Her Majesty the Queen - v. -, 2013 SKPC 165

Zone de Texte: IN THE PROVINCIAL COURT OF SASKATCHEWAN YOUTH JUSTICE COURT Citation: 2013 SKPC 165 Date: October 1, 2013 Information: 326654984 Location: Saskatoon ________________________________________________________________________________ Between: Her Majesty the Queen - and - L.L.B. Appearing: M. Friesen For the Crown P.

Tondevold For the Defence Note: Sections 110 and 111 of the Youth Criminal Justice Act contain prohibitions against publication of a name or other information that would identify someone as either a young person being dealt with under the Act , or as a child or young person who is a victim or a witness in relation to an offence alleged under the Act . ___________________________________________________________________________ _________ SENTENCING DECISION S. P.

WHELAN, J ________________________________________________________________________________ Introduction [ 1 ] This decision concerns the appropriate sentence for L.L.B. Together with two others, including a younger brother, he committed a robbery. He pled guilty to two offences in relation to that incident: robbery and commit an indictable offence while his face

was masked. L.L.B. was just this summer diagnosed with Alcohol-Related Neurodevelopmental Disorder. He was 14 years of age at the time of the offence. His brother and the other person charged received probation. L.L.B. was on remand at the time of submissions due to other pending charges. The Crown sought a sentence of 18 to 24 months custody and supervision, followed by probation, a weapons prohibition and DNA sample. L.L.B. had no history of convictions. After reserving my decision to this date, I determined that the appropriate sentence is 15 months probation.

The appropriate conditions will first be discussed with counsel. Background [ 2 ] The following material was available to the Court: A pre-sentence report, dated May 6, 2013 A victim impact statement The diagnostic report of Dr. Blakley, dated July 12, 2013 The psychological report of Dr. Mary Vandergoot, dated June 12, 2013 [ 3 ] The most pertinent circumstances of the offence and the other offenders follow: About an hour prior to this offence, a student from Aden Bowman High School had an encounter with L.L.B. and the two other accused persons in this matter.

He spotted them in a vehicle which drove slowly past him. They were wearing orange/red bandannas over their faces. He was cautious and waited near a back yard. They left the vehicle and walked toward him, blocking his path. He ran to the principal of his school who called the police and drove the student home. En route, they spotted the same vehicle, following it for several blocks. The occupants had their hoods up and wore bandannas. The plate number was taken and given to the police. The vehicle was registered to the oldest of the three offenders.

The complainant in this offence was walking alone in a pedestrian tunnel when he encountered the three youth. They all wore orange bandannas over their faces. B.C., the owner of the vehicle, put a black leather belt around his neck and punched him in the back. L.L.B. and R.G. hit the complainant. R.G. admitted kicking him in his side before he fell. B.C. threw him to the ground and held him there. Someone took his headphones from his head. While on the ground the other two kicked him in the head several times. R.G. advertized the phone for sale in early December.

The headphones were sold by B.C. the next day and he received $70.00 for them. The money went to gas and cigarettes. B.C. told the police that he met R.G. and L.L.B. at school that morning. They smoked marihuana together. B.C. needed money for gas and someone suggested that they rob someone. At first it was treated like a joke but they then discussed a good area for a robbery and the kind of victim they would seek. They bought bandannas. They dropped the idea for a while, drove around and the idea surfaced again. They began looking for a victim.

Their actual roles were not discussed until they’d spotted a person walking alone and they were out of the car. B.C. then said he’d make the initial contact. He restrained the victim and the other two followed along. None of the youth were under the influence of alcohol or drugs. L.L.B. received a pack of cigarettes from the $70.00 proceeds of the sale of the headphones. When R.G. was sentenced he was said to have kicked the complainant once. He did not have a record. B.C. gave a full confession and exhibited remorse.

He identified L.L.B. and his brother, R.G. [ 4 ] The victim impact statement, dated January 12, 2103, revealed that the complainant, who is now 17 years of age, is nervous to walk alone during the day and night. He suffered a mild concussion and some bruises. He missed a few days of school. He lost his phone and headphones but they were ultimately recovered. He was bothered by persistent headaches until mid-January 2013.

He had fully recovered physically at the date of submissions but still suffers emotionally and was in counselling. [ 5 ] L.L.B. was diagnosed with Alcohol-Related Neurodevelopmental Disorder (ARND) by Dr. Patricia Blakley. See her report

dated July 12, 2103. [ 6 ] The contents of the pre-sentence report are informed by the Level of Service Inventory-SK Youth Edition (LSI-SK). It provides background information and an assessment of the young person’s risks and needs. [ 7 ] L.L.B. returned to his mother’s care after being in foster care for 6 ½ years. He began to run from his foster home placement after his sister committed suicide in January 2012, when he was just 15 years of age. He repeatedly ran to his mother’s home.

His two surviving siblings live with the maternal grandmother. [ 8 ] L.L.B. avoids contact with his biological father; he recalls being hit by him and remains angry with him. He was taken into care due to parental drug and alcohol abuse and lack of supervision in his mother’s home. For all but the last two years while in his mother’s care his father was in the home. Concerns continue with respect to L.L.B.’s mother ability to care for him.

He has only been allowed to remain in her home because of his running from foster care to her home. [ 9 ] L.L.B. has been enrolled in grade 10 which is his age appropriate grade. He is apparently viewed as a creative and bright student. The reports from Dr. Blakley and Dr. Vandergoot will not have been provided to the school. A high school counsellor described L.L.B. as impressionable, saying that he can be manipulated because he seeks a sense of belonging. His school attendance shows multiple “lates” and absences but he has not been taken off roll as a result and he has not been suspended for any reason.

He is usually respectful of other students. His school counsellor in March of 2013 wrote: I have had the privilege of knowing L. for the past year and a half. L. possesses the utmost potential, both academically and personally. Earlier this year, being aware of a plan to goad a special needs student into a fight, L.L.B. informed school staff to prevent it from happening. School staff also reported that L.L.B. has repeatedly placed himself in situations where he will not initiate but will follow others in disrespectful behaviour, and afterwards he will feel badly and look to repair the situation.

The staff reported that L.L.B. has not handled transition or uncertainty well. At such times he can become angry and defiant. [ 10 ] The death of L.L.B.’s sister in January 2012 has impacted L.L.B. greatly. In the weeks following the suicide, he engaged in cutting behaviour. Prior to this he was 4 ½ years in one foster home where he is reported to have done well. That placement broke down in December 2012. Prior to it breaking down and according to his then foster parent, he was involved with negative peers and drugs.

While his maternal grandmother with whom he has lived in the past still lives in Saskatoon, L.L.B. does not regard her as a positive support for him. [ 11 ] L.L.B. expressed little insight as to the impact upon the complainant and he minimized his involvement and recall of the events.

The author expressed some doubt about L.L.B.’s attitude toward supervision by a youth worker in the community given his poor response to scheduled meetings in preparation of the report. [ 12 ] L.L.B. told the author of the report that due to his family’s history of alcohol and drug abuse he monitors his own use and does not believe he has a problem with addictions.

Input from other sources suggests that his recent use has affected several areas of his life. [ 13 ] L.L.B. acknowledged being connected to the Indian Posse street gang. [ 14 ] L.L.B. is Métis and has incurred or suffered a number of Gladue factors, including: family breakdown, family substance abuse and physical and emotional abuse in the home. His father went to a residential school. [ 15 ] In her report of June 12, 2013, Dr. Mary Vandergoot, psychologist, describes L.L.B.’s functioning. She had the benefit of the pre-sentence report. Under the heading, Ability, she wrote:

In

summary, Mr. B.’s intellectual abilities are well developed in areas perceptual (non- verbal) reasoning, working memory, and processing speed, in the context of lower than average verbal reasoning skills. His low average verbal reasoning abilities are only slightly below average, however, in the context of his otherwise well developed perceptual reasoning and working memory skills, his verbal skills are unusually weak – by comparison. It is safe to say that Mr.

B.’s intellectual capacities are variable and this variability may be noticeable to those who know him well and in situations that may demand verbal reasoning skills. . . . . . His math is especially weak for his age and expected grade placement. . . Based on the testing information, it is likely that Mr. B.’s difficulties in math is of learning disability proportion. It is likely that his math disorder is related to his verbal conceptual deficits. [ 16 ] With respect to executive functioning, Dr.

Vandergoot wrote that as measured by her test results; he showed no difficulty in planning, organization, or mental flexibility. [ 17 ] However with respect to expressive and receptive language she wrote: “his expressive vocabulary skills are better developed than his receptive language skills. He may struggle at times with word meanings and concepts at the level expected for his age.” [ 18 ] Dr. Vandergoot concluded: . . . The current assessment revealed several neurodevelopment deficits often seen in youth with prenatal alcohol exposure. The testing also indicates that he has a learning disability in math.

He has a previous diagnosis of ADHD. He also indicates substance use issues, mood instability issues, and anger management issues. He has a history of unstable attachments, mental and physical abuse, and was exposed to substance use in the family. I believe this youth has the capacity to benefit from logical consequences, however, his mental health issues, family dynamics, and developmental issues must be considered in planning. His ability for self-direction and self-regulation are variable. He has a pattern of poor anger control, negativity, and dissociative tendencies.

I believe the loss of his sister in January 2012 triggered a downward spiral of his mental health, led to him numbing out and using substances, and mood problems, suicidal tendencies, and periods of despair. He began to not care about himself or his life. All of these issues contributed and indeed likely triggered some of the attitudes and behaviours that led to his offending and first charges. His current insight into these issues is variable. [ 19 ] The following diagnosis may be found in Dr.

Vandergoot’s report: Axis I Mood disorder NOS (irritability, mood swings) Substance abuse ADHD (previously diagnosed by Dr. Baerg) Math disorder (mild, likely related to verbal conceptual deficits) Sibling problem (traumatic death of sister in January 2012) Parenting problem (needs exceed parenting capacity) Legal problem (new charges) Axis II Poor self regulation of anger and impulse control Dissociative tendencies Axis III Prenatal alcohol exposure Medication for ADHD symptoms Axis IV Few recreational and social activities

Substance using peer group Out of school/no employment Axis V Generalized Assessment of Functioning: (50 to 60/100) moderate to severe problems of adaptive behaviour, health and safety [ 20 ] Dr. Vandergoot made a number of recommendations: - This youth needs mental health interventions. - He needs a transitional school program. - He requires educational interventions to enhance his verbal conceptual skills and his math skills. - Ensure that he has a written copy of his conditions and other expectations. Clearly articulate these requirements and have him demonstrate his understanding.

Review expectations regularly. - He would benefit from substance abuse assessment and treatment services. [ 21 ] She did not necessarily conclude that he suffered from ADHD, despite a previous diagnosis. He has been prescribed concerta in the past. The nurse in the remand facility has spoken to him about arranging for a prescription but he must wait until his doctor returns from holidays.

Position of the Parties [ 22 ] The Crown compared L.L.B. to the other two offenders sentenced to probation; it took the position that as L.L.B. presents as a great risk to the community, his needs are greater and he does not have the same supports at home so he requires a lengthy period of custody; 18 to 24 months custody and supervision.

She further contrasted L.L.B.’s personal circumstances with that of B.C., who was the leader in the offence, arguing that he presented a lower risk and had made positive changes. [ 23 ] The Crown maintained that the key issue is whether a custodial sentence is a reasonable alternative for L.L.B.

She then referred to the pre-sentence report to underscore her concerns: - He has the highest risk level – level 4. - While he has no criminal history he has not been fully compliant, referring to his having run from foster placement. - She questioned the level of supervision that his mother is able to provide and questioned whether the risk he presents can be adequately addressed in the community. - He has a pro-criminal attitude. - He struggles with anger. - Previous gang association.

The Crown’s argument for custody was based on L.L.B.’s apparent need for a greater degree of structure and support than has been provided to this point. The Crown was in error in stating that with a level 4 risk assessment that he is at the highest risk level as there are five levels. The risk assessment does not measure the risk to re-offend violently. [ 24 ] The Crown argued that the following were aggravating factors: impact on the victim, three attacking one, random street violence, faces masked, belt used and victim on the ground.

She acknowledged the mitigating factors: he wanted to enter a guilty plea at a much earlier opportunity, he has no prior record and he has significant Gladue factors. [ 25 ] L.L.B.’s counsel strenuously argued the principle of parity. She quite fairly maintained that the aggravating factors also applied to his co-accused for whom the Crown sought probation. She reminded the Court that B.C. was the leader in the offence, that he was driving and that the gas money was for his car. She maintained that L.L.B.’s upbringing should not be used against him, noting that he suffers some extreme Gladue factors.

She said that L.L.B. identifies with the victim and the impact of the offence as he too has been a

victim of street violence. He recognizes that he has made some poor choices including the people that he’s chosen to “hang around with”. He does not wish to continue on in a gang. He has heard of STR8 UP and what it takes to be accepted into that anti-gang program. She argued that it is inappropriate to impose a harsher penalty on L.L.B. because of his risk factors. [ 26 ] Perhaps in keeping with his expression of remorse, L.L.B. felt that he should receive a brief custodial sentence. His counsel was concerned that this was a reflection of his feeling that he doesn’t matter to anybody.

He was unable to offer a plan for his future because he was on remand for another serious offence and is dependent upon the adults around him. Sentencing under the YCJA [ 27 ] The Crown’s submission for a lengthy period of custody and supervision offends several governing principles under the Act , including parity, proportionality and consideration of L.L.B.’s personal circumstances as a Métis young person who has been diagnosed with ARND. [ 28 ] A discussion of sentencing begins with

section 3 of the YCJA . Subsection (1)(

a) speaks to holding young persons accountable through measures that are proportionate to the seriousness of the offence and the degree of responsibility of the young person. L.L.B.’s age and role in the offence is important in this regard as he was 14 at the time of the offence and one of three offenders. He was, in this offence, as he has been described generally, a follower. Rehabilitation and reintegration was emphasized for the other offenders, notably B.C. L.L.B.’s underlying circumstances are unique to him and include Gladue factors and subsequent to this offence a diagnosis of ARND.

It has been reported that he is suffering emotionally and that much of his poor behaviour outside of this offence is attributable to the grief and destabilizing effect of his sister’s suicide. [ 29 ] Subsection (1)(

b) speaks to the diminished moral blameworthiness or culpability of the young person and calls for fair and proportionate accountability. See R. v. D.B ., 2008 SCC 25 . Acknowledging his age and role as compared to that of the oldest youth who owned the car and was the leader, is in keeping with that principle. [ 30 ] Subsection (1)(

c) provides that having regard to fair and proportionate accountability, the measures taken should reinforce respect for societal values. Fairness is also a societal value. A young person such as L.L.B. who has endured Gladue factors throughout his young life would not be blamed for reacting to the unfairness of giving him a lengthy period of custody while B.C. received probation.

It is important that L.L.B., who is at a very impressionable age, does not lose respect for the justice system and the way in which it applies the principles of justice. [ 31 ] L.L.B., despite being in the foster care system has not previously been assessed for FASD. The knowledge of his mother’s problems with alcohol and drugs was available but it was not until he began demonstrating disabilities that we associate with FASD, that he was identified to have a lifelong condition for which he is not responsible.

This Court under the YCJA is required to impose measures that are meaningful having regard to his level of development and special needs. This principle, having regard to the circumstances of this offence and this offender does not call for a greater degree of restraint, such as the Crown seeks. In these circumstances it informs those that are working with L.L.B. and should make a difference in the methods employed to encourage rehabilitation and reintegration, but in the community.

Finally, the youth justice system is called upon to respond to the needs of aboriginal young persons and those with special requirements. Both aspects apply to L.L.B. He should, having regard to the ARND diagnosis and the Gladue factors affecting him, including his family’s breakdown and sister’s suicide, receive greater understanding, not harsher treatment. [ 32 ] Sections 38 and 39 address the principles applicable to sentencing, the factors to be considered and the availability and advisability of a custodial sentence.

The sentence is to be determined in keeping with the principles in s. 3 and among other things; it must be similar to sentences imposed in the region on similar young persons found guilty of the same offence in similar circumstances. This is known as parity. Further, all available sanctions other than custody that are reasonable in the circumstances should be considered, with particular attention to the circumstances of aboriginal young persons. This brings to mind the fact that the young person is currently on remand.

The Court was advised that his counsel was awaiting the outcome of this proceeding before seeking judicial interim release. His counsel explained that it is difficult in such circumstances for him to offer a plan. He doesn’t know if he will be released and he is dependent upon the adults around him. L.L.B. remains innocent of his pending charges and his status on remand should not detract from the appropriate sentence to be imposed. [ 33 ] In ss. 38(2)(

d) and (e), with due regard to the principle of proportionality, the Court is asked to consider the least restrictive sentence capable of achieving the purpose of sentencing. Pursuant to s. 39(2), even should a Court find that a custodial sentence is available; it must not impose custody without considering the alternatives that are raised at the sentencing hearing and it must then find that there isn’t an alternative in accord with the purpose and principles of sentencing. Given the treatment of the other two young persons, sentenced for this same offence, it would be unreasonable to impose custody.

Further, even had he acted alone, having regard to his circumstances consideration would have to be given to probation.

[34] The Crown has emphasized factors, including running from his foster placements to his mother’s home, which do notconstitute criminal behaviour and are not pertinent to the commission of this offence. It must be underscored that this young person hasno previous findings of guilt and in particular has not demonstrated a failure to comply with previous non-custodial sentences. TheCrown is in error when it suggested that custody should be considered given the concern about the level of supervision available in hismother’s home.

L.L.B. is in the care of the Ministry of Social Services of this province and it has a great deal more resources at itsdisposal than the vast majority of parents. L.L.B. stands on a precipice and the decisions made today about his future, by him and thosehe turns to for support and influence, will have a tremendous impact on his successes and failures. [35] The Court must consider the factors set out in s. 38(3) of the Act, including the degree of participation of L.L.B. and the harmdone to the complainant. The Court was asked not to take into account the time in custody.

The offence is serious and the impact uponthe complainant was serious. There is nothing particularly aggravating or mitigating about the circumstances. [36] Subject to the principle of proportionality the sentence must denounce and deter. L.L.B. feels that he should receive acustodial sentence.

It may be that this is due to his being on remand; however, given that he chose to say nothing to the Court and that hehung his head in an attitude of self-shaming, perhaps despair, throughout the proceedings; I found, that both denunciation and individualdeterrence had been achieved. [37] Section 39(5) specifically prohibits imposing custody in substitution for appropriate child protection, mental health or othersocial measures. L.L.B. is in care of the Ministry of Social Services which indicates to the Court that he is in need of protection. Dr.Vandergoot and Dr. Blakley addressed his mental health concerns.

The place to address such concerns at this juncture, with this offenceand surrounding circumstances remains in the social services system. The breakdown of his placements can be attributed to his mentalhealth concerns which began to become a problem for him with the death of his sister. The ARND diagnosis since the commission of thisoffence should be a “game changer” insofar as understanding the appropriate measures needed to assist L.L.B.

Risk and Sentencing [38] The Crown has repeatedly referred to the risk that this young person presents, noting the outcome of the LSI-SK riskassessment contained in the pre-sentence report. In doing so, important sentencing principles under the YCJA have been overlooked andthere has been a misapplication of the information that a risk assessment provides. It is a predictive instrument and this instrument doesnot measure the risk for future violence. It provides information about the risks as well as the needs which might be addressed to reducethe risk to re-offend.

I noted that the pre-sentence report filed in this case writes about the use to be made of the risk assessment: . . . Any reference to the assessed likelihood to re-offend is not intended to constitute a recommendation as to the type ofsentence (e.g. custody vs. probation) or sentence length. The report returns to the LSI-SK risk assessment at page 14 of the pre-sentence report in making recommendations for a plan of riskmanagement and reduction. This is not the same as recommendations for sentence.

The risk level does determine the “intended” level ofsupervision. [39] Some of the very factors which we describe as Gladue factors; contribute to a heightened level of risk according to the LSI-SK instrument. In R. v. J.K.M., 2013 SKPC 154, I took from the pre-sentence report available to the Court the areas of risk that arecanvassed, writing at paragraph 15: . . . the Level of Service Inventory-SK Youth Ed (LSI-SK).

The report examined eight risk/need factors: criminal history, education/employment, family circumstances and parenting, leisure/ recreation, companions, pro-criminalattitude/orientation, substance abuse and antisocial pattern. I refer specifically to: family circumstances and parenting and substance abuse. [40] R. v. Gladue, (SCC), [1999] 1 S.C.R. 688 and R. v. Ipeelee, 2012 SCC 13 , [2012] S.C.J. No. 13,both decisions of the Supreme Court of Canada, discuss the concern about the over-incarceration of aboriginal offenders and the factorsand alternatives that may be considered.

Significantly, the Supreme Court in the years between the two decisions did not find that things

had improved. In R. v. Gladue , supra , the Court wrote, beginning at paragraph 66: 66 How are sentencing judg e s t o play their re m edial role? The words of s. 718.2 (

e) instruct the sentencing judge to pay particular attention to the circu m stances of aboriginal offenders, with the i m plication that those circu m stances are significantly differ e nt f r om those of non-aboriginal offenders. The background considerations regarding the distinct situation of aborigi n al peoples in Canada enco m pass a wide range of unique circu m stances, including, m ost particularly: (

A) The unique syste m ic or background f actors w hich m ay have played a

part in bringing the particular aboriginal offender before the courts; and (

B) The types of sentencing procedures and sanctions which m ay be appropriate in the circu m stances for the offender because of his or her particular aboriginal heritage or connection. (

a) Systemic and Background Factors 67 The background factors which figure pro m inently in the causation of cri m e by aboriginal o ff enders are by now well known. Years of dislocation and econo m ic develop m ent have translated, for m any aborigin a l peoples, into low inco m es, high une m ploy m ent, lack of opportunities a nd op t i ons, lack or irrelevance of education, substan c e a bu se , loneliness, and co mm unity frag m entation. These and other factors contribute to a higher incidence of cri m e and incarceration.

A disturbing account of these factors is set out by P r ofessor Tim Quigley, “So m e Issues in Sentencing of Aboriginal Offenders”, in Continuing Poundmaker and Riel’s Quest (1994), at pp. 269-300. Quigley ably describes the proc e ss whereby these various factors produce an overincarceration of aboriginal offenders, noting (at pp. 275-76) that “[t]he une m ployed, transients, the poorly educated are all b e tt e r candidates for i m prison m ent.

W hen the social, political and econo m ic aspects of our society place Aboriginal people disproportionately within the ranks of the l a tter, our society literally sentences m ore of them to jail.” 68 It is true that syste m ic and background factors explain in part the incidence of cri m e and recidivism for non-aboriginal offenders as well.

How e v e r , it m ust be recognized that the circu m stances of abori g inal offenders diff e r f r om those of the m ajority because m any aboriginal people are v i cti m s of syste m ic and direct discri m i nation, m any suffer the legacy of dis l ocation , an d m an y ar e substantiall y a ff ected by poor social and econo m ic conditions.

Moreover, as has been e m phasized repeatedly in studies and co mm i ssion reports, aboriginal offenders are, as a result of these unique syste m ic and background factors, m ore adversely affe c t ed by incarceration and less likely to be “rehabilitated” thereby, because the intern m ent m ilieu is often culturally inappropriate and regrettably discri m i nation t o wards them is so o f ten ra m pant in penal institutions. [ 41 ] In R. v. Ipeelee , supra , the Court wrote of the failure to address over-representation in the criminal justice system: 62 This cautious optimism has not been borne out.

In fact, statistics indicate that the overrepresentation and alienation of Aboriginal peoples in the criminal justice system has only worsened. In the immediate aftermath of Bill C-41, from 1996 to 2001, Aboriginal admissions to custody increased by 3 percent while non-Aboriginal admissions declined by 22 percent (J. V. Roberts and R. Melchers, "The Incarceration of Aboriginal Offenders: Trends from 1978 to 2001" (2003), 45 Can. J. Crim. & Crim. Just. 211, at p. 226). From 2001 to 2006, there was an overall decline in prison admissions of 9 percent.

During that same time period, Aboriginal admissions to custody increased by 4 percent (J. Rudin, "Addressing Aboriginal Overrepresentation Post- Gladue : A Realistic Assessment of How Social Change Occurs" (2008-2009), 54 Crim. L.Q. 447, at p. 452). As a result, the overrepresentation of Aboriginal people in the criminal justice system is worse than ever. Whereas Aboriginal persons made up 12 percent of all federal inmates in 1999 when Gladue was decided, they accounted for 17 percent of federal admissions in 2005 (J. Rudin, "Aboriginal Over-representation and R. v.

Gladue : Where We Were, Where We Are and Where We Might Be Going", in J. Cameron and J. Stribopoulos, eds., The Charter and Criminal Justice: Twenty-Five Years Later (2008), 687, at p. 701). As Professor Rudin asks: "If Aboriginal overrepresentation was a crisis in 1999, what term can be applied to the situation today?" ("Addressing Aboriginal Overrepresentation Post- Gladue ", at p. 452). [ 42 ] While both decisions are concerned with adult offenders, it may be said that the concerns begin in the justice system created for young persons under the YCJA .

The Act specifically addresses Gladue considerations in sections 3 and 38, discussed above. As well

section 50 incorporates the pertinent provisions of the Criminal Code with respect to Gladue factors and alternatives: 50.

(1) Subject to

section 74 (application of Criminal Code to adult sentences),

Part XXIII (sentencing) of the Criminal

Code does not apply in respect of proceedings under this Act except for paragraph 718.2(e) (sentencing principle for aboriginal offenders), . . . that Act, which provisions apply with any modifications that the circumstances require.

Section 718.2 (

e) of the Criminal Code provides: 718.2 A court that imposes a sentence shall also take into consideration the following principles: . . . (

e) all available sanctions other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders. The time, indeed the place to take steps to avoid over-incarceration is while an individual is a young person under the YCJA . FASD and Sentencing [ 43 ] L.L.B. has been diagnosed with ARND. As Dr. Blakley wrote in her report of July 12, 2013: It is important to recognize that the degree of disability seen in ARND can be as significant as that seen in full FAS. [ 44 ] In a recent decision R. v.

Charlie , [2012] 2 C.N.L.R. 184 , Lilles J. wrote: 11 FASD is an acronym for Fetal Alcohol Spectrum Disorder. Alcohol abuse, including maternal alcohol consumption, was a significant social problem experienced by the Indian residential school students who returned to their village of Ross River. A severe form of mental retardation, now referred to as FASD, was a direct result of this maternal alcohol consumption. Franklin Charlie is only one of many children of that generation who now suffer from this disability. 12 In an earlier decision, R. v.

Harper , 2009 YKTC 18 , this Court summarized information reported in the National Conference: Access to Justice for Individuals with FASD held in Whitehorse, Yukon, in September, 2008. The following information is taken from that report and is worthwhile highlighting again today in order to understand what FASD is. 1. FASD is one of the leading causes of mental retardation, developmental and cognitive disabilities in Canada. It is entirely preventable. Approximately 0.9/100 people from the general population have FASD. Rates of FASD are higher in areas where alcohol abuse and poverty are widespread. 2.

The person with FASD is entirely blameless - an innocent victim of maternal alcohol use during pregnancy. FASD can affect every part of the developing brain. This can result in problems with learning, memory, storage and retrieval of information, adaptive behaviour, attention, impulse control, speech and language abilities, motor development, reasoning, and problem solving. Approximately half of individuals with FASD meet standard criteria for mental retardation (IQ less than 70). The brain abnormalities associated with FASD are different for every person with this disability. 3.

Improving access to justice for individuals with FASD requires a better understanding of this disability and a concerted effort to keep FASD individuals out of the justice system. The justice system should not be used as a substitute for social services and supports for these most vulnerable citizens. 4. FASD-affected individuals can appear in the justice system as victims, witnesses and offenders. Most are involved in the child welfare system at an early age and for prolonged periods. 5. FASD-affected individuals do not do well in school or in society generally.

By the time they reach adulthood they have often exhausted and alienated their family members. Out on their own, a multitude of factors combine to result in social isolation, poor job performance, poverty, mental and physical health problems, homelessness, victimization and involvement in the criminal justice system. 6. Given the stringent criteria associated with defences of "Not Criminally Responsible due to Mental Disorder" and "Unfit to Stand Trial" in the Criminal Code , most individuals with FASD do not meet the thresholds.

Instead, they are processed as fully responsible individuals with handicaps that are sometimes viewed by sentencing judges as mitigating, on other occasions as aggravating.

[ 45 ] I have written in the past about the significance of FASD to sentencing decisions. See R. v. W.A.L.D. , 2004 SKPC 40 , at paragraph 40 wherein I discussed the syndrome and specifically, the secondary factors which we so often see in the criminal justice system: 40 Dr. Ann Streissguth and her colleagues conducted research on Secondary Disabilities, experienced by persons diagnosed with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effect (FAE). It is important to share some of the conclusions from that research obtained from: Streissguth, A.P., Barr, H.M., Kogan, J. & Bookstein, F.

L., "Understanding the Occurrence of Secondary Disabilities in Clients with Fetal Alcohol Syndrome (FAS) and Fetal Alcohol Effects (FAE)," Final Report to the Centers for Disease Control and Prevention (CDC), August, 1996, Seattle: University of Washington, Fetal Alcohol & Drug Unit, Tech. Rep. No. 96-06, (1996). FAS Community Resource Center, http://come- over.to/FASCRC/ 41 Primary Disabilities refer to the brain damage caused by ingestion of alcohol during pregnancy that results in the permanent impaired mental function of persons with Fetal Alcohol Spectrum Disorder (FASD).

The following information concerning Secondary Disabilities is taken from the Report, above: Secondary Disabilities are those not present at birth but occur as a result of the primary disabilities. Secondary disabilities can presumably be prevented or lessened by better understanding and appropriate interventions. Six main categories of disabilities were defined: * Mental Health Problems, the most prevalent secondary disability, experienced by 94% of the full sample. During childhood, 60% of children with FASD have ADHD. During adulthood, most adults with FASD have clinical depression.

The study revealed that 23% of the adults had attempted suicide, and 43% had threatened to commit suicide. * Disrupted School Experience (suspension or expulsion or drop out), was experienced by 43% of children of school age. By the time students with FAE reach adulthood, the rate of disrupted school experience peaks at 70%.

Common school problems include: not paying attention; incomplete homework; can't get along with peers; disruptive in class; disobeying school rules; talking back to the teacher; fighting; and truancy. * Trouble with the Law (involvement with police, charged or convicted of crime), was experienced by 42% of those in the study, and by about 60% of those age 12 and over. The most common first criminal behavior reported was shoplifting.

The most common crimes committed (by almost half of individuals with FASD age 12-20) were crimes against persons (theft, burglary, assault, murder, domestic violence, child molestation, running away), followed by property damage; possession/selling; sexual assault; and vehicular crimes. * Confinement (inpatient treatment for mental health, alcohol/drug problems, or incarceration for crime), experienced by 60% of those age 12 and over.

Over 40% of adults with FASD had been incarcerated; about 30% of adults with FASD were confined to a mental institution; and about 20% had been confined for substance abuse treatment. * Inappropriate Sexual Behavior was reported in 45% of those age 12 and over, and 65% of adult males with FAE. This includes only sexual behaviors that had been repeatedly problematic or for which the individual had been incarcerated or treated.

It is thought that the actual incidence of inappropriate sexual behavior is much higher, and not always reported by the individual or the family due to embarrassment or fear of being reported to authorities. Problem sexual behaviors most common with FASD include: sexual advances; sexual touching; promiscuity; exposure; compulsions; voyeurism; masturbation in public; incest; sex with animals; and obscene phone calls. * Alcohol/Drug Problems were experienced by 30% of individuals age 12 and over. Of the adults with FAE, 53% of males and 70% of females experienced substance abuse problems.

This is more than 5 times that of the general population.

To determine levels of independence in adulthood, two additional categories were identified for individuals 21 years of age and older (median age 26): * Dependent Living was the situation for about 80% of adults with FASD. * Problems with Employment were indicated in 80% of adults with FASD. Only 8% of the individuals in the study had no problem with independent living or employment. * Problems With Parenting: Of the 100 females of childbearing age, 30 had given birth; 40% drank during pregnancy, more than half no longer had the child in their care.

Of their children, 30% have been diagnosed with or suspected of having FASD. Risk Factors: The greatest risk factors associated with secondary disabilities in FAS/FAE are shown by the studies to be: * IQ over 70 (those with lower IQ's are likely to get more services and intervention) This means that individuals with FAE are at greater risk than those with FAS. * Exposure to violence (sexual and/or physical abuse), which occurs at rate of 72% of individuals with FASD. Those exposed to violence are four times as likely to exhibit inappropriate sexual behavior.

Protective Factors: * Early diagnosis is a universal protective indicator for all secondary disabilities. Only 11% of individuals with FASD were diagnosed by age 6. Every effort must be made to attain early diagnoses for children with FAS and FAE. * Eligibility for services from DD division of state is another strong protective factor.

These services are needed by most individuals with FASD, yet most do not qualify. * Living in stable home with nurturing parents and minimum of changes in household. * Protection from violence, from witnessing or being victimized by violence. . . . [ 46 ] L.L.B. is fortunate in many ways as the testing conducted by Dr. Vandergoot and his accomplishments in school indicate. L.L.B., while possessing some limiting features, notably moderate to severe problems of adaptive behaviour, health and safety, nonetheless has the capacity, with informed and appropriate supervision, to succeed in the community.

Conclusion [ 47 ] Probation for 15 months is the appropriate sentence. After further discussion with counsel the appropriate conditions may be addressed.

__________________________ S.P. Whelan, J