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

7. For Discussion

The FASD Construct

  • 1. In what areas would it be most beneficial to promote primary empirical research on youth and FASD in Canada?

Fitness To Stand Trial

  • 2. Considering competing Charter issues, does the "limited capacity" test adequately protect youth with FASD?
  • 3. Do the existing procedures adequately ensure that youth who have FASD will be identified? If existing provisions are not satisfactory, how can the youth justice system better identify accused persons who have FASD?
  • 4. What measures can be taken to ensure youth who have FASD are not providing involuntary statements or waivers?
  • 5. Is it acceptable for the Crown to use pre-trial confessions as part of its prima facie case against an UST youth who has FASD?

Criminal Intent

  • 6. Should the definition of not criminally responsible by reason of mental disorder be expanded to encompass irresistible impulses?
  • 7. Should the intent requirement for failure to appear require the Crown to prove that the accused chose to ignore the court appointment, or is the appropriate standard akin to negligence?
  • 8. Should the standard of criminal negligence for youth be changed to take into consideration individual factors such as deficits arising from FASD?

Proportionality

  • 9. Is the solution, posed by the government, to the problem of the chronically unfit adequate to protect the liberty interests of youth with FASD? What incentives would a provincial Review Board have for returning a chronically unfit accused to court for a hearing to be discharged?
  • 10. In light of the fundamental differences between the youth criminal justice system and the adult criminal justice system, would it be desirable to establish capping provisions within the YCJA independent of the mental health provisions of the Criminal Code?
  • 11. Are there administrative and fiscal barriers to providing meaningful treatment options for youth with FASD who have been deemed UST?

Sentencing

  • 12. Under what circumstances is it proper to consider FASD a mitigating factor at sentencing?
  • 13. Under what circumstances is it proper to consider FASD an aggravating factor at sentencing?
  • 14. What options does the court have in responding to a youth who has FASD who does not wish to participate in special programming?
  • 15. How should the youth justice system constructively respond to youth with FASD who repeatedly breach the terms of their sentence?

Bridging with Social Services

  • 16. Would it be desirable to implement a mental health screening procedure to identify youth who have severe mental disorders? At what point of the pre-trial criminal procedure would screening take place? Would mental health screening be economically viable?
  • 17. Can social services be made available to FASD youth who are under the care of the provincial or territorial mental health Review Boards?
  • 18. Could youth justice committees on FASD be an effective way to inform the courts of existing community resources and social services?
  • 19. Could additional conferences on FASD be an effective method for disseminating information and establishing personal relationships between stakeholders in the federal government, the provincial and territorial governments, non-governmental organizations, and the private sector?
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