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Criminal - Sentencing - Mental Illness. R. v. Lojovic
In R. v. Lojovic (Ont CA, 2025) the Ontario Court of Appeal dismissed a conviction appeal, here an NCR application was made after a contested trial.
Here the court considered the treatment of mental health issues in criminal sentencing:[47] In R. v. Perry, 2025 ONCA 241, at para. 27, this court emphasized that “mental health challenges may serve as a mitigating factor and lower the offender’s moral blameworthiness when there is a causal connection between the mental health challenges and the offences at issue”.
[48] In R. v. Batisse, 2009 ONCA 114, 93 O.R. (3d) 643, at para. 38, this court explained that, where mental health problems played a “central role” in the commission of an offence, “deterrence and punishment assume less importance”:[W]here offenders commit offences while they are out of touch with reality due to mental illness, specific deterrence is meaningless to them. Further, general deterrence is unlikely to be achieved either since people with mental illnesses that contribute to the commission of a crime will not usually be deterred by the punishment of others. As well, severe punishment is less appropriate in cases of persons with mental illnesses since it would be disproportionate to the degree of responsibility of the offender. In such circumstances, the primary concern in sentencing shifts from deterrence to treatment as that is the best means of ensuring the protection of the public and that the offending conduct is not repeated. This is especially so where a lengthy prison term may be regarded as counterproductive. [Citations omitted.] [49] In R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at paras. 116-17, this court reiterated that principle, emphasizing that mental illness is a factor to be taken into account in sentencing where it plays a role in the commission of the offence:The authorities ... indicate that it is not enough to determine that the offender had a mental illness at the time of the offence. The trial judge must also determine the extent to which that illness contributed to the conduct in question and the impact of that finding on the appropriate sentence. The trial judge will consider whether there a causal connection between the offender’s mental illness and the commission of the offence and, if so, whether it diminished the offender’s culpability.
There is no doubt that an offender’s mental illness is a factor to be taken into account in sentencing. Where mental illness plays a role in the commission of the offence, the offender’s culpability may be diminished, punishment and deterrence may be ineffective or unnecessary and treatment and rehabilitation of the offender may be paramount considerations. [50] In this case, the trial judge certainly had regard to Mr. Lojovic’s bipolar disorder when sentencing him, but he did not approach this factor in accordance with the principles established in Batisse and Ellis.
[51] As set out in Batisse and Ellis, he should have considered whether Mr. Lojovic’s bipolar disorder played a central role in the commission of the offence, which it obviously did. Next, he should have considered whether this condition affected Mr. Lojovic’s moral blameworthiness. Finally, he should have considered whether, given the central role played by Mr. Lojovic’s mental disorder, there was a need for specific or general deterrence.
[52] Instead of approaching the inquiry from this perspective, the sentencing judge accepted that the bipolar disorder played a central role in Mr. Lojovic’s commission of the offence, but treated this as an aggravating factor – making matters “worse” – rather than a factor that could reduce his moral blameworthiness. In effect, the trial judge treated Mr. Lojovic’s bipolar disorder as an aggravating factor because he should have known better than to drive while manic.
[53] There is no doubt that, when Mr. Lojovic took his mother’s car, drove to Hamilton and sped erratically through the city, he was in a manic state caused by his bipolar disorder. Mr. Lojovic may be self-aware enough to know when a manic episode is coming and how to avoid harmful behaviour in such circumstances, but this does not increase his moral blameworthiness at the time of the offence. On the contrary, while he was aware of what he was doing and the consequences of those actions, his bipolar disorder played a central role in the commission of the offence and made it much harder for him to control his behaviour.
[54] Accordingly, it was an error in principle for the trial judge to treat Mr. Lojovic’s bipolar disorder as an aggravating factor. . 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.
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