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Criminal - Sentencing - Disability. R. v. Seed
In R. v. Seed (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here where a sentencing issue was the effect of medical status and whether incarceration versus conditional sentences is appropriate:[9] Health issues can be a circumstance that might make a conditional sentence fit where it otherwise would not be, when a carceral sentence would impose a medical hardship that cannot be addressed within the correctional facility: R. v. M.M., 2022 ONCA 441, at para. 16; R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81, at para. 89. However, that is not this case, where the medical needs are being addressed within the institution or by the access correctional authorities are providing to local health facilities. . R. v. P.A.
In R. v. P.A. (Ont CA, 2025) the Ontario Court of Appeal refers to "the rare cases where the offender is likely to experience custody in a more severe way such that the sentence imposed is, or will become, disproportionate", here for their medical conditions:[7] .... The medical records submitted do not suggest that the appellant cannot be properly cared for while incarcerated. Nor do they suggest that this is one of the rare cases where the offender is likely to experience custody in a more severe way such that the sentence imposed is, or will become, disproportionate. See R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 24, at paras. 143-146. . R. v. Storey
In R. v. Storey (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal sentencing appeal, here on the basis that "the appellant’s disability attenuated his moral responsibility":[3] I would dismiss the conviction appeal but allow the sentence appeal. The trial judge failed to recognize that the appellant’s intellectual disability attenuated his moral blameworthiness even though it did not prevent him from understanding the consequences of his behaviour entirely. ....
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[57] The trial judge did not treat the appellant’s disability as a mitigating factor. He stated that intellectual disability only reduces moral blameworthiness if the offender shows a relationship between the disability and the offences at issue. In the trial judge’s view that required him to show that his intellectual disability made him unaware of the consequences likely to follow from his actions.
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(a) The Trial Judge Erred in not Treating the Appellant’s Disability as a Mitigating Factor
[64] When sentencing offenders with cognitive limitations, courts examine (a) the extent to which those limitations contributed to the conduct in question, and (b) the impact of that contribution on the appropriate sentence: R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused, [2014] S.C.C.A No. 53. If it affects the behaviour that leads to criminal liability, cognitive impairment “can attenuate the moral blameworthiness attached to that behaviour”, or “justify less emphasis on the principles of specific and general deterrence”: R. v. Manitowabi, 2014 ONCA 301, 318 O.A.C. 174, at para. 64. Courts must not ignore the possibility that an offender’s cognitive limitations affected their criminal conduct, but they also must not assume that they did: R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 73. The inquiry is always fact-driven, rooted in the particular offender and the particular offence.
[65] The trial judge recited this guidance but erred in principle in his application of it. He treated the inquiry as exhausted by whether the appellant’s limitations prevented him from understanding the potential consequences of his actions. He observed that “nowhere in her report does Dr. Martin suggest that [the appellant’s] intellectual limitations preclude him from appreciating the potential consequences of his actions”. He then described the relevant evidence and said that he was “simply unable to find that [the appellant’s] intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court”. He therefore concluded that the appellant’s limitations did not reduce his moral blameworthiness.
[66] An appreciation of the potential consequences of one’s actions does not end the moral blameworthiness inquiry. The evidence on which the trial judge relied showed that the appellant understood that it was wrong to have sex with children, and that legal consequences might flow from doing so. The evidence did not demonstrate that the appellant’s limitations played no role in his criminality. The trial judge’s analysis appeared to conflate the relevant sentencing question with issues that would be addressed under a s. 16 inquiry into whether an accused is criminally responsible. That was an error in principle, foreclosing further analysis of how the appellant’s cognitive challenges might have attenuated his moral blameworthiness.
[67] Moreover, the error impacted the sentence. As the court stated in Friesen, at para. 91, despite the significant moral culpability that attaches to those who commit offences against children, “offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability”. There is no question that the appellant had serious cognitive limitations that should have been viewed as contributing to the conduct in question. Dr. Martin’s evidence was that the appellant struggled to “understand the nuances” inherent in the prohibition against sexual relationships with children, and both Dr. Martin and the appellant gave evidence that the appellant formed relationships with children because he viewed them as on his level. (The trial judge did not reject this evidence or prefer other evidence to it—he incorrectly assessed the evidence through the lens of appreciation of consequences).
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