NP View: Excessive leniency for the mentally disabled robs society of justice

An Ontario Superior Court of Justice courthouse in Toronto. Photo by Stan Behal/Postmedia

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Canadian courts have become so soft on the mentally disabled that they can no longer be trusted to protect Canadians.

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Take the case of an autistic and intellectually disabled Ontario man: when his little sister was 12, and he was 16, he began sexually assaulting her. It went on for four years — and when he was finally convicted for it, his judge gave him a sentence under half the length required in the Criminal Code, and ordered that it be served at his grandmother’s house instead of prison.

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He would go into his sister’s bedroom to do it, and sometimes ambushed her at the family cabin. He would watch porn and emulate it on her. He would tell her that it was for her own good, that it was preparation for marriage. He would reward her sometimes with money or candy. It ended in May 2022, when she made an audio recording of her brother sexually assaulting her at a friend’s suggestion, and reported the long-term abuse to her high school guidance counsellor. 

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The ensuing charges, two counts of incest and one count of sexual assault, should have landed the man in jail for at least five years. That’s the mandatory minimum for incest with a person under the age of 16, the bare standard settled upon by Parliament. But Justice Anne Molloy of the Ontario Superior Court said that such a sentence would constitute “cruel and unusual punishment,” and arrived at two years less a day of house arrest with grandma instead. 

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It could have been worse: the man’s defence lawyers, Boris Bytensky and Kathryn Doyle, tried to argue that the Youth Criminal Justice Act should apply not only to people who are literally minors, but also to people whose intellectual age is below that of an 18-year-old. Because the man had the mental capacity of a child between the ages of nine and 12, they argued, his Charter rights required him to be treated as if he were that age. 

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That said, the sentence discount was still appalling in its own right. He sexually enslaved his sister. He knew it was wrong because he took steps to prevent pregnancy or discovery, and he’d stop if it sounded like their parents had come home. He was able to graduate from high school, get a driver’s license, and work a forklift job (albeit at his dad’s workplace), without depending on welfare; he lives with a degree of agency. A prison sentence that respects the moral code Canadians literally signed into law shouldn’t be out of the question just because the man would have a hard time of it — prison is tough for everybody, and the sad reality is that many of those incarcerated have a personal background of disadvantage.

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Sadly, this lenient treatment isn’t an anomaly. Courts across the country resort to the same logic to give convicted and suspected sexual predators a pass. In 2023, an intellectually disabled man was given the same sentence as in this more recent case — two years less a day on house arrest — for impregnating his intellectually disabled daughter who was 31 years his junior.