional circumstances of the case, and charged Latimer with first-degree

murder. After the trial, with the inflated righteousness of a legal zealot, and despite all the

evidence to the contrary presented during the trial, he steadfastly continued to describe

Latimer as a "callous, cold, calculated and heartless" murderer who had taken it upon

himself to play God in order "to make his own life easier." [5] As this unfounded and

prejudicial characterization of Latimer demonstrates, Kirkham, unlike the God he

invoked, was obviously not willing to see justice tempered with mercy. When tempering

justice with mercy is viewed as tantamount to tampering with justice, it is not surprising

that Latimer was treated unjustly. [6]

Although Latimer's inequitable treatment before the law is a matter of legitimate and

serious concern, it ought not to deflect attention from the central issue which is whether

Robert Latimer was morally justified, in the circumstances, in killing his severely

disabled 12 year-old daughter, Tracy. The question of whether he deserves to be punished

arises only if what he did was in fact immoral. If he was morally justified in ending his

daughter's ineradicable pointless pain and suffering, he deserves neither to be punished

nor rebuked. The claim that he ought to be punished, but not as severely as the law

demands, makes no sense if what he did was morally justified. It is equivalent to arguing

that someone can be justifiably legally punished for doing what is morally right! But this

is absurd. And yet this is precisely what has happened in this case and why the majority

of Canadians are condemning the jury's verdict as a travesty of justice.

Society cannot have it both ways. If what he did was wrong, he deserves to be punished.

If he did what was right, he deserves to be lauded for his moral courage and not punished

for it. There is no in-between.

5

Those who condemn Latimer are quick to point out that although there are obvious

surface similarities between his case and those cited above and the more widely

publicized case of Sue Rodriguez with which it is often compared, there is a significant

difference between them. The difference is that the severity of Tracy's cerebral palsy was

such that she had neither the intellectual ability to comprehend the alternatives of life or

death nor the ability to give vocal or written consent to have her life ended. Even

sympathetic supporters of Latimer admit to being bothered by the fact she was unable to

give consent to having her father kill her. But they ought not to be. For while the matter

of consent is of crucial import in the aforementioned cases, in Tracy's case it is simply

irrelevant. The worry about the absence of consent on her part only makes sense if she

had been capable of giving consent and had refused to do so. But of course she could do

neither. This does not mean her father and/or mother were not justified in deciding for her

what was in her best interest. They had made this decision for her every day of her life.

To insist, as some do, that, in the absence of consent on her part, her parents had no right

to make decisions on her behalf, is both irrational and morally perverse. For it is to say

that because Tracy was never able to consent to treatment -- never able to say "yes" --

that her parents, knowing her cerebral palsy could never be `cured,' were wrong in

consenting on her behalf to all the medications, drugs, treatments and operations that kept

her alive for 12 years. Yet, these are the very same people who, while condemning

Robert for acting without Tracy's consent, are absolutely convinced that the right thing to

have done would have been to continue to pump her full of drugs and to subject her to a

series of decreasingly effective salvage operations as long as these assaults on her body

kept her alive, despite the fact Tracy was unable to refuse to give consent -- unable to say

"no"!

The same twisted logic surfaces amongst those who claim that when Latimer took it upon

himself to decide what was in the best interests of Tracy he was `playing God.' While

they do not think Latimer is qualified to play the role of God, they have no doubt about

their own qualifications and ability to play the part of the Almighty. One might well ask:

How is it all those who so confidently insist it is impossible for Robert Latimer to know

what is in the best interests of Tracy, are so certain they do know what is in her best

interests? Their unbounded self-righteous conceit does a disservice to us all. It is a thinly

disguised attempt to absolve us from the moral responsibility that is ours alone. We have

to play God; there is no alternative, for we are the only gods there are.

Armed with the insight of hindsight, some have succumbed to the temptation to blame

the medical profession for the predicament Latimer eventually found himself in. Had the

attending physician not resuscitated Tracy in her infancy, had he `let her die,' the ensuing

tragic series of events that led to her death would never have occurred. There is no doubt

that for some, like Tracy, the only thing better than an early death is not to have been

6

born at all. But she was born and unfortunately there was no way of telling at birth she

would be one of the unfortunate 10% at the extreme end of the spectrum of those afflicted

with cerebral palsy, that she would suffer the deprivations of severe mental retardation,

the painful involuntary contraction of all the muscles in her body, and be subject to

recurring seizures. Blaming the medical profession for what happened 12 years later may

help in venting one's anger at Nature's indifference to Tracy's plight but it is a pointless

and irrational exercise. The only villains in this case are those who, despite the present

day knowledge of the everyday horrors of Tracy's life, heartlessly insist that Tracy should

have been forced to live out her tortured life to the bitter end.

It is not always easy to live and it is not always easy to die either. Sometimes people need

help to live and sometimes they need help to die. Tracy needed both. She could not live

without help and she could not die without help either. Tracy was fortunate she had

loving, caring, and compassionate parents who unselfishly gave her the help she needed

to both live and die.

The prosecutor's claim that a verdict of "not guilty" would signal "open season on the

disabled" is not only absurd but demeans and insults us all. It is a cheap shot. It implies

the able-bodied, unlike the disabled, are all closet Nazis held in check only by the law!

Tracy's cerebral palsy was not, and is not, the issue. Tracy and her parents had lived with

that fact twenty- four hours a day for twelve years. During that time they could have

abandoned her, neglected her, or mistreated her. But they did none of these things. Nor

did they make life easier for themselves by putting their daughter into an institution and

letting others look after her. Instead, they accepted her for whom and what she was, kept

her and tended to her every need knowing full well that their countless daily sacrifices

and tender loving care could not overturn the merciless sentence Tracy's biology had

imposed upon her.

But in the end it was the pain -- the unmanageable, unbearable, and unredeeming pain --

that neither they nor Tracy could live with. It was because the relentless pain she was

suffering was pointless, that no good would come from it, that her father mercifully

ended her life. There is nothing strange about this. Nor is it difficult to understand. People

will consent to painful procedures and treatment if that is indeed the only way they can

achieve a desirable good such as health or the birth of a baby. But no one in their right

mind would consent to being subjected to painful and crippling procedures out of which

no good could come. The fact that Tracy was neither intellectually nor vocally equipped

to express this axiom of commonsense is no reason to think Tracy was any different from

anyone else in this regard. Nor was this severe disability of hers an excuse to treat her as

a human guinea pig.

7

That the disabled who see Tracy's death as a threat to their own survival are prepared to

countenance and, indeed, to vociferously insist, that Tracy's parents and society should

sanction and enforce the continuation of this kind of inhuman medical experimentation

on Tracy, speaks volumes about the cruel selfishness that passes for compassion by those

who would have us refrain from ending Tracy's senseless suffering. They are the ones

who are the real villains in this drama. The very care and compassion they insist they

have a right to expect from others, they themselves are not prepared to extend to others!

Sadly, the only compassion they are interested in is that which is directed at themselves.

[7]

Afraid that they themselves will be unwillingly put to death, the disabled demand that no

one who wants to end their life should be allowed to do so and that such persons should

be compelled instead to live out their lives to the bitter end. But this fear on the part of

the disabled is a red-herring in the euthanasia debate. No one is arguing that it is morally

justified to end a life worth living. Nor is anyone arguing that the disabled be killed

regardless of whether they want to continue to live. That would be absurd. However, to

compel someone who wishes to die, to continue to live, is just as absurd, barbaric, and

unjustified.

The self-centred rhetoric of spokespersons for the disabled is itself a form of abuse; it

politicalizes what is a universal problem. Abuse is not a problem that only affects the

disabled. To talk as if it were, makes about as much sense as the claim that racial

discrimination is a Jewish issue -- namely, none! Despite all the rhetoric one hears to the

contrary, racism is not a skin disease; it is not some sort of inbred racial defect of a

particular race; nor is it a peculiar affliction inherent in a particular economic class; and

neither is it some sort of genetic disorder. It is none of these things. It is rather a universal

human failing born of moral weakness and ignorance of oneself, others, and the world in

which we live. The same is true, mutatis mutandis, of all forms of unjust discrimination.

Unlike justice, injustice is blind; it is ageless, colour-blind, gender neutral, and racially

and biologically indifferent; it is indifferent to the differences between men and women,

young and old, heterosexuals and homosexuals, theists and atheists, blacks and whites,

the disabled and the able-bodied, the intelligent and the not-so-intelligent, the poor and

the rich, and so on. Moreover, the perpetrators of unjust discrimination are no more

identifiable by their biological characteristics and/or their membership in some socially

constructed category than are its victims. This is why unjust discrimination is the

multifaceted universal problem it is and why it is a problem that concerns us all.

Abusive discrimination, in whatever form it surfaces, is a wrong that needs to be righted.

Spokespersons for organizations for the disabled have uniformly expressed their relief

that Latimer was prosecuted and found guilty -- if not of first degree murder at least of

murder in the second degree. Underlying their relief is their conviction that the only

satisfactory or acceptable safeguard against abuse is the rigid enforcement of some

system of sanctions that would admit of no exceptions and that would thereby eliminate

even the possibility of abuse. This is the same sort of muddled reasoning that guides

those who would have us solve abuses of Medicare or unemployment insurance

programs, for example, by abolishing such programs. Such drastic measures would

8

certainly be effective -- one cannot abuse what does not exist. However, it would also

effectively punish everyone for the misdeeds of a few -- a form of abuse worse than that

which it is intended to rectify! The same holds true for euthanasia. Categorically

condemning euthanasia, regardless of a person's condition, wishes, or circumstances,

punishes us all for the possible abuses of a few. This stretches our common sense of

justice beyond recognition.

What the disabled and others fear is that if Latimer is not punished, if the killing of his

daughter is exempted from the general condemnation of the killing of innocent persons,

then the lives of all of us are at risk. We will have begun to descend a slippery slope

which will inevitably land us in moral chaos. This is the fear and the rhetorical means by

which many have tried to justify their heartless and unforgiving condemnation of

Latimer.

Slippery-slope arguments are notoriously slippery arguments. They can have a positive or

a negative function. Their positive function is to persuade people that the step they are

contemplating taking is both rational and morally permissible. The thrust of positive

slippery-slope arguments is to bring about needed moral reforms and change the status

quo. Alternatively, negative slippery-slope arguments are designed to maintain the status

quo by dissuading people from taking a step in a certain direction on the grounds that the

proposed change would only make things worse than they already are.

The standard use of slippery-slope arguments is the negative one of `painting the Devil

on the wall.' As such they are easy to formulate but difficult to substantiate. The

following is typical:

Once a single brick is removed from the dam protecting the sanctity of all life, the entire

dam is liable to collapse and every life is at risk.... From the killing of a malformed

infant, it is only one slippery step to the elimination of cripples or senile people in

advanced stages of degeneration. From there it is only one further step to the destruction

of other 'undesirables' burdening society. [8]

The prosecutor's claim that a "not guilty" verdict in the Latimer case would signal "open

season on the disabled" is a variation on the same theme. In both cases the claim is that

one thing leads to another and before we know it we will find ourselves in a state of

moral anarchy.

What makes such slippery-slope arguments particularly slippery is that it is easy to slip

into thinking that because the moral anarchy depicted in the argument is a logical

possibility it is therefore a real possibility. But these, however, are two distinct claims. It

is one thing to argue that once we begin to descend the slope the possibility exists that we

will continue to slide until the bottom is reached but quite another to argue that, as a

9

matter of fact, no foothold can be carved out on the slope and that sliding to the bottom is

inevitable. Showing that something might happen does not prove that it must or will

happen.

It is not up to others to show that what might happen could not happen. The onus is on

the prosecutor, the spokespersons for the disabled, and others of the same persuasion, to

demonstrate that what might happen will happen. In light of the absence of such evidence

their appeal to the slippery-slope is nothing more than empty rhetoric -- not that that

matters to them. Their bluster knows no end. With an arrogance born of ignorance, they

shamelessly continue to insist that the rest of us -- unlike themselves! -- lack the requisite

intelligence, knowledge, and moral character to know when, where, and how, to carve out

a foothold on the slope. Suffice it to say, their lack of confidence in the ability of the rest

of us to make morally discriminating judgments is based less on fact than it is on their

own apparent incompetency in this regard. Most people with moral commonsense have

no difficulty in carving out a foothold on the slope, of drawing a line between the

Latimers and Susan Smiths of this world.

Perplexed and bothered by the complexities involved in drawing the line at one point

rather than another, the question invariably raised is: "Where are we to draw the line?"

One common response to this question is that no line ought to be drawn at all. But this is

not the solution to the problem many think it is. It is not a solution because it is

impossible not to draw a line at some point or other. Refusing to draw a line just means

the line is being drawn at one or the other extreme ends of the spectrum rather than at

some disputed point in-between.

Refusing to draw a line does not solve our problems. It simply ignores them. However,

ignoring a problem is no solution. If anything, it makes matters worse. Not the least of

the problems this kind of pseudo-solution creates is that it compromises our moral

integrity. Worse, the pretence that such decisions are not made is both unrealistic and

hypocritical. The harsh realities of life force us to make decisions of one kind or another -

- to make `quality of life' decisions -- whether we want to or not. Such decisions are made

all the time in medicine. As well, political decisions regarding health care are `quality of

life' decisions even though they are not explicitly described as such. Nevertheless that is

what they are. The pretence that such decisions are not made is a strained denial of

reality.

The choice, then, that confronts us, is not whether we ought to make `quality of life'

decisions, but whether we ought to make unfounded and\or unsympathetic decisions, or

whether we ought to make the most rational and compassionate `quality of life' decisions

we can in the circumstances.

10

Whenever we make `quality of life' decisions -- wherever we decide to draw the line --

we have no guarantee we are drawing the line in the right place. Without the 20-20 vision

of hindsight, it is impossible to be absolutely certain beforehand that our decision is the

correct decision. Without the foresight of hindsight perfection is impossible. Only after

the decision is made and acted upon will we know for certain whether we made the right

decision. But this is no excuse for shirking our moral responsibility and not doing the best

we can. The alternative is to refrain from making a decision but this, to repeat, is to make

a decision by default. In particular, it is to opt for a continuation of the status-quo state of

affairs that generated our moral uneasiness and concern in the first place.

There is no abstract, impersonal, mechanical, decision procedure by means of which we

can determine someone's `quality of life.' But that is not to say that we cannot make

`quality of life' decisions. We make them all the time -- in medicine and in politics. And

we make them on a comparative basis -- on the basis of the wisdom of our common lifeexperiences

and observations.

The `quality of one's life' is a matter of degree. That is, the `quality of one's life' depends

upon the degree to which one can realize the physical and mental capabilities that are

characteristic of our species. Understood in this sense, judgments about the quality of

one's life are an objective matter.

The `politically correct' would have us believe otherwise. Ms Priti Shah, a lawyer with

the Canadian Disability Rights Council, for example, would have us believe that the

marked difference between the public's anger and unmitigated condemnation of Susan

Smith's cold-blooded murder of her two young sons and the public's sympathy for Robert

Latimer is indicative of a widespread prejudice in society against the disabled. "Who are

we," she asks rhetorically, "to say that because the Smith boys were able-bodied that their

lives were better than Tracy's? This is a classic imposition of a stereotype." [9] Shah's

confused comment -- and it is not uncommon -- is counter- productive to what is in the

best interests of the disabled. It is precisely because the disabled are disabled, are

vulnerable, that the need for ensuring their welfare arises. And yet when their differences

and vulnerability are tellingly described, these descriptive truths are resentfully dismissed

as oppressive!

Ms Shah and the disabled she represents are understandably sensitive to `quality of life'

decisions. But the fact that the disabled are disabled is not a prejudice but a physical fact.

The simple fact is that on a comparative `quality of life' scale, the greater one's disability,

the less the objective quality of one's life. This is an unalterable fact of life. The disabled

may not like it but it is a fact they have to live with. Nothing they can say or do can

change the fact of their disability and the diminished quality of life it entails.

11

However, the question of the quality of life that one objectively has is distinct from the

question of whether the quality of life one has is worth living. Whereas the former is an

objective judgment, the latter is an individual subjective judgment. Whether a life of a

certain quality is worth living, will vary depending upon whose life it is and what price

the individual is prepared to pay to live it. As well, those whose lives are inextricably

interwoven with the lives of those who, like Tracy, are incapable of making this decision

for themselves, also have to pay a price and it too has to be factored into the decisionmaking

process. Religious fanatics and rule-bound moralists may not like it but moral

commonsense clearly recognizes that life at any price is not worth the cost. Those who

object conveniently forget that no price is too high to pay for those who do not have to

pay it nor is anything impossible for those who do not have to do it.

Morality is not a game that one can choose to play or not play. We can play it well or

play it poorly but play it we must. It is, if you will, a game within the game of life --

which is why we are life-long participants in it whether we like it or not. It is what

differentiates us from non-human animals.

It is not a simple or easy game to play. To play it well requires both intelligence and

emotional maturity. The importance of the latter cannot be overemphasized. If we did not

care, if we were emotional eunuchs -- unmoved by the pain and suffering of others -- and

if moral reasoning was simply an intellectual exercise in logical thinking, the

consequences of our actions would still count but none would 'matter' in the ways in

which they do. As it is, we are not the sort of one- dimensional rational androids that

moral absolutists with their rigid principles would have us be. We both think and feel and

the commonsense moral judgments that people with commonsense ordinarily make

realistically reflects this duality of our nature. The more morally mature and astute

recognize that if it were not for our ability to reason, the actual and potential

consequences of our actions would be unintelligible to us but they also recognize that if

we were not the sentient, compassionate and caring beings we are, the moral significance

of these consequences would be equally incomprehensible. Both characteristics are an

integral part of what it is to be moral. In the absence of either morality is impossible.

It is in recognition of this fact that our ordinary moral judgments are infused with

intelligence and compassion in a way that reflects the dynamic and flexible interplay that

exists between reason and emotion in our daily lives. At their best, our commonsense

moral judgments are a rational expression of our emotional concerns. At their worst, they

signal the difficulty involved in achieving the requisite equilibrium between feeling and

thought, between the spirit and the letter of what it means to be a responsible moral

human being.

Serving on a jury does not mean one has been granted 'time out' from playing the moral

game. There are no `time outs' in playing the moral game even when one is serving on a

12

jury. If anything, members of a jury have a special moral duty to see to it that justice and

not just `the law' is served. In the Latimer case members of the jury did just the opposite.

In following the judge's orders not to let their emotions play a part in their deliberations

and in agreeing to be guided solely by reason and the law, the members of the jury

morally castrated and dehumanized themselves in the process.

The demand that we disown our emotions, that we pretend we have ice-water in our

veins, that we act as if we were nothing more than thinking computers, is a moral deathwish.

It is reason that enables us to correctly identify the moisture on Tracy's cheeks as

drops of salt water but the recognition that these droplets of salt water are tears, or more,

that they are tears of pain or sadness rather than tears of laughter or joy, is an insight of

the heart and not the head.

Thoughts without feelings are like lamps without oil -- useless. This is why we do not

turn to computers, no matter how advanced they may be, for moral guidance. A computer

may recount a joke, but it fails to see the joke's humour. And that is the problem --

computers are devoid of emotion, they cannot laugh or cry and hence are incapable of

sympathy and compassion. Without reason the facts are senseless and without

compassion they are barren. In the absence of either morality is impossible.

In bringing in a guilty verdict the jury members demonstrated a lack of moral courage --

the very sort of moral courage that Robert Latimer displayed when he did what he was

morally obligated to do despite its illegality. It is no defence to protest: "We were only

following orders -- legal orders that were given by a legally authorized authority, namely,

the presiding judge." This is just another example of The Eichmann Defence, the defence

Adolf Eichmann gave when tried as a war criminal for his part in the Holocaust. But

Eichmann's defence, "I was just following orders" did not morally excuse him from what

he did and neither does it morally excuse the jury from the injustice they have inflicted

upon Robert Latimer and his family.

Obsessed with what will (or might) happen if we do certain things, little thought is being

given to what will (or might) happen if we don't do certain things. It is time we did. To

know what will happen we need only look at what is already happening. For unless the

laws governing euthanasia are changed, the future will resemble the present only more

so.

If something is not done to help the dying die, more and more people will be faced with

the situation of a loved one being kept alive long after any hope of recovery is possible.

In a recent letter to the editor of The Globe and Mail, Cyril Kalin describes how twice in

her life family members were mistreated because of some medical personnel's misguided

sense of duty to their patient. "My father," she writes,

13

was 86 years old and in the last stages of lung cancer when a religious nurse in the Los

Angeles hospital where he was a patient took it upon herself to defy his doctor's

prescription for four-hourly administrating of a painkiller. This was on the grounds that if

continued it could lead to his death. It took actual threats to the hospital on my part to

have the doctor's instructions reinstated.

The second case was my 39-year-old daughter, this time in the Columbia-Presbyterian

Hospital in New York City.

She had had a flat brain trace for a week and when I arrived there I found that the

attending doctor had prescribed, and she had been given, antibiotics to fight her infection.

Again I had to resort to violent protest before anyone had the guts and intelligence to let

the girl die.

This particular doctor actually admitted that "these people here are paranoid about pulling

the plug. [10]

Physicians have a duty to do for their patients what needs to be done. But this is no

excuse for a physician to insist on aggressive treatment far beyond the point when the

patient can hope to benefit. There are times when nothing should be done. And there are

times, as in Tracy's case, when patients should be given the treatment that ends all

treatment.

If we do not legally help those who wish to die, the Sue Rodriguezs of this world, to say

nothing of those with Aids, will seek and receive the help they need outside the law. If

the law is not changed, caregivers will continue to find themselves in guilt-ridden no-win

situations. Jane Doe (a pseudonym) spoke for many when she wrote of her own

conflicting feelings in keeping her daughter alive.

I consider myself a conscientious parent. I wake up every morning at 6 a.m. to help my

daughter to get ready for the day. She has a degenerative neurological disease. So, I have

to change her diapers, dress her, get her up, feed her breakfast and offer her liquids. She

is virtually helpless, and I hate to think about how she feels lying there in bed, waiting for

me to come.

I don't know really know how she feels because I'm not able to have conversations with

her. She can no longer speak....

Most kids with her disability are dead by her age. I believe she is still alive because of the

care I've given her. When she has pneumonia [and she has had it countless times], I sleep

by her bed on the floor, so I can get up to turn her over every half-hour. If I have to, I'll

clap her back to break up the congestion, and sometimes I'll use an eyedropper to give her

water....

It seems like I pull her through one illness only to face another. I'm the one who

resolutely keeps her alive....

14

Of course, I know that if I even once withheld antibiotics from her, or wasn't so evervigilant,

she would die. But I can't stand to see her suffer. Yet I can honestly admit that if

there was a pill or a shot -- and no legal strings attached to its use -- she would have

received it long ago.

I keep on thinking about our old dog that we put to sleep last year when her cancer,

arthritis and heart condition all caught up with her. I patted her head and looked deep into

her eyes as the shoot the vet gave her took effect. This dog and I were pals, and I still

miss her, but I don't regret the choice that was made

For my daughter, the situation is more problematic, legally and morally. So I go on....

Now my daughter is on the waiting list for a group home....I know that I can't go on any

longer after so many years or rally the specialized help she needs forever....I feel I'm

imposing a death sentence on her by sending her there, but society supports this kind of

decision....

I can easily understand what Robert Latimer was thinking the day his daughter died. [11]

In the end, Jane's misplaced compassion for her daughter will betray them both. Her

daughter will die in an institution. Uprooted from her home, from her familiar

surroundings, deprived of the ever ready sound, sight, and touch of her mother, she will

die -- alone -- amidst a sea of strangers. And Jane will bear the nagging guilt of knowing

she did not do what she knows she should and would have done had it not been for the

law. Her lack of moral courage in this regard is understandable. It is also regrettable.

Under our parliamentary system the political solution to seemingly insoluble moral issues

is to allow members of parliament a `free vote' whenever, if ever, legislation on such

matters is brought before the House of Commons for a vote. A 'free vote' means members

are no longer constrained by Party affiliation and can vote according to the dictates of

their own individual consciences. There are several problems with this approach, not the

least of which are the following.

First, if Robert Latimer's conscience is dismissed as an illegitimate moral authority, what

reason is there to believe that the conscience of a member of parliament is any more

morally reliable? If anything, Latimer's conscience, given his unique, intimate,

knowledge and care of Tracy, is better informed than the conscience of any member of

parliament could possibly be.

Second, the claim that the collective consciences of members of parliament ought to be

accepted as morally authoritative is just a reformulation of the undergraduate myth that

15

what is morally right is whatever is accepted or approved of by the majority. Despite its

widespread popularity, this view of right and wrong is false for it entails the selfdefeating

presupposition that the truth in moral matters is just a matter of opinion; it

conflates the distinction between belief and knowledge; it renders the fact of moral

disagreements and the idea of moral progress unintelligible, it tolerates acts of intolerable

intolerance; it makes cross-cultural moral judgments impossible, and it attributes to the

majority a moral infallibility that is belied by the historical facts. The aforementioned

inconsistencies and absurdities also bedevil the `subjectivist' interpretation of moral

judgments according to which the approval of the majority is replaced by a moral

standard of every individual's own making.

Third, once parliamentarians are free of party discipline and free of the responsibility of

having to represent the predominate view of their constituents, once they are free to vote

as they personally see fit, Parliament's vote is a crapshoot. [12] It ought not to be; moral

truth is not a popularity contest. Moral judgments, like scientific judgments, are only as

sound as the evidence and arguments on which they rest.

Those who have condemned Latimer have done so on the basis of reasons and arguments

that cannot be sustained. Their reasons and arguments lack both intellectual merit and

genuine compassion. I do not deny the problems that abuse presents, nor the slipperiness

of the slopes on which we constantly find ourselves, nor the difficulty in drawing lines

fairly, nor the agony of the finality of quality of life decisions, nor the fallibility of both

our thoughts and feelings. What I do deny is the legitimacy of these concerns in the case

of Robert and Tracy Latimer.

Being moral is not easy; it is fraught with risk and ambivalent decisions, with ignorance

and unfounded convictions, with imperfect knowledge, misguided compassion and frayed

courage. More needs to be said and done, [13] but in the meantime we would do well to

remember the following:

While moral common sense is unnecessary in heaven and pointless in hell, it is

indispensable in life.

1 - Bruce Hutchinson, "Latimer's Choice," Saturday Night, March, 1995, pp. 37-43. This

is the most detailed, accurate, account in print (that I am aware of) of the history of

Tracy's medical condition and of what she and her family went through during the 12

years of her life. In light of the facts recounted by Hutchinson, it defies comprehension

16

that another journalist, Linda Goyette, an editorial writer with the Edmonton Journal,

could write without any sense of wrongdoing:

It's odd that we vilify a South Carolina woman for the murder of two sons while we offer

infinite sympathy to a Saskatchewan father who committed the same crime....What was

the difference between Michael and Alexander Smith and Tracy Latimer? Not humanity.

Only human intelligence. [Quoted in "Reactions." The Globe and Mail, November 25,

1994.]

Goyette's comment, based as it is on an appalling ignorance of the most basic facts

distinguishing the two cases, deserves to be dismissed for the asinine comment it is.

Unfortunately, she is not alone in her ignorance.

2 - A moral fundamentalist is one who believes (a) that to be moral is to be rational, (b)

that to be rational is to be a person of principle, (c) that moral principles are absolute and

universally valid, and (d) that moral principles, as edicts of reason, always 'trump' the

dictates of the heart. "Do good and avoid evil" is an indisputable moral axiom and should

not to be confused with, for example, the moral principle: "The intentional killing of an

innocent person is always wrong." Unlike the former, the latter is disputable. It is, for the

reasons given in the text, indisputably false.

3 - The Daily News, December 24, 1994; The Chronicle-Herald, December, 1994.

4 - The Globe and Mail, March 3, 1995.

5 - The Star Phoenix, November 16, 1994.

6 - Evidence has now surfaced that Kirkham, with the aid of the RCMP, had no moral

qualms about tampering with justice when it served his own legal ends! "Cpl. Nick Hartle

`collaborated' with Kirkham in preparing [a] questionnaire used to gather information on

prospective jurors' religion, their position on abortion and mercy killing, and whether

they had any family members or `close associates' with disabilities." This information

was not disclosed "to the sheriff, the trial justice or the defence." [The Star Phoenix,

October 31, 1995.] The Justice Department is conducting an internal investigation. In the

meantime, Kirkham has been suspended with pay!

7 - Not every disabled person is as embittered by their disability, or is as cynical about

the motivation of their care givers and/or the general public's commitment to their

welfare, as the statements of spokespersons for organizations on their behalf suggest. The

words of Valerie Baker express a very different attitude:

People ask me if I feel threatened by what he did to his daughter. Like Tracy, I too have

cerebral palsy, but any comparison made between the two of us would be like comparing

apples and oranges. I live independently, holding a master's degree and am capable of

making my own way in the world.

17

I feel sorry for disabled people who condemn Latimer. It's difficult to understand why

they feel threatened by this act of compassion. No one is advocating the killing of anyone

simply because they have a disability.

However, we do need to have deep compassion which will allow us to do what is right

for our fellow humans.

I only pray that if I become profoundly disabled, there would be a Latimer with me. [ The

Province, February 26, 1995. From the Kitchener-Waterloo Record.]

8 - Immanuel Jacobovits, "Jewish Views on Infanticide," in Marvin Kohl, ed. Infanticide

and the Value of Life (Buffalo, New York: Prometheus Books, 1978), p. 28.

9 - The Star Phoenix, November 22, 1994.

10 - The Globe and Mail, Saturday, December 3, 1994.

11 - The Globe and Mail, Tuesday, November 22, 1994, my italics.

12 - A striking illustration of the dangers of relying on the political process to provide

moral insight and leadership on the issues of euthanasia and assisted suicide is found in

Of Life and Death: Report of the Special Senate Committee on Euthanasia and Assisted

Suicide (June, 1995.) The majority of the seven member Senate committee basically

recommended maintaining the status quo even though national opinion polls have

repeatedly shown that 70% (and in British Columbia and Quebec, 80%) of Canadians

favour changing the current federal law's prohibition of euthanasia and assisted suicide.

But as John Hofsess, executive director of The Right to Die Society of Canada, pointedly

notes:

The committee's witnesses ... inverted these ratios. Of the 250 who appeared before the

senators, roughly seven in 10 opposed any change of the law. Thus we have, at best, 30

per cent of the witnesses representing 70 to 80 per cent of Canadians, and 70 per cent of

the witnesses representing 17 to 20 per cent of the population. [The Globe and Mail, May

4, 1995.]

The significance of these numbers becomes quickly apparent when one reads the report

and discovers that it consists of a series of often repetitive alternative summary

statements of `on the one hand' but `on the other hand' types of `argument,' with no

reasons being given for accepting the arguments of those who opposed change other than

the fact that their submissions outnumbered those in favour of changing the status quo.

13 - More is said and done in a book I am currently writing, Moral Sanity (Why Ethics

Ought Not To Be Taught As It Is), in which I articulate and defend what I call, "A Caring

Theory of Justice: An Ethic of Informed Commonsense."

18

Prof. R.W. Krutzen

Dept. Of Philosophy

University of Saskatchewan

Arts Tower, 9 Campus Road

Saskatoon, Sask. S7N 5A5

Published as "The Case of Robert and Tracy Latimer," in Ethical Issues: Perspectives for

Canadians, Second edition, Edited by Eldon Soifer (Peterborough, Ontario: Broadview

Press, 1997), pp. 454-66.

Addendum: [Nov. 26/96] to footnote #6: 30 out of 198 prospective jurors were

questioned by the RCMP about their religious beliefs and their beliefs about abortion and

euthanasia. Of the 30 people interviewed, 5 ended up as members of the jury. [This

information was given by Mr. A. Gold, a lawyer, in the course of an interview with

Pamela Wallin on her T.V. program on the evening of Nov. 25/96.]

After the trial, Mark Brayford, the defence lawyer, appealed to the Saskatchewan Court

of Appeal and presented a "defence of necessity." The Court dismissed the appeal in a

two to one decision. The dissenting judge argued that the punishment in this case

constituted "cruel and unusual punishment." Shortly thereafter it was discovered that 5 of

the jurors had been questioned by the RCMP about their religious beliefs and their beliefs

about abortion and euthanasia. The case then went to the Supreme Court of Canada.

Many hoped that the Court would dismiss the case and that Latimer would be free. The

Court, however, ruled that Latimer be tried again but this time for second degree murder.

On November 5, 1997, after a week long trial, the jury returned a verdict of guilty but this

time with a unanimous recommendation -- for which there is no basis in law -- that

Latimer be sentenced to one year in prison. During their deliberations the jury asked the

judge what the sentence would be if Latimer was found guilty of second degree murder.

Judge Noble, after considerable discussion with the prosecutor and the defence lawyer,

ruled that this information should be withheld from the jurors on the grounds that "it

might unduly influence their decision." The rationale given is odd, to say the least, since

if Latimer were tried by judge rather than jury it is doubtful that the judge would be

prepared to admit that his decision, whatever it might be, was "unduly influenced" by his

knowledge of the mandatory punishment required by the law. That the judiciary are

endowed with an impartiality that is above and beyond the capability of ordinary people

smacks more of arrogance than commonsense!

Some of the jurors have since publicly admitted that had they known the mandatory

punishment for second degree murder they would not have voted as they did. Given their

puzzling and troubling ignorance of this basic fact, it is not surprising they were also

unaware they had the de facto power to disregard the law if they deemed the law unjust

given the exceptional circumstances of this particular case. It seems that they were

19

appallingly ignorant of the fact that this is precisely what had happened when jurors

refused to convict and punish Morgenthaler for performing what were then illegal

abortions.

In addition to the foregoing, the judge made a point of telling the jury that the defence's

argument from necessity was legally unacceptable because Tracy's death was

"avoidable." Certainly it is true that if Robert had not killed Tracy on October 23, 1993,

she would not have died on that day. In that sense her death was "avoidable." It was

"avoidable," however, only if one was prepared to continue to subject Tracy to further

pointless surgery and ineradicable and pointless pain. If, however, she was to be spared

further crippling surgery and unending pain then her death was unavoidable. In this sense

her death was not "avoidable." In contrast to the sterility of the law's merciless justice,

Robert Latimer's deep sense of merciful justice shines as a light in the dark.

Before imposing sentence, Judge Noble agreed to listen to arguments from the prosecutor

and the defence. The defence, in arguing for leniency, appealed again to the defence of

necessity and argued for a "constitutional exception" on the basis of the Appeal Court's's

earlier dissenting judgment that a sentence of life imprisonment with no parole for ten

years would "constitute cruel and unusual punishment." Judge Noble's decision will be

handed down on December 1, 1997. In the meantime Latimer is free but confined to his

farm.

It is ironic that at the same time, in Halifax, Dr. Nancy Morrison, a respirologist, who

was originally charged with the first degree murder of a terminally ill patient has had the

charge against her reduced to second degree murder. Despite objections from the Halifax

Regional Police, the Crown prosecutor reduced the charge on the grounds that "it would

not be in the public interest for her to face a mandatory life sentence if convicted of

killing cancer patient, Paul Mills." The discrepancy between the way the law is being

applied to a physician in Halifax and to a farmer in Wilkie, Saskatchewan, suggests that

in the latter case a mandatory life sentence is in the public interest! This not only appears

to be unjust, it is unjust.

Abused, discriminated against and unjustly condemned by the legal system, the case of

Robert and Tracy Latimer is tragic in more ways than one.

The Globe and Mail: Letter to the Editor (Published: Saturday, December 6, 1997)

Trust a professional philosopher to turn commonsense upside down and argue that it is in

the best interests of every rational person that Tracy Latimer should have been compelled

to continue to live until her twisted tortured body collapsed on its own accord. Elmar J.

Kremer argues that "if someone kills an innocent person without the victim's consent [as

Robert Latimer did], by an act for which the killer is fully responsible [as Robert

acknowledges without regret or repentence], then the fact that he did what he thought

best for his victim is not a good reason for withholding the ordinary penalty for the

crime."

20

The fallaciousness of Kremer's argument is due not just to his ignorance of the fact that

Tracy was intellectually incapable of giving informed consent to any form of treatment,

life-preserving or otherwise, or to his inability to recognize that deliberately subjecting

Tracy to continuing experimental and crippling surgery, to ineradicable and pointless

pain, is to inflict cruel and unusual punishment on an innocent and defenceless person, or

to his erroneous assimilation of the law with morality, or to his unsupported implicit

allegation that Tracy's father was mistaken about what he thought was best for Tracy, or

to the unjustified arrogance of Kremer's assumption that he, a complete stranger, knows

better than Tracy's lifelong caregivers what was in Tracy's best interest. Like his students,

he ought to be aware of the fallaciousness of sweeping generalizations, of the fact that the

specifics of a particular case rightfully make a difference. The more morally mature and

astute recognize there is more to being moral than being rational and that thoughtful

emotions and emotional thoughts are essential components in making moral judgments.

Like all moral fundamentalists who are prepared to sacrifice the welfare of individuals

for abstract principles, Kremer has yet to grasp this axiom of moral commonsense. Were

he able to do so, he would recognize that, in the circumstances, Robert Latimer did the

right thing for the right reason.

News Flash Dec. 17 CBC News @ 10:00am : The Crown Prosecutor's office is filing an

appeal with the Saskatchewan Court of Appeal regarding Judge Noble's granting Latimer

a `constitutional exception' from the mandatory sentence of life imprisonment (without

parole for 10 years) for 2nd degree murder.

Those who argue that failure to uphold the law in Latimer's case jeopordizes the lives of

the disabled would do well to remember that while assisted-suicide is presently

disputably illegal, the same is not true of suicide. What many spokepersons for the

disabled fail to grasp is that it is the law against assisted-suicide that unjustly

discriminates against the disabled. It is discriminatory because whereas the able-bodied

may legally and morally choose to commit suicide, the disabled, who wish to die but are

unable to do so without assistance, are compelled to continue to live their lives out to the

bitter end. Thus the law as it presently stands denies the severely disabled the same

choice that the able-bodied have with regard to living or dying.

The tragic plight of Sue Rodriguez, who died on Feb. 12, 1994, is a case in point. She

died as she wished but only by subverting the law with the assistence of an unknown

physician. The subterfuge her disability forced her to resort to in order "to die with

dignity" is in marked contrast to a 80 year old breast cancer patient in Oregon who died

after taking a prescribed lethal dose of barbituates. The woman, who had been diagnosed

with breast cancer 20 years ago, "had been having an increasingly difficult time breathing

and recently was told by her doctor that she had less than two months to live."

Under Oregon's Death with Dignity Act, first passed in 1994 and reaffirmed in 1997,

doctors are allowed "to prescribe lethal drugs at the request of terminally ill patients who

21

have less than six months to live." [Globe And Mail, March 26, 1998, my italics.] The

law , however, does not allow doctors to administer the lethal dose. In this particular case

the latter restriction was not a problem. In the company of family members and a

physician the woman swallowed a lethal dose of "barbituates mixed with syrup and

washed [it] down with a glass of brandy." [Ibid.] For others, however, the restriction is

clearly discriminatory for it means that disabled persons, like Sue Rodriguez, who are

unable to take a lethal dose on their own, are denied the choice and opportunity that ablebodied

persons have in deciding whether or not to continue to live in the circumstances in

which they find themselves. It is time the more severely disabled were aware of their

`enemies' within their own ranks.

Judgments are only as sound as the facts on which they are based. Moral judgments are

no exception but one would not know it from some of the descriptions of Tracy's life and

death that have appeared in print. A recent flagrant and morally irresponsible example of

a description and analysis of the case of Robert and Tracy Latimer appears in Wesley J.

Smith's book Forced Exit: The Slippery Slope From Assisted Suicide To Legalized

Murder (New York: Times Books - Random House, 1997).

"Few events," according to Smith, illustrate the antidisability attitudes of society better

than the reaction of much of Canada to the murder of twelve-year-old Tracy Latimer,

who had a severe case of cerebral palsy. Tracy was killed by her father, Robert, one

Sunday, when the rest of the Latimer family was at church. After the family had left,

Latimer carried Tracy to the garage, put her inside the cab of the family pickup truck,

turned on the engine, closed the garage door, and walked away, leaving his daughter to

die alone, choking on carbon monoxide fumes. [my italics, p. 185.]

These are the facts as Smith recites them.

As demonstrated in my article, the facts behind Smith's carefully `selected' facts tell a

very different story -- a story without which no reasoned and empathetic moral judgment

is possible. Not that that matters as far as Smith is concerned for his aim is clearly not to

understand but to condemn. Thus, after noting -- but not understanding -- the national

support accorded Robert Latimer, he proceeds to equate what Latimer did with Susan

Smith's murder of her two sons. As he puts it:

Within months of Tracy's death, an American parent, Susan Smith, killed her two sons by

pushing her car into a lake with the the boys firmly buckled into their car safety seats.

Like Tracy, the Smith children died alone as their murderous parent watched from only a

short distance away. But unlike in Tracy's case, the entire country leapt to the

posthumous defense of the Smith boys. Susan Smith was branded a monster and had to

be protected from an angry crowd, while Robert Latimer was widely hailed as a loving

father. [Ibid.]

In light of the foregoing it is no wonder Smith gives short shrift to the relevant facts in

the Latimer case. Had he honestly done so he would have recognized, as any person with

22

a modicum of moral competence would, that the two cases are factually and morally

fundamentally different. But with this recognition his hidden agenda would have been

thwarted at the outset. Just what his underlying agenda is in equating the two cases

becomes immediately evident when, following the above quotation, he writes:

What is the difference? There is only one explanation: Smith's children were able-bodied

and pleasant to look at, and therefore they had a right to live their lives. Tracy Latimer

was disabled and unphotogenic, and therefore she was seen by many as better off dead.

[Ibid.]

It is a sad commentary when conclusions are drawn that fly in the face of elementary

rules of logic, when reason is supplanted by prejudice and morally relevant facts are

unconscionably omitted, and when moral incompetence is fobbed off on unsuspecting

readers by the publishers as "original reporting" based on "exhaustive research." Suffice

it to say, the morally blind need therapy, not logic. Smith is no exception!

An abstract of my article is to be found in Abstracts of Note: The Bioethics Literature in

CQ: Cambridge Quarterly of Healthcare Ethics, Volume 7, Number 3 Summer 1998, pp.

330-31.

News Bulletin - Sept. 17, 1998 Globe And Mail

Robert Latimer will appeal his conviction in the death of his disabled daughter next

month.

Mr. Latimer will appear in the Saskatchewan Court of Appeal on Oct.19. The

Saskatchewan farmer was convicted of second-degree murder for a second time last fall

for killing his daughter Tracy, who suffered from cerebral palsy.

In an unprecedented decision handed down Dec. 1, Mr. Justice Ted Noble of the Court of

Queen's Bench gave Mr. Latimer a two-year prison term. Second- degree murder

normally carries an automatic life sentence with no parole for at least 10 years.

The Crown's appeal, to be heard at the same time, will centre on Judge Noble's sentence.

In court documents, the Crown maintains the sentence was illegal and contrary to the

Criminal Code. [CP]

Letter to the editor: Globe & Mail [published Nov. 28, 1998]

The convoluted and mind-boggling reasoning that characterizes the Saskatchewan Court

of Appeal's ruling against Latimer was matched the following day in the Globe and

Mail's editorial comment on the need for legislation on assisted suicide. [Latimer,

Kevorkian and the law -- Nov. 24] Fearful that juries "practicing the black art of jury

23

nullification" may "act out their 'illegal' feelings" by failing to condemn those who

illegally participate in assisting someone to commit suicide, the editorial urges the

government to debate and pass "sensible legislation" so it would be clear to all that the

Latimers of this world deserve "not fellow-feeling, but clear condemnation, as justice

demands."

The editorial would have its readers believe that jury nullification -- the time-honoured

way of permitting juries to leaven justice with mercy -- is a "black art," that justice

tempered with mercy is tantamount to tampering with justice, and that ordinary citizens

lack the necessary moral smarts to judge the law's justice. The truth is otherwise -- which

is why the vast majority of ordinary citizens are morally outraged at the unjust

imprisonment of Latimer.

And if the editorial insult to our moral intelligence were not enough, we are further

expected to believe that although Latimer's conscience -- informed as it was through

having cared for Tracy since birth -- is an illegitimate moral authority, the uninformed

individual conscience of a member of Parliament is nevertheless a reliable moral

authority! The truth is otherwise: Once parliamentarians are free of party discipline and

free of the responsibility of having to represent the predominate view of their

constituents, once they are free to vote as they personally see fit, Parliament's vote is a

crapshoot. It ought not to be; moral truth is not a popularity contest. Like all judgments,

moral judgments, are only as sound as the evidence and arguments on which they rest.

Sometimes the law is morally blind -- as the Latimer tragically demonstrates -- and when

it is, it needs to be changed. Just when and how the law should be changed is a moral, not

a legal, matter. It is not the law that determines what is morally right; it is what is morally

right that determines what the law should be and how it should be interpreted and

applied. This is why the editorial's blind obedience to the law is morally objectionable.

Letter to the editor: The National Post [published Dec.2, 1999]

Despite her self-proclaimed confused state of mind, [Commentary: No Suffering in

Robert Latimer -- Nov. 28, National Post] Christie Blatchford clearly has no moral

qualms in engaging in a public character assassination of Robert Latimer. In light of the

overwhelming evidence to the contrary -- evidence that "establishes that he is a caring

and responsible person and that his relationship with Tracy was that of a loving and

caring parent" [Judge Noble] -- her suggestion that Latimer had no more compunction in

killing Tracy than in killing a pig defies comprehension.

She mistakes Latimer's blunt honesty and moral courage in refusing to allow Tracy to

continue to be pumped full of drugs and subjected to a never-ending series of

decreasingly effective surgical operations like a human guinea pig as stoic indifference to

her welfare. Nothing could be further from the truth. Sometimes people need help to live

24

and sometimes they need help to die. Tracy, victimized by her biology, needed and

received both.

That Robert loved his daughter more than he feared the judicial system speaks to his

moral courage -- a fact that, unlike Blatchford, the vast majority of Canadians have no

difficulty in grasping. Blatchford's inability to grasp this simple truth discredits her, not

Robert's character nor the justice of what he tragically had to do on Tracy's behalf.

Note: Latimer is not asking for mercy; he is asking for justice, for justice tempered with

mercy

Note: As noted in my article, "it is not the law that determines what is morally right;

be interpreted and applied. This is why blind obedience to the law is morally

objectionable." Those who view `the law' as if it were something written in stone,

unchanging and absolute, forget that the validity of `the law' lies in the morality of the

people who created it, constantly revise it, and live by it.