January 16, 2002

The Registrar of the Supreme Court
301 Wellington Street
Ottawa, Ontario
K1A 0J1

Madam or Sir:

RE: The Case of Robert Latimer

I wish to support Mr. Latimer’s request that the Supreme Court reconsider their decision, which was announced January 18, 2001, that he must serve a sentence of life imprisonment as prescribed by the legislation requiring mandatory minimum sentences for those convicted of first or second degree murder. You may already know my concerns if you have a copy of a letter I wrote to Mr. Borovoy of CCLA on December 5, 2001. This letter makes the same points more succinctly.

The Court disallowed the defense of necessity for both legal and medical reasons. My comments are about the latter.

Pages 3 and 4 of the report reads as follows:

“T’s proposed surgery did not pose an imminent threat to her life, nor did her medical condition. It was not reasonable for the accused to form the belief that further surgery amounted to imminent peril, particularly when better pain management was available. The accused had at least one reasonable legal alternative to killing his daughter: he could have struggled on, with what was unquestionably a difficult situation, by helping T. to live and by minimizing her pain as much as possible or by permitting the insertion of a feeding tube or by relying on a group home. Leaving open the question of whether the proportionality requirement can ever be met in a homicide situation, the harm avoided in this case was, compared to death, completely disproportionate. Killing a person - in order to relieve the suffering produced by a medically manageable physical or mental condition - is no a proportionate response to the harm represented by the non-life-threatening suffering resulting from that condition.”

COMMENTS

1. This is quite different from the evidence given by Dr. Anne K. Dzus, the well qualified pediatric orthopedic surgeon who had looked after Tracy for many years. Responding to a question about he possible use of stronger pain-relieving drugs, her evidence at Mr. Latimer’s first trial was as follows:-

“Tracy had severe pain. To control it with drugs would mean using fairly positive drugs. She already was on anticonvulsant, antiepileptic medications to control her seizures. Combining drugs can have side effects. One can add on the other. She already in the past was having difficulty with swallowing. We know that she had difficulty clearing some secretions from her lungs, nose and that these children can gag on their own secretions. If you depress, by using strong drugs, some of these very primitive reflexes then you put her at risk of aspirating, getting the contents of stomach food into her lungs and ending up aspirating (aspiration) pneumonia, ending up very sick, depressing the respiratory function that already - - … (The lawyer finished for her) … “in actual fact might well conceivably kill her”. Dr. Dzus added: “It may be a suitable the short term, under a very controlled environment, solution but not long term.”

(Dr. Dzus was excused from giving evidence at the second trial because of her own medical problems, but her testimony at the first trial was read into the evidence at the second.)

2. Several “interveners” who took up much of the Court’s time included some purporting to represent “the disabled” and others representing fundamentalist religious groups. Their representations were so similar that they might have been drafted on the same word processor, and probably were.

One of the most vindictive critic of the Latimers is a Winnipeg lawyer, Mr. Mitchell. (I have heard him several times on the radio.) He may know something about law, but has some very bizarre ideas about medical matters.

I think he was largely responsible for convincing the Court that a pain-relieving drug would become miraculously more effective if given by a stomach tube.

I want to comment about that:-

(a) The only pain relieving drug Tracy was allowed was liquid Tylenol which is easier to swallow than pills. Two teaspoonfulls of that is equivalent to one pill of full-strength Tylenol; and adults or teenagers are given one or two pills for a headache or sore throat. It would give no relief for severe pain.

(b) It is almost impossible to get a nasogastric tube down the right way in a patient who cannot cooperate by swallowing at just the right time. And insertion of a tube into the stomach through the abdominal wall (gastrostomy) requires a surgical operation.

(c) Either kind of tube can be easily pulled out by a restless child waving her arms about. If Tracy had a tube in, she would have to be wrapped up to restrain such movement at all times.

In summary: Mr. Mitchell’s medical fantasies make no sense, but the Supreme Court Justices seem to have believed them. And only two of the intervener groups appear to have any medical connection; the Christian Medical and Dental Society and the Physicians for Life. But there is no evidence that any qualified doctors testified at the Supreme Court hearings.

WHAT THEY SHOULD HAVE DONE

The Learned Justices of the Supreme Court should not have allowed themselves to be swayed by such inaccurate and obviously biased opinions on a serious medical matter. They should have sought the opinion of a completely independent medical advisor; someone experienced in pain management, well informed about the actions and interactions of drugs, and with experience in caring for severely handicapped and suffering children like Tracy Latimer. There are such people. The Justices were remiss in not consulting them. They should do so now.

FURTHER SUGGESTIONS

The Justices’ concluding statement suggested that Mr. Latimer might appeal for Executive Clemency. They should now investigate the obstacles that are encountered in such an application. Please refer to the article by Mr. Alan Borovoy of CCLA in the Globe and Mail of January 3, 2002.

They should also enquire whether Mr. Latimer was one of the unfortunate people who were caught up by the draconian edict announced by the Solicitor General, Mr. Lawrence MacAulay M.P. (also in January, 2001); he decreed that all persons convicted of first or second degree murder must serve the first two years of their sentences in “maximum security”. I do not know about that, but it could explain some subsequent events. And I do not think the Justices of the Supreme Court would approve of that policy.

Yours sincerely,

D. B. Stewart MD, FRCSC