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Download The Revisions to Canada’s Sentencing Regime as a Remedy to the Over-Incarceration of Persons with Mental Disabilities by Moira Aikenhead J.D., University of Victoria, 2010 A THESIS SUBMITTED IN PARTIAL FULFILLMENT OF THE REQUIREMENTS FOR THE DEGREE OF MASTER OF LAWS in THE FACULTY OF GRADUATE AND POSTDOCTORAL STUDIES (Law) THE UNIVERSITY OF BRITISH COLUMBIA (Vancouver) December 2014 © Moira Aikenhead, 2014 Abstract Persons with mental disabilities make up a significant proportion of the prison population in Canada. In addition to being a group that is subject to discrimination and disadvantage generally in this country, individuals with mental disabilities are particularly vulnerable as prisoners and suffer serious adverse consequences from incarceration not experienced by other prisoners. Individuals with mental disabilities are being sent to prison at an increasing rate, despite recognition in the jurisprudence that the presence of a mental disability will in many cases reduce an offender’s moral blameworthiness for her actions. This Thesis explores these issues through a review of social science literature, legal academic writing and jurisprudence. It concludes that an inconsistent application of sentencing principles developed through the common law and increasing implementation of “tough on crime” legislation by Parliament has resulted in many offenders with mental disabilities being sent to prison, despite the fact that in many circumstances alternatives to incarceration would be a more equitable result and better ensure ongoing public safety. The second part of my Thesis proposes potential revisions to the Criminal Code’s sentencing provisions that could assist in combating the problem of over-incarceration of mentally disabled offenders. These proposals include a requirement that sentencing judges must in every circumstance consider the unique circumstances of offenders with mental disabilities, including both the impacts of mental disability on their behaviour and the systemic discrimination faced by this group in a variety of socioeconomic spheres. The second proposal is a legislative exemption to mandatory minimum sentences for offenders with mental disabilities, based on the principle ii that individualized and proportionate sentences are crucial for these offenders to avoid perpetuating discrimination based on mental disability in the criminal justice system. A final proposed revision would give judges an increased ability to order conditional sentences for this group of offenders, as a counter to the increased legislative limitations on the use of this potentially beneficial sentencing alternative. iii Preface This thesis is original, unpublished, independent work by the author, Moira Aikenhead. iv Table of Contents Abstract.....................................................................................................................................ii Preface......................................................................................................................................iv Table of Contents......................................................................................................................v List of Abbreviations .............................................................................................................viii Acknowledgements ..................................................................................................................ix Dedication .................................................................................................................................x Chapter 1: Introduction ...............................................................................................................1 1.1 The Problem ..................................................................................................................1 1.2 Objectives and Research Questions................................................................................2 1.3 Framework, Methodology and Exclusions......................................................................4 1.3.1 Framework and Methodology .................................................................................4 1.3.2 Language Choice Regarding Mental Health Issues..................................................6 1.3.3 Potential Criticisms.................................................................................................7 1.4 Structure of the Thesis .................................................................................................15 Chapter 2: Background and Theoretical Basis ...........................................................................18 2.1 Introduction .................................................................................................................18 2.2 Mental Disability: Discrimination and Disadvantage....................................................18 2.3 The Crisis of Over-Representation of People with Mental Disabilities in the Criminal Justice System.......................................................................................................................24 2.4 Theoretical Basis For Differential Treatment of Offenders with Mental Disabilities.....38 2.4.1 Reduced Moral Blameworthiness..........................................................................38 v 2.4.2 Mental Disability as a Cause of Crime ..................................................................43 2.5 Why Expansion of NCRMD is Not the Answer ...........................................................51 Chapter 3: Problems with the Current Sentencing Regime.........................................................62 3.1 Introduction .................................................................................................................62 3.2 Sentencing Offenders with Mental Disabilities: The Current State of the Law..............62 3.3 Inconsistency in Application of Sentencing Principles .................................................69 3.3.1 What Constitutes a Relevant “Mental Disability”? ................................................70 3.3.2 Whether the Disability Contributed to the Offence................................................76 3.4 Lack of Available Alternatives to Prison Sentences......................................................84 3.4.1 Conditional Sentences...........................................................................................85 3.4.2 Mandatory Minimums ..........................................................................................95 Chapter 4: Proposals for Sentencing Offenders with Mental Disabilities .................................106 4.1 Introduction ...............................................................................................................106 4.2 “Mental Disability” for the Purposes of Sentencing....................................................108 4.2.1 Pre-Sentence Reports..........................................................................................112 4.3 Requirement Judges Consider All Available Alternatives...........................................122 4.3.1 Introduction........................................................................................................122 4.3.2 Subsection 718.2(e) ............................................................................................124 4.3.3 Why Specific Wording is Necessary ...................................................................125 4.3.4 Particular Attention to the Circumstances of offenders with Mental Disabilities..128 4.3.5 Duties Triggered by Subsection 718.2(e) ............................................................137 4.3.6 Issues with the Effectiveness of the Proposed Provisions ....................................138 4.4 Exemption from Mandatory Minimum Sentences ......................................................140 vi 4.4.1 The Form of a Potential Exemption ....................................................................142 4.5 Conditional Sentence Orders......................................................................................153 Chapter 5: Conclusion.............................................................................................................160 Bibliography.......................................................................................................................... 165 vii List of Abbreviations ADHD Attention-deficit hyperactivity disorder CBA Canadian Bar Association CSO Conditional Sentence Order DSM-5 American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders, 5th Edition FASD Fetal Alcohol Spectrum Disorder NCRMD Not criminally responsible on account of mental disorder PSR Pre-Sentence Report PTSD Post-Traumatic Stress Disorder viii Acknowledgements I offer my enduring gratitude to the faculty, staff, and my fellow students at UBC Law, who have inspired and assisted me in completing my work in this field. I would like to particularly acknowledge the contributions of my fellow LL.M. students Tamera Burnett, Jason Leslie, and Lachlan Caunt. Having access to the insight and moral support of such brilliant and kind individuals has been an invaluable contribution to this Thesis and my re-introduction into the world of academia. I cannot offer enough thanks to my wonderful supervisor, Professor Isabel Grant. Professor Grant was endlessly supportive and encouraging, and consistently made herself available to discuss my Thesis and academic ambitions. Her
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