5. 5.0 Sentencing
   1. 5.1 Identification of FASD at Sentencing
   2. 5.2 FASD as an Aggravating and Mitigating Factor at Sentencing
   3. 5.3 Sentencing OPtions udner the YCJA

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5. Sentencing

The fact that an accused person has FASD is relevant at sentencing. It has been considered an aggravating and a mitigating factor at sentencing. It may also inform the court's determination of which sentence will best serve the purposes and principles of sentencing.

There are several ways in which the fact that a youth has FASD might come before the court at sentencing: counsel may raise the issue, a pre-sentence report (PSR) may document a prior diagnosis of FASD, or a youth court may order a psychiatric report.

Counsel may be reluctant to raise the fact that the accused has FASD in fear that it might be considered an aggravating factor, or that the accused may receive a more severe sentence because of their needs rather than the gravity of their crime. An additional barrier is the cost associated with diagnosing FASD. The diagnosis of FASD is a special service and is not covered by provincial health care. [76] Consequently, the fact that the accused has FASD may not come to the court's attention until the stakes are high: when the threat to the youth's liberty outweighs the tactical risk and financial cost associated with the diagnosis.

An accused person's prior diagnosis of FASD often comes to the Court's attention through a PSR. Pre-sentence reports are mandatory under the YCJA when the court is considering a sentence involving incarceration. The YCJA sets out the required contents of PSR in s. 40(2). The required contents do not include a review of the youth's mental health status. However, prior diagnoses of FASD are often included under s. 40(2)(f), which includes any information the director deems relevant.

A third way that FASD comes to the Court's attention is through direct inquiry. Section 34 of the YCJA empowers a Youth Justice Court to order a medical, psychological, or psychiatric assessment, if the court believes it is necessary to make or review a youth sentence. Section 34 is subject to certain restrictions: the court must have reasonable grounds to believe that the accused is suffering from physical, mental, or psychological disorder; the accused must have a history of repeated offences; or the accused must be facing a charge for a serious violent offence.

Under certain circumstances the court may remand a youth in a psychiatric facility for up to 30 days so that the assessment can be conducted: (a) where the consent of the youth has been obtained, or (b) it is necessary to complete the assessment, or (c) the youth is being detained on other grounds.

In R. v. M.(B), [77] Judge Turpel-Lafond ordered a psychiatric assessment, under s. 34, which resulted in the Aboriginal accused being diagnosed with Alcohol Related Neurological Deficits. Given the Judge's familiarity with FASD [78] , and the fact that the doctor who assessed the accused was a specialist in FASD, it seems probable that the Court had directed an assessment specifically for FASD. Assessment for FASD is a specialized medical service. There are relatively few practitioners who are competent at diagnosing FASD. The provinces and territories have been willing to undertake specialized assessments according to court orders under s. 34 of the YCJA.

It is important to note that there has been litigation in the adult courts over the issue of whether or not is it appropriate for the courts to direct the provinces to incur expenses related to specialized assessments for FASD. In R. v. Gray, [79] the Crown was successful in its application to quash a judicial order, issued under sections 672.12 of the Criminal Code, for the accused to be assessed by a medical practitioner familiar with FASD. The Superior Court held that the Criminal Code does not empower judges to order assessments at medical facilities that have not been designated by the province. In addition, it was held that although judges are obliged to state the purpose of the order, it is inappropriate for them to direct the assessment towards a particular diagnosis. Lastly, it was held that the courts do not have the jurisdiction to order provinces and territories to expend funds in order to provide specialized services.

The Court rejected the accused's argument that the province's failure to provide an FASD assessment violated his Charter rights. The Charter would come into play only if a general forensic and neurological assessment, which had been offered by the province, indicated the possibility of FASD, and if the accused had exhausted all special requests to the Province's Minister of Health to pay for the assessment.

In a subsequent case, R. v. Creighton, [80] the Superior Court followed Gray and quashed a court order [81] that ordered the accused to be assessed, at the provinces expense, by a doctor who had expertise in FASD prior to sentencing.

Another way in which courts have attempted to recognize FASD is through judicial notice. In this context, the use of judicial notice is problematic. According to the rules of evidence, a court may legitimately take judicial notice of a fact that is notorious in the community and cannot be questioned reasonably. Judicial notice is not a vehicle for judges to exercise their special knowledge or expertise. [82] It might be reasonable to ask the court to take judicial notice of the fact that "maternal alcohol consumption can lead to significant birth defects in children". However, it would not be reasonable to ask the court to resolve the factual question of whether or not a particular accused suffers from FASD through judicial notice. The diagnostic criteria for FASD are not notorious in the community, or even within the medical profession. Judges cannot be called upon to, in effect, assign medical diagnoses to individuals. [83]

Under the YOA, it may not have been in a youth's interest to be identified, at sentencing, as having FASD. It could have been argued that a youth who has FASD has untreatable deficits and lacks ordinary restraint, and that consequently he/she represents an ongoing risk to the public.

In R. v. T. (D.L.) [84] the youth plead guilty to manslaughter for beating his mother's boyfriend to death with a bat. The youth had been diagnosed with FAS, attention deficit hyperactivity disorder, and oppositional defiant disorder. The Court took notice of the youth's impairments when sentencing him under the YOA. Notwithstanding, the Court rejected the joint submission presented by counsel of two years secure custody and one year probation. The Court imposed a three-year term of incarceration. In giving reasons for the disposition, the Court expressed concerns that the youth would not be manageable in the community because of his poor prognosis for rehabilitation.

Similarly, in R. v. J. (E.L.), [1998] Y.J. No. 19 (Youth Ct.), the Court, when sentencing a youth under the YOA, rejected a joint submission that recommended open custody. The Court held that open custody was inadequate to hold the youth accountable given the number and severity of the charges against the youth, and because of his prior record. The Court held that FASD is not necessarily a mitigating circumstance, but it is a relevant factor to consider at sentencing. In this context, the Court expressed frustration over a lack of appropriate treatment options.

A case such as this clearly points out the inadequacy of the tools provided to deal with such offenders. In short, the options available to the Court reduce themselves to locking this youth up in jail or returning him to the community where there are few supports, and where inevitably, he will cause further disruption, and where he presents a significant danger to himself and others. It is true that open custody placements can be made available; however, E's history in open custody is not encouraging. There have been repeated breakdowns of such placements due to his defiant, aggressive behaviour or self-destructive threats. And of course, placing a young person in closed custody, simply because no more appropriate placement is available, can hardly sit well. Putting someone in jail is a punishment, it is not therapy, and it is not supposed to be a means of managing those with mental deficits. In sum, the Court is left to deal with persons who are unlikely to learn anything from their brush with the law, and without any appropriate programs or placements being available to otherwise modify or control the behaviour of these individuals. [85]

The dangerousness and poor treatment prognosis rationale, associated with FASD, was used by the Crown, under s. 16 of the YOA, to transfer several youth to the adult criminal justice system. In Re. N. (S.L.) [86] and R v. B. (J.A.) [87] the Crown was successful in its applications under s. 16 of the YOA to have the young accused persons transferred to adult court. In both cases, the accused had been diagnosed with FAS. The poor treatment prognosis of the accused persons helped the Crown to satisfy its burden that effective rehabilitation was unlikely to occur within the limited time period afforded by youth dispositions.

Under the YOA, a youth could be transferred to adult court where it was held that the objectives of affording protection to the public and rehabilitation of the young person could not be reconciled. In contrast, s. 72 of the YCJA - which provides that a youth may be sentenced as an adult - places greater emphasis on the gravity of the offence. In addition, section 72 also directs the court to consider the age, maturity, character, and background of the accused. Youth who have FASD tend to be immature and lack sophistication. This factor would likely militate against their being sentenced as an adult.

The cognitive and intellectual deficits associated with FASD have been considered a mitigating factor with respect to the youth's degree of responsibility in a number of cases. [88] Section 38(2)(c) of the YCJA states that a youth's sentence must be "proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence". The argument is that a youth who has FASD is less able to restrain his/her behaviour compared to other youth because of the deficits associated with his/her disorder; accordingly, a youth who has FASD is not as responsible when he/she fails to exercise restraint, and commits a criminal act, compared to other youth.

The British Columbia Court of Appeal considered FASD to be a valid mitigating factor at sentencing under the YOA. In R. v. L. (J.G.) [89] the young Aboriginal accused successfully appealed his disposition resulting from multiple theft and driving charges. In expressing his agreement that the sentence ought to be reduced, Chief Justice McEachern noted:

…I am persuaded to the view that has just been expressed in part because I think this young man has had a very difficult time. The pre-sentence report shows that he suffered from fetal alcohol syndrome and that he has had a series of serious misfortunes in his life… [90]

In R. v. M. (R.B.) [91] the Court granted the sentencing appeal notwithstanding the fact that there had been no error in principle below. The Court of Appeal ordered a pre-sentence report, which stated that the accused "was more than likely suffering from Fetal Alcohol Syndrome at birth". In his reasons for reducing the youth's sentence, the Chief Justice stated the following:

It appears self evident to us that in any population there will be some disadvantaged members who, for many reasons, are likely to fall, or more likely drift, into a life of idleness and crime. Society must be protected from them as best it can, but in some cases it is unrealistic to think that some of these unfortunate persons can be rehabilitated once the cycle starts, by successive and increased periods of imprisonment, specially when, upon release, they are returned to the same environment, lifestyle, frustrations and temptations which contributed to their misfortune in the first place.

This, of course, is especially the case with those of our citizens who have not had the advantages of a stable family structure in their formative years, or were harmed before or at birth, or afterwards by some form of alcohol syndrome, or from other physical or cognitive impairment or from the additional misfortune of abuse in childhood. It appears this accused may suffer from all of these disadvantages. [92]

This discussion will now turn to examine the range of sentencing options provided by the YCJA. In particular, their ability to meet the objectives of sentencing when dealing with youth who have FASD will be discussed.

The purpose of sentencing is set out in s. 38.(1) of the YCJA.

The purpose of sentencing… is to hold a young person accountable for an offence through the imposition of just sanctions that have meaningful consequences for the young person and that promote his or her rehabilitation and reintegration into society, thereby contributing to the long-term protection of the public.

Thus, one of the main objectives of the YCJA is rehabilitation. The substantive provisions of the YCJA sentencing provisions [93] restate that rehabilitation is a dominant sentencing objective, subject to the principle of proportionality.

Section 42(2) of the YCJA sets out the range of sentencing options that can be used to achieve the objectives of sentencing.

The YCJA provides two sentences, which might be described as cautionary in nature: a reprimand, [94] and an absolute discharge. [95] These dispositions may be good options for dealing with offences committed by youth who have FASD: their criminal behaviour is acknowledged, and they are not placed at immediate risk for committing future administrative offences. It is important when sentencing youth to ensure that the limits of proportionality are observed and that the criminal law power is not misused to deliver social services. [96]

Sanctions that order the youth to forfeit money, such as fines, [97] and other restitution orders, [98] may not be suitable for youth who have FASD. Judges are obliged to consider if the youth has the ability to comply with the order. As observed by Streissguth and colleagues, [99] unemployment is a common secondary disability amongst persons who have FASD.

Similarly, probation [100] may not be suitable for youth with FASD. It may be unreasonable to expect a FASD youth, who is having difficulty complying with basic societal norms, to internalize and comply with additional behavioural restrictions. However, subject to the availability of programming it is possible to attach conditions that order the youth to attend special programming in the community. Conceivably, programming aimed at providing FASD youth with daily structure could be of great benefit in assisting them with efforts to comply with the other terms of their probation.

The YCJA introduced the intensive support and supervision order, s. 42(2)(l). This disposition seems particularly well suited for youth who have FASD, and has been used in a number of reported decisions. Intensive support and supervision may provide youth with enough daily structure to give them a reasonable chance of successfully completing their probation. It should be noted that these dispositions are only available in provinces where programs have been implemented by the provincial director.

Under the YCJA, a sentence of incarceration can be given according to the custody and supervision provisions. [101] Some might argue that custodial dispositions are well suited for youth with FASD because they provide structure, which may encourage the youth to attend programming. For example, in R. v. Daniels, [102] the Court dismissed the adult accused's sentence appeal. The defence argued that the sentence of incarceration was too severe and should be reduced to probation because the accused was Aboriginal and had ARND. The respondent had been convicted of breach of probation consequent to his failure to attend sex offender treatment in the community. In dismissing the appeal, the Court noted that the respondent had made progress in the sex offender treatment program while in prison, whereas he had had difficulty following treatment conditions in the community.

There are, however, a number of factors that militate against the incarceration of youth with FASD. Under the YCJA, incarceration is available only if the youth commits a violent offence, if the youth has failed to comply with a non-custodial sentence, if the youth has committed a serious offence and has an extensive criminal history, or if there are exceptional circumstances that warrant the imposition of a custodial sentence, and if no other suitable sentencing alternative exists.

Specific provisions apply in the case of Aboriginal youth.

38(2)(d) all available sanctions other than custody that are reasonable in the circumstances should be considered for all young persons, with particular attention to the circumstances of aboriginal young persons;...

Section 38(2)(d) runs parallel to s.718.2(e) of the Criminal Code, which was interpreted by the Supreme Court in Gladue. [103] In Gladue the majority held that the sentencing judge must consider two factors: (a) the unique systemic and background factors which may have played a role in bringing the Aboriginal accused before the courts and; (b) the type of sentence that would be appropriate given the youth's Aboriginal heritage. It may be argued that the high prevalence of alcohol abuse within some Aboriginal communities can be linked to the historical process of colonization, and that FASD provides a significant contact point with historical disadvantage.

Incarceration may be counter-productive to the objective of rehabilitating youth with FASD. A common justification for not incarcerating youth with FASD is the fear that their risk level will be increased through bringing them in contact with anti-social individuals. Studies have identified that having anti-social associates is the best predictor of criminal behaviour. [104] In addition, it is possible that youth with FASD are vulnerable to being exploited by more sophisticated peers in correctional facilities.

The YCJA provides for a special therapeutic sentence, intensive rehabilitative custody and supervision. [105] This disposition is available if (a) the youth has committed a designated serious violent offence; (b) the youth is suffering from a mental illness or disorder, a psychological disorder or an emotional disturbance; (c) a treatment plan has been developed and there is a good chance that it will reduce the youth's risk to recidivate; and (d) the provincial director agrees to admit the youth. Intensive rehabilitative custody and supervision was intended to be a useful sentence for youth who might otherwise receive and adult sentence.

It is important to consider the issue of "consent" in the context of treatment. The YCJA does not empower the court to force treatment upon unwilling youth. Section. 42(8) of the YCJA states:

(8) Nothing in this section abrogates or derogates from the rights of a young person regarding consent to physical or mental health treatment or care.

As a matter of practice, the court should determine if the youth is willing to undertake the treatment before applying a sentence of intensive support and supervision, or intensive rehabilitative custody and supervision. Youth cannot be compelled to participate in therapy sessions, or to take medication, unless the youth lacks the capacity to give their consent. If a youth does not comply with the terms of an intensive disposition then the provincial director can apply to a youth court for an order to convert the sentence into an ordinary custody and supervision order. [106]

Overall, the YCJA sets out a robust sentencing framework, which provides judges with a range of options at sentencing. The intensive dispositions -- intensive supervision and support, treatment in the community, and intensive rehabilitative custody and supervision - may be well suited for accommodating youth who have FASD. It must be acknowledged, however, that all of these programs are subject to the discretion of the provinces. Bala provides the following observation:

Despite the provision for new sentencing options such as intensive custody and supervision, some of the biggest difficulties in providing rehabilitative services and counselling to young offenders, both in custody and in the community on probation, arise from the failure of provinces to provide an adequate level of funding and service, not from legal concerns. [107]

However, the federal government provides full funding to the provinces and territories for the therapeutic aspects of the intensive rehabilitative custody and supervision disposition.

In R. v. K. (L.E.), [108] the Saskatchewan Court of Appeal, allowed the Crown's sentencing appeal. The trial disposition, made under the YOA, had attempted to provide the youth, who had FAS, with an intensive form of treatment. As part of a probation order the judge ordered that (a) a youth worker with knowledge of FASD should be assigned to work with the offender, and (b) that a case plan should be prepared to arrange npatient substance abuse treatment, educational opportunities, and suitable accommodation for the accused in the community. The Judge was aware that there were no youth workers with the skills necessary to implement the order.

The Court of Appeal held that the court did not have jurisdiction to supervise or direct the province in the performance of its duties, and in particular to direct that it assign a youth worker with specialized skills to work with the young person. Judicial power is derived from statute, and the YOA did not empower the judge to order a specific type of treatment. Similarly, in regards to the case plan, the judiciary cannot direct the executive branch of government.

The Court of Appeal did recognize, however, that the judge was trying to act in the best interests of the youth.

Programs designed to deal with young offenders who suffer from FAS are urgently required. While we recognize the clear separation of powers between the judiciary and the executive branch of government and that the responsibility to develop and implement programming envisioned by the Act rests upon the executive, it is hoped that the executive will react positively to the recommendations which are made by this Court and by the youth court with respect to these young offenders. [109]

As noted, there has been progress in the development of programming that is suitable for youth with FASD. Recent initiatives will be explored in the next section.

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