Mercy Killer Guilty BUT “They Shoot Horses, Don’t They?” (a reaction to the David Hunter decision)

>>Mercy Killer Guilty BUT “They Shoot Horses, Don’t They?” I say, “Since Carter, new legislation, Canada should adjust the law on euthanasia.” << A NOTE FROM ALLAN GOLD– I’m a lawyer Montreal, elder law attorney, passionate about the well-being of seniors. As you know, I’ve started a new series of articles on Elder law. David Hunter could be every man even you and me. I’m today taking another look at mercy killing in Canada.<<

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Mercy Killer Guilty BUT “They Shoot Horses, Don’t They?”

(a reaction to the David Hunter decision)

Gold’s Legal Minute*GLM*
By Allan Gold lawyer Montreal and elder law attorney
Vol. 14, #6 – July 31, 2023

OPENING
Dateline PAPHOS, Cyprus July 31, 2023: “David Hunter freed from Cypriot court for manslaughter after time served – David Hunter suffocated his sick wife in an assisted suicide in 2021” This is the story behind the headline. On July 21, 2023, a Cyprus court found this 76-year-old Brit, guilty of manslaughter. A three-judge bench rendered an unanimous decision. Its findings can be summarized as follows: A. In December 2021, Hunter killed his 74-year-old wife, Janice, but the prosecution didn’t prove beyond reasonable doubt that the man committed premeditated murder. B. Contrarily, it was a spur-of-the-moment decision to suffocate his wife, then sitting in a recliner. C. Apparently, Hunter snapped as he could no longer stand seeing her weeping in pain. D. “Janice Hunter feared her blood ailment would develop into full-blown leukemia and had repeatedly pleaded with her husband to take her life because she didn’t want to share the fate of her sister who died of the disease.” 2

While this is an instance of wedding bells leading to alarm bells, it’s not conjugal (domestic) violence. Instead, this was a mercy killing. Most assuredly. it was an excruciating dilemma for this husband to choose between two undesirable alternatives: kill his wife or do nothing and allow her to suffer terribly. It occurs to me that this is a situation of “Heads you don’t win, Tails you lose” – In other words, you can’t win – it’s lose lose no matter what you do. This sad story first calls to mind, “They Shoot Horses, Don’t They?” (-that’s the title of a drama referring to the practice of shooting a horse after it has broken a leg to put it out of its misery.) But I know that while we’re supposed to be empathetic, mercy killing of people is not legally possible. Here’s a quick backgrounder.

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“In any moment of decision, the best thing you can do is the right thing, the next best thing is the wrong thing, and the worst thing you can do is nothing.” ― Theodore Roosevelt 3

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MERCY KILLING

It’s defined as “the term that is given to the terminating of a person’s life that will end the pain and suffering.” 4 A synonym is euthanasia.

Canadian Law – R. v. Latimer [1997] 1 S.C.R. 217

While Canadian law in this area doesn’t exactly coincide with that of Cyprus, it comes pretty close to it. Let’s revisit the leading case on point in Canada. Such is R. v. Latimer [1997] 1 S.C.R. 217 Saskatchewan farmer Robert William Latimer said he believed a pending operation would only worsen the agony of his 12-year-old daughter, Tracy, born with severe cerebral palsy. She was tortured by chronic pain and suffered. Latimer, the so-called “Mercy Killer,” said he killed his daughter out of love. In 1993, Latimer put her into the cab of his pickup with the motor running and subjected her to carbon monoxide poisoning. The accused admitted his acts but said that he wanted to put his severely ill child out of her misery.

Lower courts: In the lower courts, the defense argued that Mr. Latimer had been deprived of prompt information regarding Legal Aid and had been arbitrarily detained. On this basis, the defense attempted to render Latimer’s statements inadmissible. The court of first instance and Saskatchewan Court of Appeal rejected this claim. Nevertheless, a new trial was ordered on a separate claim that the RCMP had interfered with the jury by administering to some prospective jurors a questionnaire regarding their beliefs on, among other things, euthanasia. It was on this basis that the Court of Appeal allowed Latimer’s appeal.

Supreme Court: The S.C.C. gave a narrow reading to the common law defense of necessity. To be successfully invoked, the Court held that an accused must prove three conditions: a) Imminent peril or danger; b) No lawful alternative; and c) Proportionality between the harm inflicted and the harm avoided. First, the Court held that Mr. Latimer was not in peril or danger, nor was Tracy, who could have undergone additional surgery. Second, Latimer had at least two other (admittedly unpleasant) and other pain management options, notably the placement in an institution or struggling on as before. Third, as regards proportionality, the Court left open the question whether it could ever be applied in a homicide case. In any event, it found that the harm inflicted was “immeasurably more serious” than his daughter’s pain resulting from another operation, for which her father had consistently withheld his permission. Hence, the High Court expressed admiration for Latimer’s devotion to his daughter during the harrowing years whilst she was alive, but it said his decision to kill her was a grave error in judgment that carries undeniable consequences. It clearly ruled that a so-called “mercy killing” is murder. The Supreme Court of Canada showed no mercy to Robert Latimer. It found unanimously that he must serve at least 10 years in prison for the murder of his severely disabled daughter.

Sidelight – Malette v. Shulman (1990), 72 O.R. (2d) 417 (C.A.)

I must here and now go off on a tangent and cite the Malette v. Shulman case. It’s about consent. The court ruled that “While the interest of the state in protecting and preserving the lives and health of its citizens may override the individual’s right to self-determination in order to eliminate a health threat to the community, it does not prevent a competent adult from refusing life-preserving medical treatment.” This case is relevant because the patient’s desire was held to be superior to the viewpoint of the state.

Nota bene – David Hunter

With David Hunter, the three judges had a homicide case. They found no premeditation so they lowered the charge to manslaughter. They recognized it wasn’t a run-of-the-mill murder. They determined that Hunter was beside himself in anguish and he completely lost it. The Court found him guilty but released him on July 21, 2023. It wasn’t a ‘Get out of Jail Free Card.’ Instead, it was in consideration of time served. While there was jail time, it was much less than Latimer. In a way, mercy killing was now in a category of its own. For me, this is a watershed moment.

Canadian Law Landscape

It’s noteworthy that Canada’s law has changed since the Latimer judgment. There are new statutes on the books. On June 5, 2014, Quebec enacted the so-called “right-to-die” law. Bill 52, an Act respecting end-of-life care, passed in a free vote in the National Assembly by 94 votes to 22. Quebec thusly became the first Canadian province to legalize medically assisted death. On May 30, 2016, the Canadian Parliament passed Bill C-14, An Act to amend the Criminal Code and to make related amendments to other Acts (medical assistance in dying). Its acronym is MAiD. Kindly note that MAiD commenced by covering terminal illnesses. In May 2017, Ontario’s Medical Assistance in Dying Statute Law Amendment Act, received Royal Assent and came into force. and there is the Supreme Court judgment in the Carter case. (Carter v Canada (AG), 2015 SCC 5) “In Carter, the court found that physician-assisted suicide could be sought only by a competent adult person who: i) clearly consents to the termination of life; and ii) has a grievous and “irremediable medical condition” that causes enduring suffering that is intolerable to the individual in the circumstances of his or ..” (N.B. It bears repeating that in my opinion, we’ve gone down a black hole with the Carter judgment.)

Like the court in Latimer, the Cypriot court found Hunter guilty, but they tempered the sentence substantially.

COMMENTARY
David Hunter did something wrong. He killed somebody. He must be held accountable. I get it. But I ask myself, “What would happen if there’s now a case like this in Canada?” Given Carter, new legislation, the Canadian legal landscape has shifted since Latimer. As a result, a Canadian in a predicament like Hunter, would be able to assist the loved one’s access to the statutory mechanisms relative to “medically assisted death” and “physician-assisted suicide.” But should this Canadian take matters into his/her own hands, we then would have an accused like Hunter. So what should we do?

1. Let’s pull back the right to die and return the law to one reflecting the doctrine of the sanctity of life whereby bodily human life is an intrinsic good and it’s always impermissible to kill an innocent human. In such way, the law will again have rules to live by, which are clear and principles of law consistently applied. However, while I personally like this option, the journey down this road will be long and arduous. In any event, it will most assuredly take much time, which despairing people don’t have.

2. Let’s remake the law. Since Canadian laws about end-of-life has changed, I submit that we should modernize the handling of mercy killing under the criminal code. I have several ideas.

2.1 We can contort the law one more time to legalize murder in those instances meeting the criteria under Carter: “when acquiescing to the demands of the victim who has a “grievous and “irremediable medical condition” that causes enduring suffering that is intolerable to the individual.” However, I ABHOR this method. I recognize that such shall be another twist and turn in the descent down the ‘slippery slope’ to nowhere good.

2.2 We can create a new category in the Criminal Code (R.S.C., 1985, c. C-46) – at classification of murder s. 231 (1) Murder is first degree murder or second degree murder. Here’s my proposition.

2.2.1 Considering that there already exists different categories of murder, the addition of another is not beyond the scope.

2.2.2 Considering Art. 1407 in the Civil Code of Quebec, there’s some give in the law. This article reads as follows. “1407. A person whose consent is vitiated has the right to apply for annulment of the contract; in the case of error occasioned by fraud, of fear or of lesion, he may, in addition to annulment, also claim damages or, where he prefers that the contract be maintained, apply for a reduction of his obligation equivalent to the damages he would be justified in claiming. 1991, c. 64, a. 1407. So in contract law, a co-contractant can seek the cancellation of contract due to error brought on by fear.

2.2.3 Considering that in the field of wills & estates, a will can generally be ruled invalid if a claimant can prove the testator was under undue influence at the time of the will-writing. So the effect of undue influence on the validity of a will is illegality.

2.2.4 Considering the foregoing, I ask, “Can it be said that Hunter made a mistake, such brought on by the fear of continued suffering by his wife? I think such is possible. Please know that I’m not making light of the fact that Hunter took a life, but there was no mens rea! It was near involuntary as it was impulsive. It can also be said that there was an error in judgment. Here too, I think the person making the error should be relieved SOMEWHAT of the legal consequences flowing therefrom. In addition, his wife wanted to die and made it known to her husband on numerous occasions. But more, it’s a fact that his wife “repeatedly pleaded with her husband to take her life.” For me, that’s undue influence if I ever saw it. If a document coming into being as a result of undue influence can be undone, so too should an act brought on by the victim, pressing the buttons of the mercy killer. While we can’t undo the death, we can treat the perpetrator differently than a ‘garden variety’ murderer.

2.2.5 Considering it might be argued that in a perverse manner, a mercy killer is fulfilling his/her “Good Samaritan” obligation (-Art. 2 of Charter of human rights and freedoms (C-12 )) Likewise, it might be said that the mercy killer is satisfying his/her obligation to act re an aged loved one (-Art. 48 of Charter of human rights and freedoms (C-12 )).

2.2.6 Considering there’s the notion of being ‘diligent,’ doing things in a ‘timely’ manner. Diligent means “to be concerned, eager to carry out a responsible act, untiring” 5 There’s also the notion of timeliness. Timely is defined as “1: coming early or at the right time” 6 Accordingly, the need to be diligent and act in a timely fashion causes a person not to wait and procrastinate, but do it now!

2.2.7 Consequently, I propose that Parliament consider making mercy killing a distinct crime. Maybe we can call it ‘murder by mercy killer.’ If so, we can affix thereto a sentence especially suited to such a crime.

I know I’m going against the grain. I’m trying to find justice in a place where it alludes us. The David Hunter case illustrates this to the Nth degree. The circumstances are exceptional. I’m extrapolating in part from civil law, but these principles are part of our law and the criminal law side might want to consider them when dealing with an extraordinary situation such as this,

TO BE CLEAR, I’M NOT PROPOSING THE LEGALIZATION OF MERCY KILLING. NOR AM I PROPOSING A WIDE NET. INSTEAD, THIS MURDER CATEGORY MUST BE STRICTLY LIMITED TO THE CRITERIA AS DEFINED IN CARTER. NOR AM I SUGGESTING AN ESCAPE VALVE WHEREBY A PERPETRATOR CAN GET AWAY ‘SCOTT FREE.” INSTEAD, I’M SUGGESTING THAT JUDICIAL CONSIDERATION BE GIVEN TO THE SPECIAL CIRCUMSTANCES OF THE CRIME AND THAT A FITTING SENTENCE SHOULD BE APPLIED THERETO!

CONCLUSION

The court decision in the David Hunter case shines a light on the time leading up to a person’s death. I’m shining it on something a Canadian might consider doing. In Canada as of late, we often hear the phrases, “good death,” “right to die” and “dying with dignity” – they’ve become slogans which have creeped into our law. And now we have “medically assisted death” and “physician-assisted suicide.” Their pith and substance is that extinguishing human life is legal. The Court in Carter recognized it in certain specific circumstances, but the application has grown and is continuing to expand. It prompts me to again say that we’ve gone way too far and need to find our way back from the abyss. I reiterate that my first choice is to put the ‘Carter’ genie back in the bottle and return to the Rodriguez judgment of the Supreme Court.

Failing this optimum correction and taking into account the current status of the law, I think the legislative provisions concerning mercy killing needs an overhaul.We need to be ready for the next case which we will have to confront. Otherwise, we’ll have to find justice for someone thinking, “(You’re) damned if you do and damned if you don’t.”

Allan J. Gold www.allanjgold.com

P.S. Here’s something to think about:“Nobody thinks that they’re evil or bad, they think that they’re doing the right thing.” ― Andrew McCarthy 7

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NOTICE – CAUTION –DISCLAIMER.

The material provided herein is of a general nature, strictly for informational purposes. The interpretation and analysis is not to be misapplied to a personal situation with a particular set of facts. Under no circumstances, are the herein suggestions and tips, intended to bring a reader to the point of acting or not acting, but instead, the hope is that they are to be a cause for pause and reflection. It is specifically declared that this content is not to be a replacement of, or a substitution for, legal or any other appropriate advice. To the contrary, for more information on these presents, related subjects or any other questions, it is the express recommendation of the author that everyone seek out and consult a qualified professional or competent adviser.

Image by ha11ok from Pixabay
https://apnews.com/article/cyprus-briton-ailing-wife-manslaughter-david-hunter-6bbc1ca35ad888ad16c85573e99a5bfa
https://www.brainyquote.com/topics/the-right-thing-quotes
https://thelawdictionary.org/mercy-killing/
https://thelawdictionary.org/diligent/
https://dictionary.law.com/Default.aspx?selected=2127

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