Abstract
This article describes the advocacy model used by the Youth Criminal Defence Office, a program of Legal Aid Alberta situate in Edmonton and Calgary, Alberta. The model focussed on creating a wrap-around legal approach to young people impacted by FASD that are in conflict with the criminal and quasi-criminal law. Further, the unique staffing dynamic, purposeful training and community invovlement highlight the breadth of knowledge found within the offices and the need to take a multi-disciplinary approach to assist this client group. Last, the artilce discusses gaps in the justice continuum and makes suggestions going forward.
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- 1.
Statutes of the Province of Canada, 2nd Session, Fifth Parliament of Canada, 1857, c.28.
- 2.
R. v. D.B., (2008] 2 S.C.R .3.
- 3.
S.C. 2002, c. 1 as amended.
- 4.
The YCDO was under the leadership of then Senior Counsel Greg Francis who is largely responsible for the synthesis of ideas and information from the meeting. Mr. Francis left the YCDO in December 2012 and is now General Counsel for the Calgary Board of Education.
- 5.
Infra footnote 48.
- 6.
s.c. 2002, c. 1.
- 7.
In R. v.Gladue (1999]1 S.C.R.688, the Supreme Court of Canada interpreted s.718.2(e) of the Criminal Code of Canada. That section requires a sentencing court to consider all available sanctions other than imprisonment that are reasonable in the circumstances with particular attention to the circumstances of Aboriginal offenders. Sentencing courts have requested reports to be prepared for aboriginal offenders that contain, inter alia, a culturally sensitive and relevant background investigation. These reports are referred to as “Gladue Reports”.
- 8.
B..v. D.((.): .B..v.K.CC.D.l. (2005) 3 S.C.R. 668 as appellants and .B... v.P.CB.W.l: R. v. N. (B.V.l.(2006) 1S.C.R. 941 as intervenors.
- 9.
“Legal care” to the author means more than legal representation in court. It includes support and relationship building with the client.
- 10.
This refers to the case of & v. Brydges (1990), 74 C.R. (3d) 129 which established, inter alia, the duty of the police to expressly tell detainees about any Legal Aid and duty counsel services in existence and available at the time of detention.
- 11.
Extrajudicial sanctions refers to a post-charge process that allows for a diversion outside of the justice process. That diversion includes an acknowledgement of accountability and completion of a consequence that is assigned. Upon successful completion the criminal charge is withdrawn in court. See sections 4–12 of the YCJA. In adult court this process is referred to as Alternative Measures and is referred to in s. 717 of the Criminal Code of Canada R.S.C. 1985, c. C-46 as amended.
- 12.
Docket courts are courtrooms specifically designated to hear preliminary matters such as judicial interim release hearings, adjournments and initial pleas or where matters are deal with summarily by guilty plea. They are called “docket” courts because there is a docket list or schedule of pending cases for that particular court per juridical day. Youth charged with criminal or provincial offences (or both) appear in Youth Justice docket court.
- 13.
S. 35 reads: “In addition to any order that it is authorized to make, a youth justice court may, at any stage of proceedings against a young person, refer the young person to a child welfare agency for assessment to determine whether the young person is in need of child welfare services.”
- 14.
R.S.A. 2000, c. S-3, as amended.
- 15.
The writer was a member of the organizing committee with Her Honour Judge Cook-Stanhope, member of the Alberta Provincial Court Bench, and Dr. Margaret Clarke and was the proposal writer for funding from the Law Foundation.
- 16.
Both the writer and Edmonton YCDO colleague Patricia Yuzwenko have presented or attended many conferences including: The 3rd International Conference on Fetal Alcohol Spectrum Disorder, “Integrating Research, Policy and Promising Practice Around the World: A Catalyst for Change” March 11–14, 2008; “Building on our Strengths: Stone by Stone” – International Conference on FASD. May 21–23, 2008 Banff, Alberta; Fourth National Biennial Conference on Adolescents and Adults with Fetal Alcohol Spectrum Disorder, Vancouver, B.C. April 15–17, 2010. Educational outreach in this area continues.
- 17.
The Canadian Bar Association is a professional organization that provides educational and networking opportunities for lawyers.
- 18.
BE IT RESOLVED THAT the Canadian Bar Association:
-
1.
Support the initiative of Federal, Provincial and Territorial Ministers responsible for justice with respect to access to just ice for people w ith FASD and urge all levels of government to allocate additional resources for alternatives to the current practice of criminalizing individuals with FASD;
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2.
Urge the federal, territorial and provincial governments to develop policies designed to assist and enhance the lives of those with FASD and to prevent persistent over-representation of FASD affected individuals in the criminal justice system; and
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3.
Urge the federal government to amend criminal sentencing laws to accommodate the disability of those with FASD.
-
1.
- 19.
(2008) 2 S.C.R. 3.
- 20.
The Consensus Statement on Legal Issues of Fetal Alcohol Spectrum Disorder (FASD) states that: “A more refined approach to diminished responsibility might properly be considered by Parliament under its policies to assist people with disabilities, or by the courts under their powers under s. 8(3) of the Criminal Code to create new common law defences that are not inconsistent with statutes” (Institute of Health Economics 2013).
- 21.
(2008) 2 S.C.R. 739.
- 22.
See also Recommendation 29 in the Consensus Statement on Legal Issues of Fetal Alcohol Spectrum Disorder(FASD): “Judges in the adult system should have similar powers as are available under s. 34 of the Youth Criminal Justice Act to order assessments of accused, especially when there are reasonable grounds to believe that the accused suffers from FASD or any other intellectual impairment or neurodevelopmental disorder” (Institute of Health Economics 2013).
- 23.
S. 19(1) A youth justice court judge, the provincial director, a police officer, a justice of the peace, a prosecutor or a youth worker may convene or cause to be convened a conference for the purpose of making a decision required to be made under this Act. (2) The mandate of a conference may be, among other things, to give advice on appropriate extrajudicial measures, conditions for judicial interim release, sentences, including the review of sentences, and reintegration plans. S. 19(3) and (4) concern the establishment and application of rules.
- 24.
In Calgary this position is filled by the FASD Coordinator previously mentioned.
- 25.
In both Calgary and Edmonton youth workers are co-facilitators.
References
Binnie, I., M. Trussler, and E. Jonsson. 2013. Legal Issues of FASD. Fetal alcohol spectrum disorder. In Proceedings from a consensus development conference. ISBN 978-1-897443-36-1. www.ihe.ca
Lane Goodfellow, C. 2011. The Youth Criminal Defence Office: A model approach to the right to counsel. In Children and the law. Essays in honour of professor Nicholas Bala, ed. S. Anand. Toronto: Irwin Law Inc.
Newman, K. 1991. Juvenile justice in South Australia: In need of tune up or overhaul? In Official responses to problem juveniles: Some international reflections, ed. J. Hackler. Oñati: The Onati International Institute For the Sociology of Law.
Tonry, M., and A.N. Doob, eds. 2004. Youth crime and youth justice: Comparative and cross-national perspectives. In Crime and justice: A review of research. Vol. 31. Chicago: University of Chicago Press.
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Lane Goodfellow, C. (2018). The Alberta Youth Criminal Defence Office - A Model of Advocacy for Youth with FASD. In: Jonsson, E., Clarren, S., Binnie, I. (eds) Ethical and Legal Perspectives in Fetal Alcohol Spectrum Disorders (FASD). International Library of Ethics, Law, and the New Medicine, vol 75. Springer, Cham. https://doi.org/10.1007/978-3-319-71755-5_15
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