Landing in the Cuckoo's Nest: The Hospital Disposition of Guilty Mentally Ill Offenders - Lessons from the United Kingdom

Abstract

This article explores the current schemes for sentencing guilty mentally ill offenders in Canada and the United Kingdom. The author highlights the deficiencies of the current Canadian scheme, arguing both that it is limited to the traditional sentencing smorgasbord and that principles of sentencing are difficult to balance with respect to guilty mentally ill offenders. In his analysis of the mental health sentencing dispositions available in the United Kingdom, the author assesses how such a scheme could be implemented in Canada and what modifications are necessary in order to better conform with Canadian law and policy, in particular, the areas concerning disposition thresholds, consent to treatment and discharge are examined. The author concludes that implementation of a hospital disposition in the Canadian sentencing regime is necessary to overcome conflicting sentencing principles and correctional aims, to address the lack of correctional programs and infrastructure courts encounter when sentencing guilty mentally ill offenders, and to enhance the protection of society — the primary goal in sentencing.