Important things to remember about young people with FASD going through the youth justice system
- It’s important to avoid criminalizing disability
- FASD diagnoses or suspected diagnoses are relevant but might not be explained properly to a court
- Criminal courts often do not have the resources or supports to assist with FASD
- Custody is not a “safe place” or an appropriate place for youth with FASD
- The goal for youth with FASD should be to exit the justice system as quickly as possible – it is very easy to get trapped.
How is the criminal justice system in Canada different for young people than for adults?
The Youth Criminal Justice Act (YCJA) (https://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html) governs Canada’s youth justice system. It applies to young people charged with offences between the ages of 12 to 17 or to adults who are accused of having committed offences between the ages of 12 and 17.
For information about specific parts of the YCJA, see also https://jfcy.org/en/rights/criminal-youth-criminal-justice-act/, https://www.cleo.on.ca/en/projects/youth-criminal-law)
Under the YCJA, there is a presumption that youth have less understanding of their wrongdoing than adults because:
- Young people have a reduced capacity for moral judgment
- Young people have heightened vulnerability
- Young people have less maturity
(see R v. D.B., 2008 SCC 25, http://jfcy.org/en/cases-decisions/r-v-d-b/)
These presumptions are heightened for people affected by FASD. FASD can also further diminish moral blameworthiness, depending on the effects of FASD for that young person and the circumstances of their alleged offence.
(See R. v M.G, 2017 ABCA 163, https://www.canlii.org/en/ab/abca/doc/2017/2017abca163/2017abca163.html?resultIndex=4; https://jfcy.org/en/blog/r-v-manitowabi-the-significance-and-limits-of-a-diagnosis-of-fasd-for-young-persons-involved-in-the-criminal-justice-system/; https://fasdjustice.ca/en-ca/case-law/youth-sentencing/british-columbia-r-v-bgl-2005-bcpc-643.html)
Accountability and rehabilitation
The YJCA is focused on protecting the public in three key ways:
- Holding young people accountable through measures that are appropriate for the seriousness of the offence and the degree of responsibility for the young person
- Promoting rehabilitation and reintegration of young people who have committed offences
- Supporting the prevention of crime by referring young people to programs and services in the community to address circumstances underlying their offending behaviour
(YCJA, s. 3)
The YCJA also sets out unique sentencing principles for youth focusing on fair sanctions that promote rehabilitation and reintegration into society. (YCJA, s. 38)