Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper
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  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,  and an absolute discharge.  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. 
Sanctions that order the youth to forfeit money, such as fines,  and other restitution orders,  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,  unemployment is a common secondary disability amongst persons who have FASD.
Similarly, probation  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.  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,  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.  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.  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.  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. 
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. 
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.),  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 inpatient 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. 
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.
-  Section 38(2)(e), YCJA.
-  Section 42(2)(a), YCJA.
-  Section (42(2)(b), YCJA.
-  The principle that punishment and the promotion of welfare must be considered separately is reflected in s. 39(5) of the YCJA, which prohibits the use of custody to deliver social services to youth.
-  Section 42(2)(d), YCJA.
-  For example, compensation 42(2)(e), restitution 42(2)(f), pay purchasers 42(2)(g), compensation in kind 42(2)(h), community service 42(2)(i).
-  Streissguth, supra note 14.
-  Section 42.(2)(k), YCJA.
-  Sections. 42.(2)(n)(o)(p)(q), YCJA.
-  R. v. Daniels (1999), 130 B.C.A.C. 317 (B.C.C.A.).
-  R. v. Gladue,  1 S.C.R. 688.
-  P. Gendreau, T. Little, C. Goggin "A meta-analysis of the predictors of adult offender recidivism: what works!" (1996) 34 Criminology 575.
-  Section 42(2)(r), YCJA.
-  Section 94(19), YCJA.
-  N. Bala. Youth Criminal Justice Law. (Toronto: Irwin Law, 2003) at p. 490.
-  R. v. K. (L.E.),  SKCA 48 (Sask.C.A.).
-  Ibid. para 51.
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