Sentencing the Mentally Disordered Accused

• Author: Richard D. Schneider
• Pages: 703-711

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CHAPTER 32

Sentencing the

Mentally Disordered Accused

Richard D. Schneider

I. INTRODUCTION

e presence of a mental disorder or a mental health problem in an individual accused of a criminal of-

fence does not always result in either a nding of untness to stand trial nor of a nding of not criminally

responsible on account of mental disorder. Mental disorder may have been operative in the commission

of the oence but not to an extent sucient to have an impact upon the verdict; or, the accused may have

quite rationally elected not to raise the issue during the course of the trial notwithstanding the potential

success of the defence. An accused has the right to decide whether or not he will put forth the defence of

not criminally responsible (NCR). Notwithstanding the accused ’s decision in this regard, the court must

nevertheless take into consideration evidence of mental disorder during the sentencing process to reect

the fact that a just sentence must t the oender as well as the oence. Justice Lamer of the Supreme

Court of Canada concluded that

[t]he determination of a just and appropriate sentence is a delicate art which attempts to balance carefu lly

the societal goals of sentencing against t he moral blameworthiness of the oender and the circumsta nces

of the oence, while at all times ta king into account the needs and current conditions of and in the com-

munit y (R. v. M.(C. A.), 1996).

e sentencing court is required to consider any relevant information placed before it, including rep-

resentations or submissions made by or on behalf of the prosecutor or oender.

II. SENTENCING BASICS

Section 718 of the Criminal Code sets out clearly the purpose of sentencing. It states that the objective of

sentencing someone found guilty of a criminal oence is to contribute to:

respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions

that have one or more of the following objectives:

(a) to denounce unlawfu l conduct;

(b) to deter the oender and other persons from committing oences;

(c) to separate oenders from society, where necessary;

(d) to assist in rehabilitating oenders;

(e) to provide reparations for harm done to victims or to the community; a nd

(f) to promote a sense of responsibility in oenders, and acknowledgment of the harm done to victims

and to the community.

In general, a mental disorder, in order to be aorded any weight in sentencing, must have caused

or contributed to the commission of the criminal act. For example, depression occurring subsequent

to arrest as a result of the accused’s legal predicament should generally not be taken into account in

sentencing.