Monday, 2 July 2012

EUTNANASIA: Should it now be legal in Canada? (Part 1)

In 1973 while I was in my third year of studying criminology at the University of Toronto, I arrived late in one of my classes and all the topics in which we were to write a paper on were all chosen by my fellow students and the only one left was on the subject of euthanasia. I had no real idea as to just how difficult writing a paper on that subject would be. In any case, as I delved into the subject of euthanasia, I discovered just how difficult it is for everyone including terminally ill persons, their doctors and their family members to deal with euthanasia and accept it as one way to save terminally ill persons from further pain. I was at that time a member of the Corrections Committee of the Anglican Church and I was asked to write an opinion on that subject and submit it to the Church. In November of that year, an international medical journal called ‘Modern Medicine’ published my paper and I was later told that it was published in a number of countries around the world. That same year, it was published in a law journal and at that time, the Toronto General Hospital in Toronto invited me to give a lecture on that subject to a large number of the hospital’s doctors and nurses. Writing on that topic isn’t as difficult nowadays as it was then however the subject is still one that is widely discussed and to some people, a contentious issue.  In this piece, I am going to submit to my readers the second of three court cases which took place in Canada that dealt with euthanasia. But first, I will briefly explain what euthanasia is.  

Legislation on euthanasia in Canada distinguishes between passive and active euthanasia, although the active procedure remains illegal. Passive euthanasia can include starvation or de-hydration, or withholding any life-preserving procedures. Sometimes the patient will sign a “Do Not Resuscitate’form and on occasion, family members have also signed such forms when their stricken loved one cannot do it.  Active euthanasia comes about when someone other than the patient brings about the death of the patient generally with the patient’s blessing.

In recent years, several public cases of active euthanasia have re-opened the debate on what Canadian society considers to be socially and morally acceptable in terms of euthanasia. Incidentally, euthanasia is also called ‘mercy killing’.

And now, the first case.

Robert Latimer

Like all cases in which euthanasia is invoked, this case is a particularly sad case.  Robert’s daughter, Tracy Latimer was born in the province of Saskatchewan on November 23, 1980. An interruption in Tracy's supply of oxygen  during her birth caused her to thereafter suffer from cerebral palsy, which in her case led her to severe mental and physical disabilities including seizures that had to be controlled with seizure medication. She had little or no voluntary control of her muscles, and could not walk or talk. It is obviously a horrible way to live one’s life.

Tracy had a serious disability, but she was not terminally ill. However, her doctors anticipated that she would have to undergo repeated surgeries and her breathing difficulties had increased, but her life was not in its final stages. Tracy enjoyed music, bonfires, being with her family and going to 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.

Unfortunately she suffered five to six seizures daily, and it was thought that she experienced a great deal of pain which is conceivable since seizures places strain on the muscles of people suffering from seizures.  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 gastric feeding tube which is a tube inserted through a small incision in the abdomen and then directly into the stomach and is used for long-term enteral nutrition. It was an option that would have improved her nutrition and health, and that might also have allowed for more effective pain medication to be administered, but the Robert and his wife rejected this option because the Latimers were told that this procedure would cause pain to their daughter.  

Further, 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 Robert’s wife, Laura Latimer, further surgery was perceived as mutilation. It is beyond me as to how that woman could arrive at that conclusion.

In any case, Robert (on his own according to his later admission) decided to end his daughter’s life so that she wouldn’t suffer any longer. He carried his daughter 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 which incidentally isn’t an easy way to die. Carbon monoxide is colourless, odorless, and tasteless, but highly toxic. It combines with hemoglobin to produce carbonoxyhomoglobin.  A level of 50% or more carboxyhemoglobin will result in seizure, coma, and fatality. Tracy would have experienced symptoms o fheadache, nausia, volmiting, dizziness, fatigue and of course, extreme difficulty in breathing. Eventually she would have passed out and then gone into a coma and finally died. All the time she was dying, she wouldn’t have known what was causing her to die and further, she wouldn’t have known why her father didn’t remove her from the cab of his truck. It was a very sad ending of Tracy’s life but I would be less than honest if I didn’t say that in my opinion, those moments must have been extremely excruciating for Robert also.

Robert at first maintained that Tracy had simply passed away in her sleep, but later he confessed to having taken her life. Carbon monoxide poisoning would have been the obvious cause of death because it causes the blood to turn to cherry red in colour and carbon monoxide poisoning would have been an obvious sign of the cause of death when the doctor’s looked at her skin. Robert was later found guilty of second degree murder and sentenced to life imprisonment without parole with eligibility for parole after serving a minimum of 10 years in prison. The Saskatchewan Court of Appeal upheld Robert’s conviction and sentence; however the Supreme Court of Canada ordered a new trial.

During the second trial, Robert’s defence counsel asked the trial judge for a ruling, in advance of his closing submissions, on whether the jury could consider the ‘defence of necessity’. The ‘defence of necessity’ is narrow and of limited application in criminal law. The accused must establish the existence of the three elements of the defence. First, there is the requirement of imminent peril or danger. Second, the accused must have had no reasonable legal alternative to the course of action he or she undertook. Third, there must be proportionality between the harm inflicted and the harm avoided. The trial judge told counsel that he would rule on that form of defence after the closing submissions, however the trial judge later ruled that the defence was not an option available to Robert.

In the course of its deliberations, the jury sent the trial judge a note inquiring, in part, whether it could offer any input into sentencing. The trial judge told the jury it was not to concern itself with the penalty. He added: “It may be that later on, once you have reached a verdict, you—we will have some discussions about that.” After the jury returned with a guilty verdict, the trial judge explained the mandatory minimum sentence of life imprisonment for second degree murder, and asked the jury whether it had any recommendation as to whether the ineligibility for parole should exceed the minimum period of 10 years. Some jury members appeared upset, according to the trial judge, and later sent a note asking him if they could recommend less than the 10‑year minimum. The trial judge explained that the Crinminal Code provided only for a recommendation over the 10‑year minimum, but suggested that the jury could make any recommendation it liked. The jury recommended one year before parole eligibility. The trial judge then granted a constitutional exemption from the mandatory minimum sentence, sentencing the accused to one year of imprisonment and one year on probation. The Court of Appeal affirmed the conviction but reversed the sentence, imposing the mandatory minimum sentence of life imprisonment without parole eligibility for 10 years.

Robert then appealed the Court of Appeal’s decision and the case ended up in the Supreme Court of Canada.

On the subject of the defence of necessity, the Supreme Court said in part;

“The first requirement is imminent peril. It is not met in this case. The appellant does not suggest he himself faced any peril; instead he identifies a peril to his daughter, stemming from her upcoming surgery which he perceived as a form of mutilation. Acute suffering can constitute imminent peril, but in this case there was nothing to her medical condition that placed Tracy in a dangerous situation where death was an alternative. Tracy was thought to be in pain before the surgery, and that pain was expected to continue, or increase, following the surgery. But that ongoing pain did not constitute an emergency in this case. We are dealing not with an emergency but with “an obstinate and long-standing state of affairs”. Tracy’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. In fact, Tracy’s health might have improved had the Latimers not rejected the option of relying on a feeding tube. Tracy’s situation was not an emergency. The appellant can be reasonably expected to have understood that reality. There was no evidence of a legitimate psychological condition that rendered him unable to perceive that there was no imminent peril. The appellant argued that, for him, further surgery did amount to imminent peril. It was not reasonable for the appellant to form this belief, particularly when better pain management was available.”

“The second requirement for the necessity defence is that the accused had no reasonable legal alternative to breaking the law. In this case, there is no air of reality to the proposition that the appellant had no reasonable legal alternative to killing his daughter. He had at least one reasonable legal alternative: he could have struggled on, with what was unquestionably a difficult situation, by helping Tracy to live and by minimizing her pain as much as possible. The appellant might have done so by using a feeding tube to improve her health and allow her to take more effective pain medication, or he might have relied on the group home that Tracy stayed at just before her death. The appellant may well have thought the prospect of struggling on unbearably sad and demanding. It was a human response that this alternative was unappealing. But it was a reasonable legal alternative that the law requires a person to pursue before he can claim the defence of necessity. The appellant was aware of this alternative but rejected it.”

“The third requirement for the necessity defence is proportionality; it requires the trial judge to consider, as a question of law rather than fact, whether the harm avoided was proportionate to the harm inflicted. It is difficult, at the conceptual level, to imagine a circumstance in which the proportionality requirement could be met for a homicide. We leave open, if and until it arises, the question of whether the proportionality requirement could be met in a homicide situation.”

“Assuming for the sake of analysis only that necessity could provide a defence to homicide, there would have to be a harm that was seriously comparable in gravity to death (the harm inflicted). In this case, there was no risk of such harm. The “harm avoided” in the appellant’s situation was, compared to death, completely disproportionate. The harm inflicted in this case was ending a life; that harm was immeasurably more serious than the pain resulting from Tracy’s operation which Mr. Latimer sought to avoid. Killing a person — in order to relieve the suffering produced by a medically manageable physical or mental condition — is not a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.”

“We conclude that there was no air of reality to any of the three requirements for necessity.” unquote

Robert Latimer began serving his sentence on January 18, 2001 and was incarcerated at William Head Institution, a minimum-security facility located 30 kilometers west of Victoria, B.C  on Vancouver Island. While in prison, he completed the first year of carpentry and electrician apprenticeships.

On December 5, 2007 Robert Latimer requested day parole from the National Parole Board in Victoria, BC. He told the parole board that he believed killing his daughter was the right thing to do. The board denied his request, saying that Latimer had not developed sufficient insight into his actions, despite psychological and parole reports that said he was a low risk to reoffend unless he was put into the same situation again

In February 2008, a review board overturned the earlier parole board decision, and granted Latimer day parole stating that there was low risk that Latimer would re-offend. Latimer was released from William Head Prison and began his day parole in Ottawa in March of that year. That meant that he would live in a half-way house operated by Corrections Canada. Robert Latimer later granted full parole. The loosening of Latimer's parole restrictions took effect on December 6, 2010.

As you can see, Robert’s active role in ending his daughter’s life couldn’t be justified under the defence of necessity.

It was a very sad case as all cases in which euthanasia is invoked are but although Robert thought of his deed as a form of euthanasia, in actual fact, it was not. Just as his jury, the Court of Appeal and the Supreme Court ruled, it really was murder, although second degree murder in which there is no doubt in my mind, Robert suffered terribly when he committed it. Unfortunately for him, there couldn’t have been any other verdict.

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