Revisions to Canada's sentencing regime as a remedy to the over-incarceration of persons with mental disabilities


University of British Columbia

Date Issued


Document Type



Master of Laws - LLM




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 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.

Date Available



Attribution-NonCommercial-NoDerivs 2.5 Canada




Law, Faculty of