Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper

6. Bridging with Social Services

Families affected by FAS frequently require the services of specialists in substance abuse, developmental disabilities, and education. Therefore, these disorders lie within the purview of many groups but are clearly not the full responsibility of any one. All groups will accept, or have accepted, an interest in handling an appropriate piece of the problem, but no one is in a position to lead and coordinate. Hence, there is no group to which government can look for leadership, and no group is focused on advocacy education about the disorders. Attention to FAS, ARBD, and ARND, then, is structurally marginalized, and like any problem that falls between organized disciplines, progress is unavoidably hampered. Both FAS research and service delivery suffers. [110]

The youth justice system must respond to criminal behaviour of youth in an appropriate way that takes account of their special needs. The criminal law may be used to justify proportional interventions into the lives of youth who have FASD. However, effective rehabilitation may require long-term life changes, such as establishing structured prosocial living environments, long-term mental health treatment, and extended education / vocational training. To accomplish these long-term changes it is necessary to look to various social services. The administration of child welfare services, mental health, and education, all fall within the jurisdiction of the provinces and territories. It is important that the youth justice system work collaboratively with these social services. This section examines the ways in which other systems can be constructively involved, when the youth justice system responds to a youth who has FASD.

It is axiomatic that it is necessary to identify individuals who have FASD in order to respond to their needs. Work to accomplish this objective is underway. However, the prospect of implementing a widely used screening or diagnostic tool raises issues related to resource limitations. In addition, mental health screening raises issues relating to consent. A diagnosis of FASD could have a significant impact on how a youth is treated by the system. Thus, an issue that would need to be explored is whether or not it would be necessary to obtain informed consent from the youth before administering the screening measure.

Section 35 of the YCJA was intended to help integrate the social welfare and justice systems.

35. In addition to any order that it is authorized to make, a youth justice court may, at any stage of proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.

There are two points that are somewhat unclear within this provision. First, it is not clear what is meant by "child welfare agency". The term could be constructed narrowly to refer simply to "child protection services". An alternative interpretation, which is supported by the Department of Justice, is that that provision should be read broadly to include programs that promote social welfare, including mental health services, and education.

The second term that is subject to interpretation is "referral". A distinction should be drawn between a "referral" and "order". [111]

Section 35 permits the court to refer a young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services. This referral is not an order for assessment. The section does not require that the assessment be conducted and it does not require that an assessment report be submitted to the court [112].

In addition, s. 35 is not in and of itself a means to conclude proceedings in youth justice court [113].

Barnhorst provides the following interpretation of the purpose of s. 35:

The YCJA reflects a basic policy position that the criminal justice system should not be used as the primary way of addressing the child welfare needs of youth…

A criminal justice intervention may attempt to address a youth's child welfare needs as part of a sentence that is intended to promote the rehabilitation of the youth. However, the sentence must not exceed what is a fair and proportionate response to the offence that the youth has committed. The child welfare needs of the youth may be well beyond the proper scope of the criminal law or may not be directly relevant to the offence committed.

Section 35 is a legislative reminder to judges that the child welfare needs of youth in conflict with the law are important and should not be ignored simply because they cannot be addressed through the criminal law. If a judge believes that a young person before the court may have child welfare needs that are beyond the proper scope of the criminal justice system, it is in the interests of the young person and of society for the judge to bring his or her concerns to the attention of the child welfare authorities…[114]

Thus, even in cases where a youth has committed a relatively minor offence, the court has the ability to call upon other social services, with the view to giving the youth the opportunity to accept help that is available.

The YCJA places a significant emphasis on the use of extrajudicial measures as an alternative to the formal prosecution of youth. The YCJA declares that extrajudicial sanctions are, in principle, "often the most appropriate and effective way to address youth crime" [115] and that "extrajudicial measures should be used if they are adequate to hold a young person accountable for his or her offending behaviour" [116].

Sections 6 and 7 of the YCJA empower police officers to address youth misconduct using warnings, cautions, and referrals. Police referrals represent an initial point where a youth with FASD could be put into contact with social services that they require. It is desirable to educate police to recognize youth who may be affected by FASD so that they can make appropriate referrals.

The Department of Justice's Youth Justice Renewal Fund (YJRF) has supported two initiatives that have been aimed at educating and developing expertise amongst police. First, the YJRF provided resources to the Lethbridge Police Service, to support a project that engaged a community youth worker to identify youth affected by FASD and other developmental disabilities, to recommend whether or not a identified youth should be diverted from the legal system, and to liase between the youth's family, the school, and the community. Second, the YJRF provided a modest grant to the Winnipeg Police Service Training Division to reproduce a booklet entitled "Fetal Alcohol Spectrum Disorder - FASD Guidebook for Police Officers". The publication is being used to promote awareness, identification, appropriate intervention and prevention of Fetal Alcohol Spectrum Disorder.

Serious behaviour that requires a more formal response than a warning, caution, or referral, can be addressed with an extrajudicial sanction, which is provided by s. 10. For example, a sanction might specify that a youth receive treatment within the community for a set period of time. A youth cannot, however, be compelled to comply with the terms of the sanction. If the youth thinks the terms are too onerous they can express a wish to have the charge dealt with by the youth justice court.

Section 10(2) sets out a number of conditions that must be met for a youth to participate. In some cases youth with severe deficits related to FASD may not be able to satisfy these conditions. Section 10(2)(c) requires that the youth consent to participate in the program. Severely affected youth may not be competent to consent. Similarly, a young person may not be able to meaningfully exercise their right to counsel which is provided by s. 10(2)(d). In addition, if the youth is unfit to stand trial, then it might be argued that the prosecution is "barred at law" and that condition 10(2)(g) cannot be met.

In cases where the youth has committed a serious violent offence, the police and Crown will likely advance formal prosecution against the youth. In such cases, it may be within the realm of proportionality to address the youth's needs as part of a youth sentence. In the case of FASD youth, the development of effective programming will often require the collaboration with social services offered by the province or territory. As previously discussed, the YCJA provides two sentences which may be useful for accomplishing this objective: probation / intensive supervision and support, and intensive rehabilitative custody and supervision.

A pilot project, which was launched in March 2003, is underway in British Columbia for the development of effective programming for youth in conflict with the law who have FASD. The project is titled the "Specialized Assessment and Program Pilot Project for Young Offenders with FAS/E". The project represents a partnership between Youth Justice Policy (Department of Justice Canada), the Pacific Legal Education Association, the Asante Centre for Fetal Alcohol Syndrome, and the Ministry of Children and Family Development for British Columbia.

The goal of the project is to provide an effective alternative to custody through the development of individualized treatment programs and coordinated care plans for youth who are in conflict with the law and have been diagnosed with FASD. This initiative involves (a) providing individualized assessments, (b) establishing an intensive support and supervision program, (c) arranging residential placements where needed, and (d) delivering post-program follow-up services with families. Probation officers will make referrals to the program. Placements will be accomplished through court orders under the intensive support and supervision sentence.

Another way in which experts could constructively inform the youth justice system is through the creation of youth justice committees under s. 18. These committees could have a positive influence on the youth process through the conferencing procedures set out is ss. 19 and 41.

  • 19.(1) A youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker may convene or cause to be convened a conference for the purpose of making a decision required to be made under this Act.

  • (2) The mandate of a conference may be, among other things, to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, including the review of sentences and reintegration plans.

  • 41. When the youth justice court finds a young person guilty of an offence, the court may convene or cause to be convened a conference under section 19 for recommendations to the court on an appropriate youth sentence.

It is important to consider practical, in addition to legal, ways to promote collaboration. A simple and direct way is to promote opportunities for dialogue between stakeholders in the federal government, the provincial and territorial governments, non-governmental organizations, and the private sector. The YJRF has participated in two such initiatives to date.

A conference was held in Hamilton Ontario in October of 2002. The focus of the meeting was discussion of the impact of FASD in relation to education, employment, welfare, and justice. The conference participants were service providers who work with homeless persons, criminal high-risk individuals, Aboriginal communities, and mental heath groups. The conference was funded jointly by Human Resources Development Canada, Health Canada, and the Department of Justice.

A provincial gathering, titled "Circle of Hope: Knowledge, Understanding, Solutions", was held in Fredericton, New Brunswick in November 2002. It brought together community service providers, government service providers, policy makers, the private sector, and families of people affected by FASD. The gathering was intended to (a) build and strengthen networks between families affected by FASD and to link those families with service providers, (b) discuss best practices in providing service to persons who have FASD, (c) develop public education strategies on FASD, and (d) raise awareness about FASD.

  • [110] IOM, supra note 5 at p. 194.
  • [111] See YCJA, s. 34(1) "A youth justice court may, at any stage of the proceedings against a young person, by order require that the young person be assessed…".
  • [112] D. Barnhorst "Section 35-Youth Criminal Justice Act - Referral to Child Welfare Agency" (October 2003) [unpublished, contact author].
  • [113] See Bala, supra note 107 at 314.
  • [114] Barnhorst, supra note 112.
  • [115] Section 4(a), YCJA.
  • [116] Section 4(d), YCJA.
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