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Feds urged to establish law commission on sentencing reform

Tuesday, November 24, 2020 @ 11:58 AM | By Heather Campbell Pope


Heather Campbell Pope %>
Heather Campbell Pope
Using his cane, Peter Brooks bludgeoned a paralyzed care home resident to death as she slept in bed. He was convicted of second-degree murder and sentenced to life in prison with no parole eligibility for 10 years (R. v. Brooks 2017 ONSC 439).

Brooks had dementia at the time of the offence. At trial, doctors for both sides agreed that the dementia affected his frontal lobe, resulting in disinhibition, poor impulse control and executive function deficits. He had no criminal record prior to the murder conviction.

Brooks’ neurocognitive disorder contributed to his criminal behaviour: it was “clear” his dementia contributed to making him dangerous to others, the judge observed at sentencing.

Regarding the penalty, the jury made no recommendation on parole eligibility, while the Crown and defence jointly suggested the minimum parole ineligibility period of 10 years. They acknowledged several aggravating factors, including the brutal nature of the offence but pointed to Brooks’ worsening dementia as a basis for imposing the 10-year minimum.

In January 2017, the judge set Brooks’ parole ineligibility at 10 years. At the time, Brooks was 76 years old and had no family or community support. This effectively meant that he was unlikely to ever be released from prison, the judge said.

For many in society, the killer got what he deserved. He planned the vicious beating, attacking the deceased victim during a shift change and at night when she was likely to be asleep. During the incident, he was carrying a knife and hit another woman with his cane, causing serious injuries. He also attempted to harm a third resident and was only stopped after a difficult struggle with two staff members.

For others, the mandatory minimum sentence is unjust: incarcerating a 76-year-old first-time offender — whose dementia contributed to his crime — is cruel and impractical. Madness is its own punishment, legal scholar Sir William Blackstone noted over 250 years ago, and prisons were never designed to be nursing homes or hospices; they are ill-equipped to provide care for an older person with a progressive, terminal condition with no cure.

The legal and moral dilemmas raised by killers with dementia are not new; they have troubled thinkers for millennia. As medical historians and others have observed, forensic hospitals and prisons have long housed offenders with mental disorders who inhabit the borderland of criminal responsibility.

In modern Canadian criminal law, these individuals do not meet the non-responsibility threshold in s. 16 of the Criminal Code and they possess the necessary mental element for culpability. If found guilty, like Brooks, they can be sent to languish and perhaps die in prison.

Six months after Brooks’ conviction, Parliament passed Canada’s national dementia strategy legislation (National Strategy for Alzheimer's Disease and Other Dementias Act, SC 2017, c 19). The law requires the federal health minister, in co-operation with provincial and territorial partners, to develop and implement a comprehensive national strategy that addresses all aspects of dementia. Two years later, in June 2019, the minister released the plan, titled A Dementia Strategy for Canada: Together We Aspire.

The strategy envisions a society in which all people with dementia are valued, supported and experience an optimal quality of life. All people except those like Brooks. The plan makes no meaningful reference to individuals who enter the criminal justice system due to behavioural symptoms. An appendix mentions Correctional Service Canada’s policy framework on older inmates, but there is no engagement with upstream criminal law issues such as sentencing reform.

Last month, the health minister shared her second annual Report to Parliament PDF on Canada’s national dementia strategy. It provides no update on criminal justice reform.

On Nov. 12, Dementia Justice Canada delivered a letter to government expressing concern about this ongoing omission, suggesting it violates the health minister’s legislative obligation to create a comprehensive dementia plan.

To help address this gap, we recommend the establishment of a federal law commission to study sentencing reform — a timely endeavour, as Sen. Kim Pate’s judicial discretion bill is currently before the upper house. Among the possible changes, we suggest the commission examine options like codifying the diminished responsibility defence for killers with dementia and other mental disorders who fall in the grey zone of culpability.

Developed in Scottish common law over 150 years ago, and introduced into English law in 1957, diminished responsibility is a partial defence to murder that reduces the offence to manslaughter, a crime that carries a wide range of sentencing options. Though it attracts much controversary, the verdict allows for the humane desire to temper justice with mercy.

Thankfully, such fatal and otherwise extreme violence by people with dementia is rare. Indeed, it is uncommon for people with dementia to be charged with any offence. If they do come into conflict with the law, it is more likely to be for behaviours such as shoplifting, trespassing, public urination and unwanted sexual advances. In other cases, a person with dementia may be charged with assault, often resulting from agitated behaviour at home or in the community.

But the small number of slayings is not an excuse to ignore the need for law reform; the proper administration of justice demands that our culpable homicide laws can meet the challenges presented by accused persons with dementia whose symptoms contributed to their offending.

To achieve a Canada where all people with dementia are valued and have their rights respected, the national strategy must not leave these justice-involved individuals behind.

Heather Campbell Pope (LLB, LLM) is a former B.C. lawyer and founder of Dementia Justice Canada. Follow her at @SeniorsLaw

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