Judicial Decision-Making in the Sentencing of Mentally Ill Offenders in Canada: A Descriptive Study

• In Event: Judicial Discretion in Canada and the Effects of Legislative Constraints on Sentencing

Abstract

While the Canadian criminal justice system has moved towards codified standards for mental illness, the threshold continues to be somewhat fluid and dependent on sociological conceptions and public morality. The academic literature on sentencing mentally ill offenders, however, predominately focuses on specific areas of judicial discretion and the narrow focus of the current “Not Criminally Responsible” defence under s. 16 of the Canadian Criminal Code and neglects to study how judicial sentencing decisions are formed for mentally ill offenders who fall short of the s.16 threshold (in other words, the offenders have clear mental illnesses but remain “criminally responsible”). To address this gap in the literature, a deductive, qualitative research study assessed a set of 308 Canadian criminal cases where mental illness was raised at trial. Within these cases, the study identified, coded, and analyzed how mental illness was perceived, categorized, and assessed for risk in sentencing decisions for mentally ill offenders who do not meet the NCR threshold. Policy implications regarding the relationship between criminal justice policies and the role of statutory codification will also be discussed.

Author

• Amanda Komljenovic, University of Guelph