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Criminal - Sentencing - Mental Illness

. R. v. Husbands

In R. v. Husbands (Ont CA, 2024) the Court of Appeal considered sentencing and mental illness as a mitigating factor:

(b) The trial judge’s reasons

[80] The trial judge devoted an entire section of his reasons to the appellant’s “Mental Disorder as a Mitigating Factor.” He started by summarizing a prior authority of this court in R. v. Prioriello, 2012 ONCA 63, 288 O.A.C. 198, as follows:

In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is the illness is an underlying reason for his aberrant conduct. Further, there must be evidence that a lengthy sentence would have a severe negative effect on the offender such that it should be reduced on compassionate grounds. [Emphasis added.]

[81] This passage from the trial judge’s reasons accurately summarizes this court’s decision in Prioriello, at paras. 11-12. According to Prioriello, in order for mental illness to be considered a mitigating factor, it must be “an underlying reason” for the conduct: para 11. The court must also consider the impact that a lengthy sentence would have on the offender.

[82] Having summarized Prioriello, the trial judge went on to summarize other authorities, including a passage from the decision of Durno J. in R. v. A.C.K.T., 2015 ONSC 1169, at para. 24. In A.C.K.T., Durno J. found that where a “demonstrated link” exists between an offence and a mental health issue, the sentence may be reduced.

[83] The appellant stresses that A.C.K.T. is correct. Nonetheless, he submits that the trial judge erred because, although he cited from A.C.K.T., his reasons clearly demonstrate that he insisted upon a direct causal link between the appellant’s PTSD and his offending conduct. The appellant argues that if a direct causal link, as opposed to just a link, were required, then there would never be any need for mental health issues to be considered at sentencing because an accused would have to be NCR before a connection could be made out.

(c) The trial judge applied the correct approach

[84] I do not agree that the trial judge applied an incorrect approach in assessing the connection between the appellant’s PTSD and his offending conduct.

[85] There is no question that the trial judge emphasized that the appellant was not in a dissociative state at the time of the shooting. That does not mean, though, that the trial judge failed to recognize that the appellant was living with PTSD at the time of the shooting. The trial judge repeatedly acknowledged this fact. In my view, all the trial judge was doing was calibrating the seriousness of the mental health issue at the time and its connection or link to the offence. To this end, he said:

There was no evidence that he was out of touch with reality or that he heard voices that told him to draw the gun and begin firing. There was no evidence or suggestion that his conscious choice to carry a concealed, loaded handgun with him throughout that day was in any way caused or influenced by PTSD. He recognized two of the men in the group descending on the escalator as among those who had seriously confined and stabbed him four months earlier. His PTSD may well have been a factor in his being hyper-vigilant and reacting quickly to the sight of those men. He fired shots toward the group, killing two and wounding five others in the food court. His actions were rational in the sense he saw two men he would have an understandable reason to resent or harm. His PTSD may have caused him to react very quickly as he continued firing as he walked towards the group of men with his arm out holding and firing the gun. One of the two men he recognized received the greatest number of wounds. This was not random and it was not self defence. The PTSD to some extent may explain the speed with which events unfolded. It may well have been a factor in the jury having a reasonable doubt as to whether the intent to kill had been proven. The PTSD did not cause these events but presents part of an explanation. I do not view the PTSD as a significant mitigating factor on sentence in this case. [Emphasis added.]

[86] The trial judge recognized that the appellant’s PTSD “may well have been a factor” in how the jury arrived at manslaughter verdicts, particularly given how it may have explained the speed at which things unfolded. The trial judge’s language – “may well have been a factor” – is consistent with Prioriello. Ultimately, the trial judge viewed the PTSD as a mitigating factor on sentence, just not a “significant” one. This is not surprising in light of the trial judge’s findings of fact, to which we owe deference.

[87] The appellant also contends that the trial judge erred by citing Prioriello for the following proposition: in order for mental illness to be considered a mitigating factor in sentencing, the offender must also show that a lengthy sentence would have a severe negative effect on them, and so the sentence should be reduced on compassionate grounds. However, the trial judge did not apply the law in such a manner: he concluded that the PTSD was a mitigating factor, just not a significant one, even without looking to what the appellant’s experience would be in custody.

[88] In my view, the trial judge did not err in ignoring the impact that the appellant’s mental health issues would have on him while he served a custodial period. The Supreme Court recently acknowledged that underlying mental health issues may serve a mitigating role in sentencing without any mention that there must also be evidence that a lengthy sentence would have a negative impact on the offender: see R. v. Hilbach, 2023 SCC 3, 477 D.L.R. (4th) 84, at paras. 37, 88 and 92. This approach is illustrated in Morris. In Morris, the trial judge found that Mr. Morris had the loaded handgun at least in part because of his “precarious mental state”: para. 161. This court accepted that Mr. Morris’ mental state alone offered some mitigation of his personal culpability and moral blameworthiness: paras. 161-166.

[89] In conclusion, there is no reason to interfere with the trial judge’s finding that the appellant’s PTSD was a mitigating factor, but not a significant one.