Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper
- 5.1 Identification of FASD at Sentencing
- 5.2 FASD as an Aggravating and Mitigating Factor at 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.  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),  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  , 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,  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,  the Superior Court followed Gray and quashed a court order  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.  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. 
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.)  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.),  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. 
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.)  and R v. B. (J.A.)  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.  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.)  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… 
In R. v. M. (R.B.)  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. 
-  The provinces have been willing to bear the costs associated with diagnosing FASD under court ordered psychological assessments, s. 34, YCJA.
-  R. v. M.(B),  SKPC 48 (Sask.Prov.Ct.).
-  As indicated by her other reported judgements related to FAS: R. v. D. (W.),  S.J. No.70 (Sask.Prov.Ct.); R. v. K. (L.E.),  SKCA 48 (Sask.Prov.Ct.); R. v. L. (M.) (2000), 187 Sask R. 195 (Sask.Prov.Ct.).
-  R. v. Gray (2002), 169 C.C.C. (3d) 194 (B.C.Sup.Ct).
-  R. v. Creighton,  BCSC 1190 (B.C.Sup.Ct).
-  Under s. 672.12 of the Criminal Code.
-  See D. Paciocco & L. Stuesser, The Law of Evidence,3rd ed., (Toronto: Irwin Law, 2002) at 376.
-  In R. v. Harris,  BCCA 152, the Crown appealed a sentence where the trial judge had proceeded from her assumption that the accused had FAS. The offender subsequently received a forensic examination, which diagnosed the accused with antisocial personality disorder, but found that his condition was not related to FASD. The court ultimately held that that the trial judge had erred in assuming that the accused had FAS.
-  R. v. T. (D.L.) (2000), 319 A.R. 29 (Alta.Prov.Ct.).
-  Ibid. at paras 10-11.
-  N.(S.L.), Re.,  CarswellSask 866 (Sask.Prov.Ct.).
- [87} R. v. B.(J.A.),  ABPC 141 (Alta.Prov.Ct.).
-  See R. v. P. (S.L.) (2002), 225 Sask. R. 22 (Sask.Prov.Ct.); R. v. Jack,  YKSC 55 (Y.Sup.Ct.)(functions at a much younger age); R. v. K. (D.E.),  ABPC 110 (Alta.Prov.Ct.) (capacity warrants diminished accountability); R v. M. (B.),  SKPC 83 (Sask.Prov.Ct.) (lack of insight into cause/effect relationship); R. v. M. (L.E.),  M.J. No. 62 (Man.Prov.Ct.)(major mitigating factor); Contra R. v. J. (E.L.),  Y.J. No. 19 (Y.Youth Ct.)(impulsivity related to FAS not a mitigating factor).
-  R. v. L. (J.G.) (1996), 75 B.C.A.C. 227, (B.C.C.A).
-  Ibid. at para 8.
-  R. v. M. (R.B.) (1990), 54 C.C.C. (3d) 132 (B.C.C.A.).
-  Ibid. at paras 15-16.
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