identied for mental health follow-up. Depending upon how mental
disorder is dened, prevalence among inmates ranges from to
percent. Rates of mental ill-health are almost as high in the popula-
tion of oenders serving sentences in the community. Mental disorders
can trigger oending and may be exacerbated by certain sentencing
options, particularly imprisonment.
A. THE CHALLENGE OF DETERMINING FIT SENTENCES FOR
OFFENDERS WHO ARE MENTALLY DISORDERED
“Mentally disordered accused” are sometimes referred to as if they com-
prise a homogeneous population, but that is not the case. Many dif-
ferent types of “mental disorder” have been recognized by Canadian
courts in recent years, likely reecting increased social acceptance of
mental illness. While “mental disorder” is dened in the Criminal Code
as a “disease of the mind,” this term has, in turn, been broadly dened
by the Supreme Court of Canada as “embrac[ing] any illness, disor-
der or abnormal condition which impairs the human mind and its
functioning.” It thus includes a spectrum of mental disorders ranging
from psychoses, to intellectual decit, to brain injury, to fetal alco-
hol spectrum disorders. Subsequent to various reports of the Mental
Health Commission of Canada, there has been increasing recogni-
tion that the incidence of mental health problems is much higher in
individuals who come into contact with the criminal justice system.
A signicant proportion of these people enter the system because of
their mental health issues (or their frequent correlates of homelessness
and substance abuse). For many other accused, depression and other
psychological disorders contribute to their oending or play a role in
reoending following conviction.
Howard Sapers, Annual Report of the Oce of the Correctional Investigator,
– (Ottawa: OCI, ), online: www.oci-bec.gc.ca/cnt/rpt/pdf/annrpt/
RSC , c C-, s [Criminal Code].
Cooper v R,  SCR at .
See, for example, Kent Roach & Andrea Bailey, “The Relevance of Fetal Alcohol
Spectrum Disorder in Canadian Criminal Law from Investigation to Sentencing” ()
University of British Columbia Review .