Murder Is Never Compassionate: Jim Derksen Speaks Out

by Jim Derksen

(27 November 1997) — Manitoba law professor Barney Sneiderman has developed a model statute which would reduce murder charges to manslaughter on the ground of compassionate motivation. The starting point for this model is the actual state of mind of the accused.

The accused must have killed to end the suffering of the victim. As a safeguard, albeit a dubious one, the onus to prove compassion would be on the accused and the test would be a preponderance of evidence, the test of civil law, and not the criminal law test of beyond a reasonable doubt. This proposed mechanism would surely allow more murderers, despite reasonable doubt remaining about their motivations, to evade the legal consequences of murder. Is this an alternative our society should choose?

A second, and still less reassuring, safeguard offered by Sneiderman in his model statute is the "ordinary person test" by which the jury must validate the accuser's defense of "compassion".

It is helpful, in this regard, to reflect on the concept of the "ordinary person". The weakness of the "ordinary person" test is well know in other circumstances. We all know that half a century (and less) ago; ordinary (male) persons were reluctant to convict men of assaulting their wives, despite obvious proof they had done so and the existence of laws against it; ordinary (white) persons were reluctant to acquit black men accused of raping white women, and reluctant to convict white men accused of raping black women in the southern USA, despite facts to the contrary; and so on. It is easier to see the inherent weakness in the "ordinary person" test from a historical perspective.

If we are lucky, it will be easier to see the problem of this test in regard to "compassionate homicide" of persons with disabilities fifty years from now, than it is presently. But then again we don't seem to have learned that lesson from the "holocaust" for people with disabilities in Europe under the Nazis, in which Hitler also cited compassion as his motivation.

Now we must turn to how the "ordinary person" test could impact on cases affecting persons with disabilities. Very few persons with obvious and significant disabilities are ever selected for jury duty. Blind and deaf persons are often considered ineligible for jury duty. Juries are made up predominantly of people without disabilities.

It is the defining experience of most people I know who live with visible disabilities, that "ordinary persons" will tell us they would rather be dead than be disabled as we are. The ways of telling us are various. Sometimes, indirectly, it is that we are much more courageous than they themselves are (to keep living with such a disability), or they may congratulate us for smiling or being cheerful; sometimes we are told directly, by "ordinary persons" that they would simply kill themselves rather than live with our disabilities. Ask almost any reasonably thoughtful and honest person with a significant, visible disability about this. When you do you will begin to understand why the "ordinary person" test to confirm the validity of "compassionate homicide" does not present itself to us as a credible safeguard. The public's reaction to Tracy's planned surgery illustrates how "ordinary persons" can misinterpret occurrences in the life of a person with a disability.

Many thousands of ordinary persons have hip replacement operations every year in Canada. Yet many of them, their families and friends fail to recognize the surgery planned to relieve Tracy Latimer's chronic hip dislocation as essentially the same common surgical procedure. Instead they recoil at the image evoked by Robert and Laura Latimer when they describe this surgery as "cutting off the top of her leg". In hip replacement surgeries it is common to cut off the top of the leg bone and replace it with stainless surgical steel so that the patient can walk on that leg again. Does the fact that Tracy never would walk, in any case, and so needed only the first part of the surgery and not the steel replacement, make the operation planned to relieve her pain so much different and worse than common hip replacement surgery? Why is the "ordinary person" so easily deceived by Latimer's description?

Robert Latimer says he thought of the surgery offered as "mutilation" that would make her leg "forever floppy." These cosmetic concerns, in my view, as a person with a disability, are of little consequence; in Robert Latimer's view these concerns represented a fate worse than death, and justified his murder of Tracy. Who is an "ordinary person?" Is Robert Latimer? Am I? Are the jurors?

About 40 years ago when I was about the same age as Tracy at the time of her spinal surgery, I had a series of similar surgeries. When I think back to the time of these surgeries, for myself and many others with disabilities, there was much uncertainty about whether, and for how long, we would survive; and about the quality of life we would have. I know that there were those who questioned if death were better than the alternative, rather than continuing the struggle to overcome our physical adversities. These were difficult operations and I recall the long period of recovering from each operation as a time of pain. I also recall the difficulty for myself and my family of having to live in a body cast for about two years due to these surgeries.

Neither my family nor myself ever regret the decisions to have these operations. They accomplished their purpose, and partly due to them, I have been able to live a full and generally healthy life. I am very thankful my family and others did not lose hope and succumb to despair in those times. If there were another epidemic of severe disablement, as the polio epidemic of 1953 was, and if the prognosis for those effected were as unclear as it was for us then, I wonder if our society would again risk investing in our lives? Or would euthanasia be the option chosen? Again the question is who will be the "ordinary persons"; will they be people like my parents, or will they be people like the Latimers?

The rule of law, it seems to me, at least in part serves the function of putting in writing that which, on reflection, we need to keep safe from the "ordinary person's": erroneous ideas, cultural values and excesses of any historical moment. Professor Sneiderman's idea of an "ordinary person's" safeguard in his model statute serves to dilute this function of the rule of law and therefore must be rejected.