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Disability - Criminal. 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). . 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. McCaw
In R. v. McCaw (Ont CA, 2023) the Court of Appeal considers an appeal from the 'Adult Therapeutic Court':[6] The respondent is 47 years old (46 at the time of sentencing). The respondent lives with certain mental health challenges, including Asperger’s syndrome, obsessive-compulsive disorder, depression, and agoraphobia. He receives an Ontario Disability Support Pension. The respondent is socially isolated. He told the author of the Pre-Sentence Report that he uses child pornography to cope with his loneliness.
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[10] The respondent’s case progressed in the Adult Therapeutic Court (a mental health diversion court). After he was arrested, the respondent spent 27 days in PSC. By the time he was sentenced, he had been on bail for just under three and a half years, with a house arrest condition (subject to the customary exceptions, including being allowed to be outside the house with his mother or father). . R v Bulic
In R v Bulic (Ont CA, 2020) the Court of Appeal cited law that disability does not normally factor in to reduce criminal sentencing:[13] The trial judge did address the appellant’s mental health issues. He concluded that the issues appeared to be a result of his criminal conduct and not a result of a pre-existing condition. Further, “medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence”: R v. Heron, 2017 ONCA 441, at para. 25.
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