Health and Substance Abuse as a Sentencing Factor

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2024. (Rev. # 93045)

General Principles

See also: Sentencing Factors Relating to the Offender, Sentencing Factors Relating to the Offence, and Sentencing Factors Relating to the Criminal Proceedings

Generally speaking the existence of medical conditions cannot be use to avoid what is otherwise a fit and proper sentence.[1] If health is being used to avoid a jail sentence there must be some evidence showing that the condition cannot be properly treated in jail.[2]

  1. R v Bulic, 2020 ONCA 845 (CanLII), per curiam, at para 13
    R v Heron, 2017 ONCA 441 (CanLII), at para 25 ("medical conditions cannot generally be used to avoid what is otherwise a fit and proper sentence")
  2. R v HS, 2014 ONCA 323 (CanLII), per Epstein JA

Physical Health

Physical disabilities that may make a custodial sentence more difficult can be mitigating.[1] An offender's health condition that is not "life threatening" will not justify a sentence outside the "usual range of sentence" unless there is evidence the condition cannot be treated within the custodial institution.[2]

Mental Health

Mental health can be a mitigating factor to sentence even where it is not so severe to remove criminal responsibility.[1]

Reduction of sentences due to psychiatric grounds fall into two categories. The mental illness contributed to or caused the commission of the offence or the effect of imprisonment or penalty would be disproportionately severe because of the offender's condition.[2]

An offender's emotional condition due to the personal circumstances of the accused should not be conflated with "mental health problems" that should accord some special treatment in sentence.[3]

The offender must show that a lengthy sentence would have a "severe negative effect on the offender such that it should be reduced on compassionate grounds."[4]

Causal Connection

Generally, for a mental illness is to be considered mitigating, the offender must show that there is a causal link between the condition and the criminal conduct.[5]

Mental disorders, such as schizophrenia, can be a mitigating factor even when there is no a direct causal connection between the offence and the illness. [6] This is also true where the offender was not suffering from delusions at the time.[7] It is sufficient that the illness contributed in some way to the offence.[8] However, the offender's mental health condition is not a factor in sentencing where there is no connection at all between the offence and the condition.[9]

By contrast, a person who commits a crime of violence "while in a sane and sober condition, unaffected by mental impairment of any kind, has the highest level of responsibility, or moral culpability."[10]


Treatment in the community is generally preferred over incarceration.[11] However, this is less so for serious offences.[12]

Mental illness is often considered a basis to order treatment and supervision over punishment.[13]

Deterrence and Denunciation

General deterrence should be given "very little, if any, weight" since it is not an appropriate manner of making an example to others.[14]

Where mental health plays "a central role in the commission of the offence ... deterrence and punishment assume less importance."[15]

However, at times mental illness will be considered an aggravating factor that will increase sentence where it is necessary to protect the public from a dangerous persons who has committed a dangerous offence.[16] Mental illness reduces the importance of denunciation and deterrence and increases the importance of treatment. This includes situations where rehabilitation or cure is impossible.[17]

It is suggested it should be given little if any weight since the punishing of the offender will not make an example to others by way of general deterrence.[18]

The mental condition will attenuate the relative importance of deterrence and denunciation.[19]

Degree of Responsibility

A mental illness diminishes the offender’s degree of responsibility.[20]

Impact of Jail

Incarceration of persons with mental health issues can create a disproportionate impact upon them, which can be a mitigating factor.[21]

An Offenders mental illness can make a jail sentence more severe.[22]

While it has also been observed that the managing of mental health issues and other medical factors are best handled by correctional authorities who are obligated to provide essential health care including mental health care.[23]

It is recognized that it is "difficult" to predict the mental health condition of persons in custody.[24]

Cognitive Deficits

Diminished intellectual capacity is not a mitigating factor warranting a lesser sentence.[25]

The cognitive deficit from Fetal Alcohol Spectrum Disorder (FASD) results in limited restraints as well as an appreciation of the immorality of their actions. This reduces the impact on deterrence and denunciation and increases the mitigation on sentence.[26]

Systemic failures to treat the offender's mental health are mitigating factors.[27]

Other Conditions

There has been some reference to PTSD being a mitigating condition.[28]

  1. R v Peters, 2000 NFCA 55 (CanLII), 194 Nfld. & PEIR 184 (NLCA), per Green JA, (“the mental illness of an offender will often be considered a mitigating factor in sentencing even though it is not of the sort that would establish a verdict of not criminally responsible on account of mental disorder at the time of the commission of the offence.”)
  2. R v Belcourt, 2010 ABCA 319 (CanLII), 490 AR 224, per Slatter JA (2:1), at para 8
  3. R v Lausberg, 2013 ABCA 72 (CanLII), 544 AR 56, per McDonald JA - Sentencing judge erred by considering the emotional state as being a mental health problem
  4. R v Prioriello, 2012 ONCA 63 (CanLII), 288 OAC 198, per O'Connor J, at para 12
  5. Prioriello, ibid., at para 11 ("In order for a mental illness to be considered as a mitigating factor in sentencing, the offender must show a causal link between his illness and his criminal conduct, that is, the illness is an underlying reason for his aberrant conduct")
    R v Robinson, [1974] O.J. No. 585 (C.A.)(*no CanLII links)
  6. R v Ayorech, 2012 ABCA 82 (CanLII), [2012] AJ No 236, per curiam, at para 10 (“mental disorders, particularly schizophrenia, can significantly mitigate a sentence, even if the evidence does not disclose that the mental illness was the direct cause of the offence or that it was carried out during a period of delusions, hallucinations, or such.”)
  7. R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam (3:0)
    Ayorech, ibid.
  8. Belcourt, supra
  9. R v Shahnawaz, 2000 CanLII 16973 (ON CA), 149 CCC 97, per Charron JA
  10. R v Hagendorf, 2000 CarswellOnt 5245 (S.C.)(*no CanLII links) , per Durno J, at para 50
  11. R v Lundrigan, 2012 NLCA 43 (CanLII), [2012] NJ No 231 (NLCA), per Rowe JA, at para 20
  12. see R v JM, [2008] NJ No 262 (P.C.)(*no CanLII links)
    R v Taylor, 2012 CanLII 42053 (NLPC), [2012] NJ No 251 (P.C.), per Mennie J
  13. see R v Valiquette, 1990 CanLII 3048, 60 CCC (3d) 325, per Rothman JA, at p. 331 (“most people understand that the mentally ill require treatment and supervision, not punishment”)
  14. Belcourt, supra, at para 8
  15. R v Batisse, 2009 ONCA 114 (CanLII), 241 CCC (3d) 491, per Gillese JA
  16. R v Lockyer, 2000 NLCA 59 (CanLII), [2000] NJ No 306, per Roberts JA (2:1)
  17. R v Hiltermann, [1993] AJ No 609 (CA)(*no CanLII links) , at paras 4-8
  18. R v Newby, 1991 ABCA 307 (CanLII), 84 Alta LR (2d) 127, per Foisy JA
    R v Rhyno, 2009 NSCA 108 (CanLII), 900 APR 246, per Oland JA
    R v Dickson, 2007 BCCA 561 (CanLII), 228 CCC (3d) 450, per Finch CJ (3:0)
  19. R v Tremblay, 2006 ABCA 252 (CanLII), 401 AR 9, per Martin JA, at para 7
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam (3:0), at para 14
  20. R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 12
    R v Resler, 2011 ABCA 167 (CanLII), 95 WCB (2d) 165, per curiam, at paras 9 to 10, 16
    Belcourt, supra, at paras 7 to 8
    R v Muldoon, 2006 ABCA 321 (CanLII), 213 CCC (3d) 468, per curiam (3:0), at paras 9 to 10
  21. Newby, supra
    Ayorech, supra
  22. Ayorech, supra at 13 (“Ayorech’s mental disorders have left him vulnerable, such that Dr. Santana opined that he ‘was ill equipped to survive in the prison system.’")
  23. R v CF, 2020 ONSC 5975 (CanLII), per Leibovich J, at para 57
    R v Shahnawaz, 2000 CanLII 16973 (ON CA), 149 CCC (3d) 97, per Charron JA (2:1), at paras 30 to 34
    Prioriello, supra
  24. Shahnawaz, ibid., at para 34
  25. R v H(MJ), 2004 SKCA 171 (CanLII), 257 Sask R 1, per Richards JA (3:0)
  26. R v Ramsay, 2012 ABCA 257 (CanLII), 292 CCC (3d) 400, per curiam (3:0)
  27. R v Adamo, 2013 MBQB 225 (CanLII), per Suche J
    Ayorech, supra
  28. R v Walendzewicz, 2020 ONSC 57 (CanLII), at para 37

Addiction and Substance Abuse

Substance abuse, by itself, is not ordinarily a mitigating factor.[1] Nor is a history of addiction a mitigating factor to sentence. However, it can suggest a lower level of moral culpability and otherwise good character but for the addiction. It is also helpful for the court to know about to determine whether rehabilitation is a possibility when crafting an appropriate sentence.

Refusal to apply mitigation can be justified by the fact the accused has not availed of any treatment programs.[2]

An offender with issues with substance abuse may be subject to probationary terms requiring them to abstain absolutely from the possession or consumption of the substances. However, some courts will take the view that such restrictions can be counter-productive where there is no belief that they will comply with the conditions.[3]


Gambling addiction is not generally a mitigating factor.[4] However, some courts have treated it as a reduction to moral culpability as it has the effect of reducing the accused's free will and power of control due to a mental disease.[5]

Addictions and Mental Health

It has been noted that the combination of addiction and mental health make rehabilitation harder.[6]

  1. R v Ayorech, 2012 ABCA 82 (CanLII), 522 AR 306, per curiam, at para 10
    cf. see R v Sheppard, 1997 CanLII 14629 (NL CA), 147 Nfld. & PEIR 304, per O'Neill JA
    cf. R v Lane, 2004 NLSCTD 49 (CanLII), [2004] NJ No 95 (S.C.), per LeBlanc J
    cf. R v Breen, 1982 CanLII 3889 (NL CA), 37 Nfld. & PEIR 472, per Gushue JA (“the effect of alcohol or drugs” can be considered as mitigating factors in sentencing, “that consideration is normally confined to cases where the actions of a person are completely out of character. Thus, lenient treatment may be justified in anticipation of rehabilitation")
  2. R v Sesay, 2020 BCCA 41 (CanLII), at para 38 ("Further, it is not surprising that the appellant’s substance abuse disorder was not treated as a mitigating factor where the appellant, despite his criminal history, has not availed himself of any form of drug or alcohol treatment in the past.")
  3. R v Warren, 2012 CanLII 54025 (NL PC), per Gorman J, at para 58
  4. R v Holmes, 1999 ABCA 228 (CanLII), 237 AR 146, per curiam
    cf. R v Wilson, 2012 NSPC 40 (CanLII), 1002 APR 96, per Ross J
  5. R v Horvath, 1997 CanLII 9759 (SK CA), [1997] SJ No 385, per Bayda CJ
  6. R v Fuller, 2017 ABCA 361 (CanLII), per curiam, at para 13