What about protecting innocent people?
MAKING IT HAPPEN WILL STILL REQUIRE WORK ON BOTH SIDES. — JAISHANKAR
On Monday a man pleaded guilty in Calgary to a terrible crime of domestic violence committed in June. If you would rather not read about that sort of thing, now is the time to turn the page or, this being 2019, hit “Back” in your browser.
Collin Dennis Ayorech, 39, had attacked an ex- girlfriend in her Airdrie, Alta., apartment with a sword. The woman suffered bone- deep defence wounds to her right arm and had all her fingers severed, except for her left thumb. Doctors were only able to reattach seven, leaving her maimed for life. Her attacker then shoved her into a closet, pushed a mattress against the door, and set it on fire. Her son came running at the sound of the smoke alarm and found his mother crawling down a hallway “covered head to toe in blood.”
This is an unusual crime, but there is something even more unusual about it: Alberta lawyers may recognize Ayorech as the fellow who had a starring role in
SUBSTANCE ABUSE AND MENTAL ILLNESS CAN BE GOOD REASONS FOR REDUCING A SENTENCE.
R. vs. Ayorech ( 2012), an often- cited Alberta Court of Appeal case on criminal sentencing principles. As far as I know, the persons who appear in such cases as defendants in the court of origin usually do not go on to wider fame. Let alone in such an extravagantly ironic way.
Ayorech had been accused of a series of liquor- store thefts perpetrated with a knife during January of 2010; he was found guilty on three counts of robbery with personal violence under section 344( b) of the Criminal Code, a crime carrying a maximum penalty of life imprisonment. But sentencing guidelines for this crime “start at” three years’ penal custody in Alberta. The Crown asked for four or five. When Judge Harry Gaede gave Ayorech only a year of prison, less four months’ time served, the prosecutors appealed the sentence.
Ayorech had been seen by a court- appointed forensic psychiatrist, Dr. Sergio Santana, who testified that, in his view, Ayorech had no recollection of the robberies, possessed “limited intellectual abilities,” and suffered “a severe addiction to cocaine and alcohol.” (Ayorech was charged with possession of methamphetamine after his June assault; we see how addictions are free to attach themselves to different sources of mental derangement willy- nilly.) On top of all that, he was schizophrenic. This led “to a vicious cycle of psychosis and substance abuse that has had severe implications on Mr. Ayorech as he has probably experienced further cognitive decline and serious legal implications that had rendered him seriously disabled.”
Is there any point, the judge wondered, in punishing such a person at all? Your answer and mine might be “Yes: to stop him from chopping a woman’s fingers off with a sword in the future.” Not having this foreknowledge, the judge treated Dr. Santana’s tale of woe as an inseparable wad of mitigating factors, which was the reason for the appeal. The judges of the appeal court affirmed that substance abuse and mental illness can be good reasons for reducing a sentence, especially when they are “superimposed.”
Moreover, the panel accepted Dr. Santana’s view that Ayorech was “ill equipped to survive in the prison system” because he was, in non- medical argot, retarded and insane. “The respondent has shown,” reads the decision that Alberta’s three most senior judges signed, “that he is willing to undertake treatment outside of custodial detainment, and in the past has benefited from programs, such as Fresh Start, aimed at overcoming his addictions.”
The law says that one function of criminal sentences is “deterrence and denunciation” of crime, but R. vs. Ayorech helped settle the particular meaning of “deterrence” in Alberta law. It might be thought that the placing of a person in prison deters him from committing further offences against law- abiding members of the general public, particularly future ex- girlfriends. Reading the 2012 judgment makes it clear that “deterrence,” in this context, means only the hope that a criminal may be taught for his own sake that crime is wrong, and perhaps that he shouldn’t gobble chemicals that make him more likely to perpetrate crimes. To the degree that a convict is incapable of instruction, even if this makes him obviously more of a danger to the public, the hypothetical need for “deterrence” under this definition is not maximized. It is diminished.
The Ayorech legal principles may not matter to Ayorech the person at this point, since he, having pleaded guilty to aggravated assault and arson, has been referred for an assessment of his mental state at the time he mutilated Dawn Warden. Ms. Warden has carried on courageously, helping out with public demonstrations against domestic violence. I wonder how much demonstrations can accomplish, however, since the law of criminal sentencing seems to have almost totally misplaced the idea of protecting the innocent. Indeed, protecting the vulnerable guilty from the effects of imprisonment is, in R. vs. Ayorech, explicitly paramount.
It’s hard to say what Mr. Ayorech might have learned from that “Fresh Start” program, but he may have been paying some attention when taught repeatedly by judges and other professionals that his own violent actions would not count against him in a court — and that his own hopes would, at every turn, be treated with the care due to a precious gem.