Sentencing neurocognitively impaired offenders in Canada.

Author:Verdun-Jones, Simon N.

Tony Doob has long played a significant and remarkably helpful role in the Canadian debate with respect to sentencing. As a member of the Canadian Sentencing Commission (1987), he participated in an enterprise that recognized the need to enhance sentencing policy and practice by developing more accurate statistical information and fostering an active program of empirical research. In addition, he has continued to place great emphasis on the need to achieve a greater degree of uniformity in sentencing decisions across Canada (Doob 2011). This article is a modest tribute to his legacy in these respects.

There is universal agreement that the great majority of offenders who are sentenced to prison live with a mental disorder and/or neurocognitive impairment (Bland, Newman, Thompson, and Dyck 1998; Brink, Doherty, and Boer 2001; James and Glaze 2006; Kavanagh, Rowe, Hersch, Barnett, and Reznik 2010; Popova, Lange, Bekmuradov, Mihic, and Rehm 2011; Somers, Cartar, and Russo 2008). However, relatively little is known about the impact that the presence of these conditions may have on decision making by Canadian judges in the sentencing process. The "fundamental principle" of sentencing, as articulated in the Criminal Code (s 718.1), states that "a sentence must be proportional to the gravity of the offence and the degree of responsibility of the offender." Since Canada does not recognize the doctrine of diminished criminal responsibility in the determination of guilt or innocence, it is only at the sentencing stage that the impact of mental disorder and/or neurocognitive impairment on the degree of the offender's responsibility may be taken into account. Only a small fraction of accused persons (primarily, those who were in a psychotic state at the time of the offence) meet the strict criteria for the NCRMD defence (Verdun-Jones 2011). As a consequence, in the overwhelming preponderance of cases, the primary relevance of mental disorder and/or neurocognitive impairment is to the sentencing process.

The Criminal Code (s 718.2) provides that "a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender." However, only examples of aggravating circumstances are given and the courts are given no guidance with respect to mitigating circumstances. It is important, therefore, to ascertain the extent to which Canadian courts consider conditions such as neurocognitive impairment to be mitigating circumstances that warrant a reduction in the sentence.

Manson (2001: 131) notes that "aggravating and mitigating factors are often taken for granted in the sense that courts rarely debate their applicability or premises." However, he suggests that there are two over-arching elements which might explain the manner in which courts apply these factors. The first focuses on the gravity of the offence(s) in terms of the culpability of the offender and the extent of the harm caused to the victim(s), and the second fixes on the manner in which certain aspects of the offender's character and conduct may engage with any of the sentencing objectives articulated in the Criminal Code (s 718 enumerates denunciation, deterrence, incapacitation, rehabilitation, reparation, and promotion of responsibility and accountability as specific sentencing objectives). Manson (2001: 134) states that there are circumstances in which "emotional, physical, and psychological impairment can mitigate culpability because they affect judgment." Ruby, Copeland, Davies, Douchette, and Litkowski (2004: 252) also indicate that "mental illness" may be considered a mitigating factor when the condition is considered to have been the cause of, or has contributed to, the commission of the offence and when the trial judge considers that the impact of a harsh penalty, such as imprisonment, may have a disproportionately greater effect on an offender who is living with a mental disorder.

This article presents the findings of some exploratory research that addresses the extent to which Canadian courts have weighed the presence of neurocognitive impairment in the sentencing scale. The studies specifically examine the role played by post-traumatic stress disorder (PTSD), fetal alcohol spectrum disorder (FASD), attention deficit hyperactive disorder (ADHD), and psychopathy in the sentencing process. The three studies concerned are based on an analysis of judicial decisions published in legal databases, such as Quicklaw, Criminal Spectrum, and CriminalSource.

At the outset, it must be emphasized that assessing the impact of neurocognitive impairment on sentencing decisions is particularly challenging when the number of cases available for analysis is relatively small, there are several confounding variables (such as seriousness of offence(s), number of charges, prior record of the offender, and extent of harm to the victim), and different patterns of co-occurring diagnoses. In addition, judicial reasons for sentencing articulate the justification or rationale for a decision and may include only carefully selected extracts from expert assessments of the offender's mental health condition.

Impact of neurocognitive impairments on sentencing decisions

FASD and psychopathy

Using legal databases, Lauren Freedman (2008) conducted an analysis of sentencing decisions involving offenders with psychopathy and fetal alcohol spectrum disorder (FASD) in British Columbia, Ontario, and Nova Scotia. FASD has generally been recognized as a condition that is associated with neurocognitive impairment (Nash, Sheard, Rovet, and Koren 2008; Mattson, Crocker, and Nguyen 2011) and thereby merits some consideration as a mitigating factor precisely because it affects the capacity to make decisions that will prevent an individual from coming into conflict with the criminal law (Roach and Bailey 2009). However, neither the public nor the courts have been inclined to view psychopathy as a condition that may be treated as a mitigating factor (Zinger and Forth 1998). Nevertheless, there has been an increasing degree of recognition that psychopathy involves several specific neurocognitive impairments that may affect the degree of perceived blameworthiness of psychopathic offenders (Fine and Kennett 2004; Freedman and Verdun-Jones 2010).

The objective of Freedman's study was to compare the judicial approaches taken toward FASD and psychopathy, both of which involve a significant degree of neurocognitive impairment. Freedman accessed legal databases and identified some 41 sentencing decisions involving psychopathy. Thirty-four of these cases were dangerous offender hearings: in these cases, 30 individuals were declared dangerous offenders, while the remaining 4 were declared long-term offenders. In 22 of the 41 cases, psychopathy was explicitly mentioned by the judges in their sentencing decisions. Where psychopathy was not explicitly cited, the judge repeated words used in the expert testimony describing psychopathic behaviour, such as "superficially charming, easily fabricating stories and evidence to achieve ... perceived goals" (Freedman 2008: 29). Many of the experts failed to provide sufficient information concerning the specific types of assessment used to identify the offender as psychopathic. Therefore, the quality of evidence presented was not as determinative as the mere assertion that the offender was psychopathic. While this was never explicitly articulated, Freedman (2008) found that psychopathy was consistently treated as an aggravating factor: The sentences imposed on psychopathic offenders were more severe than the norm. This practice was followed in direct contrast to that which prevailed in cases involving offenders who were considered to be suffering from FASD.

Freedman (2008) examined a total of 19 sentencing decisions involving FASD. In 10 of these cases, the judge made a reference to the disorder in her or his reasons for sentencing. The judge explicitly identified acknowledged FASD to be a mitigating factor in 3 cases and never characterized the disorder as an aggravating factor. As occurred in the psychopathy cases, a valid diagnosis of FASD did not seem to be a critical...

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