Flexibility to life sentences needed

Canada lacks ‘diminished capacity’ defence for unstable people like Jayme Pasieka

First-degree murder is one of the most serious crimes you can commit in Canada: a planned and deliberate killing, a premeditated murder in cold blood. The mandatory minimum sentence is life in prison with no chance of parole for at least 25 years.

Travis Baumgartner, the Edmonton armoured car guard who killed three of his co-workers and ran off with the loot, fit the bill perfectly. He was sentenced to life in prison with no chance of parole for 40 years.

Then there’s Douglas Garland, the bitter Calgary businessman convicted last month of the murders of his former business partner Alvin Liknes; Likne’s wife, Kathy; and their five-yearold grandson, Nathan O’Brien. Garland hatched a careful plot to kidnap and kill the couple and dispose of their bodies. Nathan was collateral damage, but Garland killed the boy just as remorselessly. Garland was sentenced to life in prison with no chance of parole for 75 years.

But while Baumgartner and Garland are textbook first-degree murderers, the case of Jayme Pasieka is not so simple. Pasieka was found guilty by a jury last Friday of two counts of firstdegree murder in the deaths of Fitzroy Harris and Thierno Bah, his co-workers at a Loblaw warehouse in west Edmonton. Pasieka went on a rampage, killing Harris and Bah, and wounding four others.

Pasieka committed his crime in front of dozens of witnesses. He admitted on the stand he meant to kill the two men. But Pasieka is a diagnosed schizophrenic, with a documented history of mental health problems.

On the day in question, though, he wasn’t floridly psychotic, to use the psychiatric term. He wasn’t hallucinating. He didn’t think that the men he was stabbing were demons. His thinking was organized. He went to West Edmonton Mall to buy knives. He clocked in at work. He later testified he planned his spree to get help for his sickness.

In Canada, you can be deemed “not criminally responsible” if you are suffering from a mental disorder that renders you incapable of appreciating the nature and quality of your actions, or from knowing right from wrong. Pasieka didn’t meet that test.

His lawyer, Peter Royal, argued his client was guilty of manslaughter, because he couldn’t form intent. Since Pasieka’s intent seemed crystal clear, the jury rejected that argument.

But there’s no “diminished capacity” defence in Canadian law, even for people who are seriously, demonstrably, mentally ill.

“It’s an inflexible regime,” says Peter Sankoff, a professor of criminal law at the University of Alberta. “You end up with provisions that are inequitable by design.”

“This is the type of case that shows the problem with the black-and-white situation as it exists,” says Peter Carver, a U of A law professor with a particular interest in mental health law. Other countries recognize a diminished capacity defence in criminal law, he says. But in Canada, you can end up with a life sentence for someone who might actually respond well to medical treatment.

“Not all murderers are created equal, but the Criminal Code does not allow you to deviate from that,” says Steve Penney, who also teaches criminal law at the U of A. “It’s a binary outcome. Either you’re utterly undeserving of punishment or you’re fully responsible.”

It’s starkly unfair — especially given how hard it is to access proper psychiatric care. First, we deny people access to effective treatment, then we punish them when their sickness makes them violent, making no allowances for their illness.

Pasieka did a tragic, terrible thing. He killed two innocent men, immigrants who’d come to Edmonton seeking hope and opportunity. He terrorized his workmates, leaving survivors with lasting trauma. He knew it was wrong. He deserves to be punished. We deserve to be safe.

But to lump him in the same category as Baumgartner or Garland is a false moral equivalency.

The jury has rendered its verdict. Pasieka can’t apply for parole for at least 25 years. It’s now up to the judge to decide how much longer than that he may have to wait.