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Criminal - Sentencing - Disability. R. v. Kulatheeswaran
In R. v. Kulatheeswaran (Ont CA, 2026) the Ontario Court of Appeal considered 'disability' as a sentencing factor:[22] The respondent’s serious neurological condition at the time of sentencing also tempers the length of the penitentiary term. The Supreme Court reaffirmed the settled principles governing the mitigating effect of physical illness or injury in R. v. Suter, 2018 SCC 34, [2018] 2 S.C.R. 496, at paras. 47, 50, 56-57, and in R. v. Hills, 2023 SCC 2, [2023] 1 S.C.R. 6, at para. 135.[3] These cases establish that physical health conditions matter to sentencing – they are always relevant and must be considered to craft a proportionate sentence. Their presence usually establishes that the defendant will face additional hardship while incarcerated. Thus, they are mitigating even if they did not contribute to the offending conduct or diminish moral blameworthiness. It is an error in principle to overlook physical health challenges or treat them as a mere afterthought.
[23] Serious physical health challenges typically have an important mitigating effect. For instance, a grave neurological condition like multiple sclerosis often provides significant mitigation because those suffering from such a “cruel affliction” usually face pronounced hardship while incarcerated: R. v. Raymond (1985), 1985 CanLII 2635 (SK CA), 44 Sask. R. 163 (C.A.), at para. 8; see also A.R., at para. 46; Silaphet, at para. 84.
[24] Health conditions, while always relevant, gain added significance if there is an evidentiary foundation for a concern that they would not be properly treated during incarceration. For instance, the Supreme Court concluded that imprisonment would be disproportionately harsh on individuals with mental disorders by taking judicial notice of well-known barriers to accessing mental health services faced by prisoners in some federal correctional institutions: R. v. Bertrand Marchand, 2023 SCC 26, 487 D.L.R. (4th) 201, at para. 149.
[25] In this case, I accept the trial judge’s finding that the respondent’s neurological condition provides important mitigation. As the trial judge recognized, the presence of multiple lesions in the brain of a 25-year-old youthful adult experiencing stroke-like symptoms is “significant” to sentencing. Whether caused by multiple sclerosis or some other serious neurological affliction, these severe physical health challenges increase the impact of a custodial sentence on the respondent and provide meaningful mitigation. This finding is owed deference under Friesen because it is untainted by error.
[26] Furthermore, the trial judge was entitled to place added weight on this serious neurological condition because he was legitimately concerned that incarceration would interfere with treatment. The respondent’s experience in pre-sentence custody – facing harsh conditions and missing an important medical appointment – supplied an evidentiary foundation for this concern, and the trial judge’s determination on this point merits deference under Friesen. It is thus unnecessary to address the respondent’s request to take judicial notice of alleged systemic barriers to healthcare access in correctional institutions. . R. v. Seed
In R. v. Seed (Ont CA, 2025) the Ontario Court of Appeal dismissed a criminal appeal, here where a sentencing issue was the effect of medical status and whether incarceration versus conditional sentences is appropriate:[9] Health issues can be a circumstance that might make a conditional sentence fit where it otherwise would not be, when a carceral sentence would impose a medical hardship that cannot be addressed within the correctional facility: R. v. M.M., 2022 ONCA 441, at para. 16; R. v. Faroughi, 2024 ONCA 178, 171 O.R. (3d) 81, at para. 89. However, that is not this case, where the medical needs are being addressed within the institution or by the access correctional authorities are providing to local health facilities. . R. v. P.A.
In R. v. P.A. (Ont CA, 2025) the Ontario Court of Appeal refers to "the rare cases where the offender is likely to experience custody in a more severe way such that the sentence imposed is, or will become, disproportionate", here for their medical conditions:[7] .... The medical records submitted do not suggest that the appellant cannot be properly cared for while incarcerated. Nor do they suggest that this is one of the rare cases where the offender is likely to experience custody in a more severe way such that the sentence imposed is, or will become, disproportionate. See R. v. El-Azrak, 2023 ONCA 440, 167 O.R. (3d) 24, at paras. 143-146. . R. v. Storey
In R. v. Storey (Ont CA, 2025) the Ontario Court of Appeal allowed a criminal sentencing appeal, here on the basis that "the appellant’s disability attenuated his moral responsibility":[3] I would dismiss the conviction appeal but allow the sentence appeal. The trial judge failed to recognize that the appellant’s intellectual disability attenuated his moral blameworthiness even though it did not prevent him from understanding the consequences of his behaviour entirely. ....
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[57] The trial judge did not treat the appellant’s disability as a mitigating factor. He stated that intellectual disability only reduces moral blameworthiness if the offender shows a relationship between the disability and the offences at issue. In the trial judge’s view that required him to show that his intellectual disability made him unaware of the consequences likely to follow from his actions.
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(a) The Trial Judge Erred in not Treating the Appellant’s Disability as a Mitigating Factor
[64] When sentencing offenders with cognitive limitations, courts examine (a) the extent to which those limitations contributed to the conduct in question, and (b) the impact of that contribution on the appropriate sentence: R. v. Ellis, 2013 ONCA 739, 303 C.C.C. (3d) 228, at para. 116, leave to appeal refused, [2014] S.C.C.A No. 53. If it affects the behaviour that leads to criminal liability, cognitive impairment “can attenuate the moral blameworthiness attached to that behaviour”, or “justify less emphasis on the principles of specific and general deterrence”: R. v. Manitowabi, 2014 ONCA 301, 318 O.A.C. 174, at para. 64. Courts must not ignore the possibility that an offender’s cognitive limitations affected their criminal conduct, but they also must not assume that they did: R. v. Okemow, 2017 MBCA 59, 353 C.C.C. (3d) 141, at para. 73. The inquiry is always fact-driven, rooted in the particular offender and the particular offence.
[65] The trial judge recited this guidance but erred in principle in his application of it. He treated the inquiry as exhausted by whether the appellant’s limitations prevented him from understanding the potential consequences of his actions. He observed that “nowhere in her report does Dr. Martin suggest that [the appellant’s] intellectual limitations preclude him from appreciating the potential consequences of his actions”. He then described the relevant evidence and said that he was “simply unable to find that [the appellant’s] intellectual challenges operated in such a way as to render him unaware of the potential consequences of the actions and decisions he took which resulted in him being brought up before this court”. He therefore concluded that the appellant’s limitations did not reduce his moral blameworthiness.
[66] An appreciation of the potential consequences of one’s actions does not end the moral blameworthiness inquiry. The evidence on which the trial judge relied showed that the appellant understood that it was wrong to have sex with children, and that legal consequences might flow from doing so. The evidence did not demonstrate that the appellant’s limitations played no role in his criminality. The trial judge’s analysis appeared to conflate the relevant sentencing question with issues that would be addressed under a s. 16 inquiry into whether an accused is criminally responsible. That was an error in principle, foreclosing further analysis of how the appellant’s cognitive challenges might have attenuated his moral blameworthiness.
[67] Moreover, the error impacted the sentence. As the court stated in Friesen, at para. 91, despite the significant moral culpability that attaches to those who commit offences against children, “offenders who suffer from mental disabilities that impose serious cognitive limitations will likely have reduced moral culpability”. There is no question that the appellant had serious cognitive limitations that should have been viewed as contributing to the conduct in question. Dr. Martin’s evidence was that the appellant struggled to “understand the nuances” inherent in the prohibition against sexual relationships with children, and both Dr. Martin and the appellant gave evidence that the appellant formed relationships with children because he viewed them as on his level. (The trial judge did not reject this evidence or prefer other evidence to it—he incorrectly assessed the evidence through the lens of appreciation of consequences).
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