The180·The 180

Not every murderer deserves the same sentence

Last week, a man with mental health problems was found guilty of first degree murder — which means at least 25 years in prison. Paula Simons says that's unfair: even though he was found criminally responsible, she says he should not be penalized as harshly as Canada's most cold-blooded murderers.
Clockwise starting from left: Jayme Pasieka, Douglas Garland and Travis Baumgartner. All three men have been convicted of first-degree murder, which carries an automatic life sentence. But columnist Paul Simons argues that Pasieka's case shows that mandatory minimum sentences are imperfect. (EPS/CBC/Canadian Press)

A life sentence with no chance of parole for at least 25 years.

That's the minimum mandatory sentence for first degree murder in Canada — unless the person is determined to be not criminally responsible.

But what about those who are mentally ill, but not determined to have been in the grip of a psychotic episode?

Paula Simons, an Edmonton Journal columnist, says that Jayme Pasieka — who was found guilty March 3 of two counts of first degree murder after he killed two men in 2014 — is proof that mandatory minimum sentences are flawed.

Simons argues that Pasieka, who has a documented history of mental illness but was found criminally responsible by the court, should not be penalized as harshly as some other recent "cold-blooded" murderers.

For example: Travis Baumgartner, an Edmonton armoured car guard who killed three of his co-workers and ran off with the money, or Douglas Garland, who killed his business associate as well as his business associate's wife and grandchild (Garland and Baumgartner both received multiple life sentences).

"I just don't think that Pasieka falls into quite the same category as somebody who can cold bloodedly plot out a crime," Simons says.

Pasieka, who fatally wounded two of the six colleagues he attacked in the Loblaws warehouse where they worked, testified in court that he wanted to kill people so that he could be caught by police and get help for his "suffering."

Though the court heard that Pasieka suffers from a serious mental illness, likely schizophrenia, the Crown successfully argued that "his thinking had been too organized, his actions had been too premeditated," she says.

To convict Pasieka of first-degree murder, the jury had to conclude that the Crown had proved beyond a reasonable doubt that the accused intended to kill two men or to harm them in such a way that death would be likely.

'His thinking wasn't logical'

However Simons believes that an argument could be made that Pasieka's decision-making abilities were diminished because of his mental illness.

"In Canada you can be found not criminally responsible if you are what doctors call floridly psychotic, if you're delusional, if you're hallucinating, if you're in the grip of a paranoid delusion. Maybe [Pasieka] wasn't completely delusional, but neither was he in … his right mind. He wasn't on medication, it's clear that his thinking wasn't logical," she says.

The problem is that in Canadian law we don't have any kind of standard for diminished capacity as a defence. In some other jurisdictions if the balance of your mind is disturbed, you might get a lesser sentence, but in Canada we have mandatory minimums for first degree murder.- Paula Simons

Simons doesn't know what an appropriate sentence for someone like Pasieka would be, but admits that there probably isn't much of a public appetite to discuss changing mandatory minimum sentences.

"I don't think that most Canadians are terribly disturbed by the idea of mandatory minimum sentences," she says.

"I think there is a perception that some judges are soft on crime and we need to be tough on crime … but I just think that it is unfair to say, 'All right, life in prison no parole for 25 years,' and that's that, without looking at our own community contribution to the situation, the spiral that led to that horrific incident at that Loblaws warehouse."

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