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Disability - Criminal. 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.
....
[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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