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Since 1999, Gladue principles have been applied in a variety of contexts within the Canadian criminal justice system. Some of these contexts, like bail hearings, have been thoroughly discussed by courts and academics. Others have not. To supplement the ongoing discussion of how Gladue can be used in new and unique ways, this paper analyzes the application of Gladue principles to NCRMD and fitness disposition hearings under s. 672.54 of the Criminal Code. To date, only one appellate court has held that Gladue principles apply to NCRMD and fitness disposition hearings. However, according to the Ontario Court of Appeal, that application is limited. While relevant to the rehabilitation and reintegration of an Indigenous accused, Gladue principles are not relevant when assessing their dangerousness or mental condition. This paper argues that the current approach by the Ontario Court of Appeal is inappropriate, inconsistently applied, and should not be adopted by Courts and review boards across the country since it ignores the benefits a full Gladue analysis can have during s. 672.54 disposition hearings. [ABSTRACT FROM AUTHOR]

Background: The public often perceives the insanity defense as a "get out of jail free card". Conversely, several studies demonstrate the substantial control imposed upon these defendants. This study compares Review Boards decisions regarding people found not criminally responsible on account of mental disorder (NCRMD) to criminal courts decisions regarding convicted offenders for similar offenses in Canada. Method: Detention, using logistic regression, and duration under detention and supervision, using Cox regression, were compared between a cohort of 1794 individuals found NCRMD in three Canadian provinces (Quebec, Ontario, and British Columbia) between 2000 and 2005 followed until 2008 from the National Trajectory Project and a national sample of 3,20,919 Canadians convicted of criminal offense from Statistics Canada's Criminal Court Survey. Results: Individuals found NCRMD are 3.8 times (95% CI 3.4–4.3) more likely to be detained than convicted offenders as well as 4.8 times (95% CI 4.5–5.3) and 2.9 times (95% CI 2.6–3.1) less likely to be released from detention and supervision, respectively. One year after the verdict, 73% of the NCRMD accused were still under legal supervision and 42% were still in detention, whereas these proportions were, respectively, 41 and 1% for their convicted counterparts. Interaction effects show that sex, age, jurisdiction, number of offenses, and severity of crimes committed have a differential impact on decisions applied to NCRMD accused compared to convicted persons. Conclusion: Contrary to popular perceptions, the insanity defense is not a loophole. Differences as to factors influencing the trajectories of the two samples confirm that Review Boards are able to distance their practices from the criminal courts and can set aside, at least in part, the principles of proportionality and punitiveness governing the traditional sentencing practices. [ABSTRACT FROM AUTHOR]

BackgroundThe public often perceives the insanity defense as a “get out of jail free card”. Conversely, several studies demonstrate the substantial control imposed upon these defendants. This study compares Review Boards decisions regarding people found not criminally responsible on account of mental disorder (NCRMD) to criminal courts decisions regarding convicted offenders for similar offenses in Canada.MethodDetention, using logistic regression, and duration under detention and supervision, using Cox regression, were compared between a cohort of 1794 individuals found NCRMD in three Canadian provinces (Quebec, Ontario, and British Columbia) between 2000 and 2005 followed until 2008 from the National Trajectory Project and a national sample of 3,20,919 Canadians convicted of criminal offense from Statistics Canada's Criminal Court Survey.ResultsIndividuals found NCRMD are 3.8 times (95% CI 3.4–4.3) more likely to be detained than convicted offenders as well as 4.8 times (95% CI 4.5–5.3) and 2.9 times (95% CI 2.6–3.1) less likely to be released from detention and supervision, respectively. One year after the verdict, 73% of the NCRMD accused were still under legal supervision and 42% were still in detention, whereas these proportions were, respectively, 41 and 1% for their convicted counterparts. Interaction effects show that sex, age, jurisdiction, number of offenses, and severity of crimes committed have a differential impact on decisions applied to NCRMD accused compared to convicted persons.ConclusionContrary to popular perceptions, the insanity defense is not a loophole. Differences as to factors influencing the trajectories of the two samples confirm that Review Boards are able to distance their practices from the criminal courts and can set aside, at least in part, the principles of proportionality and punitiveness governing the traditional sentencing practices.

This paper provides an overview of the criminal justice system's folk-psychological understanding of people and behavior. The attempt of this paper is to explore some of the complex literature focused on the criminal justice system in order to provide a concise account of its foundational beliefs about responsibility and the human condition. Although the effectiveness of the criminal justice system is a topic of contention, many scholars and legal actors agree that this institution is in part designed to impact people's decisions and behavior. The law's understanding of how people think and on what basis they act is thus of fundamental importance. This paper explores three areas where the law is willing to lessen prescription of criminal responsibility or finds a person not guilty despite their having engaged in apparently wrongful conduct. First, the law's default understanding that people are rational agents is tempered by its acknowledgment of the human condition. Second, the law recognizes that some people who engage in wrongful conduct fall outside the ambit of criminal law. Third, the law embraces a more nuanced view of blame when determining appropriate punishment, taking into account the impact that an unfair social structure has on individual responsibility. [ABSTRACT FROM AUTHOR]