Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper
- 4.1 Proportionality and Provincial Review Board Dispositions
- 4.2 Chronic Unfitness
- 4.3 Capping Provisions
- 4.4 Duty to Provide Treatment
- 4.5 Proportionality and Sentencing
This section explores the possibility that youth who have FASD might face more intrusive interventions than warranted by the severity of their alleged offence. First, provincial Review Board dispositions will be discussed. Second, sentences issued to convicted youth will be considered.
Disposition options for mentally disordered accused are set out in s. 672.54 of the Criminal Code; they are (a) absolute discharge, (b) discharge subject to conditions, and (c) hospital detention. The choice of disposition must be guided by several factors, including the protection of the public, the accused's mental condition, the accused's reintegration into society, and the accused's needs. In addition, the accused is entitled to the least onerous disposition that will achieve these objectives.
If the accused was found UST then the Court may issue a mandatory treatment order.  There must, however, be a real possibility that the accused can be made fit in a short period of time. Given the stability of cognitive and intellectual deficits associated with FASD, it is unlikely that treatment orders will be applicable in the case of accused persons with FASD.
According to R. v. Winko,  in the case of an NCRMD accused person, the first question in a disposition hearing is whether the accused poses a threat to the safety to the public; if the accused does not, then he/she must receive an absolute discharge. The initial threshold decision does not apply to accused persons who have been found UST, according to the Criminal Code, because absolute discharges are not available to them.
If the accused represents a significant threat to the public, or was found UST, then the Court must determine if the test set out in s. 672.54 can be met with a discharge into the community with conditions.  Lastly, if the accused represents too great a risk to the public, they must be detained in custody. 
In the case of an NCRMD accused, disposition hearings must be held annually until the Review Board decides that the accused no longer posses a risk to society and is suitable for an absolute discharge. The UST accused is also granted regular hearings, which continue until he/she is fit to stand trial, until the Crown can no longer make their prima facie case,  or until the Crown otherwise stays the charges. Thus, under the Criminal Code provisions, accused persons who are UST because of the lifelong cognitive and intellectual deficits associated with FASD face the possibility of indefinite control by the State.
The constitutionality of s. 672.54, which sets the dispositions that are available for mentally disordered accused persons, has been challenged under the Charter, on the grounds that it does not allow chronically unfit accused persons to extricate themselves from the powers of the Review Board.
As previously described, in R. v. J. (T.),  the accused had been repeatedly found unfit to stand trial because of his cognitive deficits associated with FAS. At the time of the hearing, the accused had been subject to state control for seven years. If he had been convicted at the outset, he could not have received a sentence greater than two years. In a subsequent case,  T.J. challenged the constitutionality of his ongoing supervision in the community, under s. 672.54(b). His challenge was based on sections 7 (life, liberty, and security of the person), 9 (detention or imprisonment), 12 (treatment or punishment), and 15 (equality before and under law) of the Charter.
The Court found that T.J.'s s. 7 rights had been violated. His liberty was restricted by the ongoing terms of the conditional discharge. He had not had the benefit of a fair trial to determine his guilt or innocence. The Crown's obligation to periodically demonstrate their prima facie case is not onerous enough to warrant the ongoing deprivation of liberty. The Court held that the sum effect of the legislation was to give the State more control over UST youth, who have not had a case proved against them, than NCRMD youth, who have had a case proved against them. The Court held that the violation could not be justified under s. 1 because the legislation was overbroad and because of the sanctity of s. 7.
The Court also found a violation of T.J's s. 15 rights. Individuals with mental illness have been subject to historic disadvantage. T.J. was disadvantaged compared to the population at large because he was subjected to indefinite control by the state without having been proved guilty. Further, because of the permanent nature of FAS, he was disadvantaged compared to other unfit youth who could be treated. T.J. was granted a judicial stay. The Court read down the legislation by empowering the Review Board to grant absolute discharges under 672.57(a) in cases where the accused is terminally unfit to stand trial.
The Supreme Court of Canada will be addressing this issue. R. v. Demers,  involved a man who was found UST because of intellectual impairment. The accused was granted a conditional discharge by the Review Board, but remained UST. The accused brought a motion for a stay of proceedings as a remedy for an alleged infringement of his rights under sections 7, 11(b) and 15(1) of the Charter, and challenged the constitutionality of s. 672.54 of the Criminal Code. In contrast to the holding in J. (T.), the Quebec Superior Court dismissed the motion and held that the Criminal Code fitness provisions are constitutional. The accused appealed the decision. In an interesting development, the Supreme Court adjourned the case, and requested additional submissions on the issue of whether or not s. 672.54 is constitutional with respect to the division of powers. 
The Standing Committee Report explored the issue of chronic unfitness. The Committee stated that the Criminal Code provisions seem to be premised on the notion that the accused's unfit condition is temporary and can be treated to make the accused fit to stand trial. The Committee considered, and rejected, the option that Review Boards should be able to grant absolute discharges under s. 672.57(a). The Committee concluded that only courts should have the power to grant absolute discharges to chronically unfit accused persons. They are in the best position to weigh public interest factors against the rights of the accused.
The Committee recommends that section 672.54 of the Criminal Code be amended to allow the courts to discharge a permanently unfit accused either on its own volition or following the recommendation of a Review Board.
In a response to this recommendation, which supported the current provisions, the government of Canada stated that (a) the system must be flexible enough to detain people who are dangerous irrespective of the severity of the alleged offence, (b) it is the Crown's prerogative to prosecute,  stay, or withdraw charges, (c) that the ongoing conditions of conditional discharges are not necessarily onerous, and (d) that the legislation includes safeguards which mandate the imposition of the least restrictive conditions upon the accused that are appropriate in the circumstances.
Nevertheless, the government recognized that that it may not be in the public's best interest to maintain supervision over chronically unfit accused. As a solution, it was suggested that the Review Board should be given the power to return an unfit accused to court for a hearing to determine if a judicial stay should be granted where (a) there is no reasonable prospect of their becoming fit and (b) the accused does not represent a significant threat to the public. At the court hearing, the Crown would have the opportunity to enter submission regarding the public interest and the risk posed by the accused. In reaching its decision, the court would also consider the length of time that the accused had been under supervision.
One way to reduce disproportionate outcomes would be to cap the length of time that a mentally disordered youth could remain under the jurisdiction of a provincial Review Board. The issue of capping will be addressed next.
The unproclaimed capping provisions of the Criminal Code  were set out to ensure proportionality between the time that a mentally disordered accused could remain subject to a provincial Review Board and the gravity of their alleged crime. Implementation of the capping provisions had been delayed to give the provinces time to review their civil commitment legislation, to ensure that it could be used to incapacitate and treat a dangerous individual upon his / her release from the provincial Review Board. The YCJA contains parallel capping provisions that are dependant upon the proclamation of the Criminal Code provisions. The YCJA provisions reflect the lesser magnitude of youth sentences relative to adult dispositions.
The Standing Committee Report recommended that the unproclaimed capping provisions should be repealed. The Committee noted that the capping provisions were not required by the Charter,  and was persuaded by the views of treatment providers who were opposed to the capping provisions on the grounds that dangerous persons would have to be released, and that the civil commitment protocols were not sufficient to ensure public safety.
The Government of Canada,  in its response to the Standing Committee Report agreed that the unproclaimed capping provisions should be repealed. It was stated that there is a distinction between supervision aimed at restoring an accused's mental health, and supervision as punishment. The government noted that the mental disorder provisions had been upheld by the Supreme Court in the absence of the capping provisions. The capping provisions are seen to be unnecessary because detention is not indeterminate: according to Winko, an absolute discharge must be granted to NCRMD accused persons who do not pose a risk to the public. Ultimately, the government declared its intention to amend the mental health provisions to better protect the rights of chronically unfit accused persons, and to repeal the capping provisions.
There are potential Charter issues relating to the conditions under which mentally disordered accused persons must serve their dispositions. Under the Criminal Code mentally disordered accused persons are entitled to the least restrictive conditions that are appropriate in relation to the risk they pose, and they must be provided with effective treatment. The positive duty to provide effective treatment stems from the fact that the length of the mentally disordered accused's imprisonment depends, in part, upon the quality of services afforded to him or her. These principles, however, often come into conflict with fiscal realities.
The case of J.(D.) v. Yukon Review Board  involved a young adult who had plead guilty to sexual assault charges, but who was found NCRMD because of deficits associated with FAS. Counsel for the accused brought a habeas corpus motion, backed by the Charter, to challenge the Review Board's decision to extend the accused's interim imprisonment in a secure correctional facility, which had been designated a hospital by the province. The Board had recognized that the facility was not, in actuality a hospital, and that the accused's treatment options were limited; overall, they described the circumstance as being "unacceptable". The best treatment option for the accused was a community-based program at the Adult Resource Centre. The board did not consider this a viable option, however, because there were administrative obstacles to transferring funds between the criminal and civil commitment systems.
The Court held that it had the power to respond to the motion, notwithstanding the fact that the accused had not exhausted the appeal process. The writ of habeas corpus has been adapted to provide a remedy to Charter violations, under s. 24(1). The court found that the accused's s.7 rights had been violated. He was entitled to the least secure form of detention, consistent with protection of the public. By the Review Board's admission, detention in the correctional facility was not the least restrictive option.
The Court recognised that an absolute discharge was not an appropriate remedy because of the ongoing risk posed by the offender. The Court ordered that accused must be transferred into the care of the Adult Resource Centre; the administrative and fiscal barriers would have to be overcome.
Assuming that FASD can be managed or treated to some extent, it is apparent that effective rehabilitation will require intensive support over a lengthy period of time. The principle of proportionality mandates that the State's response to an offender's crime must be measured. Proportionality is a principle of fundamental justice. It is expressed in the YCJA under s. 38.(1)(c):
"the sentence must be proportionate to the seriousness of the offence and the degree of responsibility of the young person for that offence". Although the YCJA has a rehabilitative focus, which necessarily involves tailoring sentences to individual accused persons, dispositions must remain tethered to the principle of proportionality. Courts are not justified in "doing whatever it takes" to correct the lives of youth with FASD.
Whether or not youth who have FASD tend to receive more intrusive sentences relative to youth in general is a question that can be answered empirically. To date there has been no research on this issue. One way to explore this question would be to compare the sentences given to youth who have FASD with those given to other youth for similar offences. A lack of parity between sentences given to youth who have FASD and other youth would indicate a problem with proportionality. This study would have to account for a number of confounding factors. On average, Youth who have FASD would likely have a greater number of aggravating factors at sentencing due to secondary disabilities of the disorder.
-  Section 672.59, Criminal Code.
-  R. v. Winko,  2 SCR, 925 [hereinafter Winko].
-  Section 672.54(b), Criminal Code.
-  Section 672.54(c), Criminal Code.
-  Under the YCJA the Crown must make their prima facie case on a yearly basis.
-  R. v. J. (T.),  Y.J. No. 124 (Y.T.Youth Ct.).
-  R. v. J.(T.),  Y.J. No. 57 (Y.Terr.Ct.).
-  R. v. Demers,  J.Q. no 590 (Sup.Ct.Q).
-  R. v. Demers  S.C.J. No. 58.
-  "Government Response", supra note 36.
-  See ss. 672.65, 672.66, 672.79, 672.8, Criminal Code.
-  Winko, supra note 62.
-  "Government Response" supra at note 36.
-  R. v. Lepage,  2 S.C.R. 744.
-  J.(D.) v. Yukon Review Board,  YSTC 513 (Y.Sup.Ct).
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