Wednesday, May 14, 2014

JFCY supports Children and Youth in Care Day


STATEMENT
  
Toronto, Ontario, 14 May 2014 – Justice for Children and Youth (JFCY) is pleased to recognize Ontario’s first annual Children and Youth in Care Day, and affirm our dedication to assisting youth in and leaving care. Our clinic regularly helps young people navigate the often complex web of legal and non-legal issues that come with being in care or leaving care.

Children and youth in and leaving care face a number of challenges in education, social life, and housing arrangements. It is our collective responsibility to provide excellent care and seamless transition plans for youth in and leaving care. The Youth Leaving Care Hearings held at Queen’s Park in 2011 highlighted the need for change. Positive changes undertaken by the Ontario government since that time include: 

  • Better accessibility to services if a young person leaves care and would like to re-enter;
  • Extended services to youth transitioning out of care who are still in school; and
  • Further supports to youth transitioning out of care through the Youth-In-Transition worker positions created by the Ministry of Children and Youth Services.
More change is needed. JFCY continues to advocate for equality to all youth in our care system which stands in the position of the young person’s legal guardian. A gap in service still exists for 16 and 17 year olds accessing care for the first time. Youth needing care after they turn 16 are left with few choices to sustain their safety and security, often leaving them with no option but the shelter system or the streets.

This first annual Child and Youth in Care Day, let us all recognize the bravery and resilience of children and youth in care, and affirm our support to them. We look forward to working with young persons, community members, and the government to continue to strive to meet the needs of young people in Ontario.  

Tuesday, April 29, 2014

R v Manitowabi: The Significance - and Limits - of a Diagnosis of FASD for Young Persons Involved in the Criminal Justice System



Guest post by Brock Jones, Crown Counsel [1]

The Ontario Court of Appeal released a ground-breaking decision today on the significance of a diagnosis of fetal alcohol spectrum disorders (“FASD”) for young persons in criminal. While the Court clearly acknowledged the nature of FASD and its implications for criminal culpability, it also put significant limits on the use of such a diagnosis unless specifically applied to the facts of a particular case. 

Dakota Manitowabi was 16 years of age at the time of his offence. He attended a party where he was not invited and was asked to leave by the homeowner. He did leave, but returned with a large knife. When confronted about his presence again, he stabbed the homeowner once in his torso. The victim died approximately 15 minutes later.

At trial, Manitowabi did not dispute he committed the stabbing but argued he lacked the intent to kill and should not be found guilty of murder. The defence failed and he was found guilty of second degree murder. The judge imposed an adult sentence of life without parole for seven years (the maximum sentence possible) and also lifted the ban on the publication of his identity.[2]

What is FASD?
FASD refers to a wide array of behavioural and intellectual difficulties associated with damage to the human brain caused by exposure to alcohol during pregnancy. Current research suggests the prevalence of FASD in the general population of between 2-5%[3], and the rate in prisons (both juvenile and adult) could be at least 10 -15 times that number.[4]

In Manitowabi, the Court of Appeal noted the following about FASD at paragraph 40:
FASD is a permanent neurodevelopmental disorder. It is an umbrella term describing a range of effects that can occur in an individual whose mother drank alcohol during pregnancy. Those effects can include physical, mental, behavioural and learning disability. Fetal Alcohol Syndrome (“FAS”) describes the most severe manifestation of the disorder…[5]

The Court continued to note that FASD “impacts on executive functioning”, which in turn refers to “specific cognitive skills”, including the ability to grasp “cause and effect.”[6] However, it cautioned that the expert testimony in the case before it warned that executive functioning is an “ambiguous” term referable to a “wide variety of cognitive abilities”, whose deficits are “inherently difficult to measure.”[7]

Does a Diagnosis of FASD matter?
At trial, it was unclear if Manitowabi suffered from FASD and thus defence counsel did not vigorously pursue its significance. By the time of the appeal, several years later, the Court of Appeal had expert evidence before it which established as a probability the appellant suffered from some form of FASD.

The Court accepted that FASD and its effect on executive functioning could be relevant to both a young person’s guilt at trial and his or her moral culpability for the purposes of sentencing. However, it also noted that the “impact of FASD on executive functioning will vary from individual to individual and will vary for the same person from situation to situation.”[8] A blanket, abstract diagnosis of FASD will thus be of limited value.

Rather, clinical tests conducted by an expert witness that will assist with understanding the particular impact of FASD on the young person before the court were recommended. Additionally, the Court of Appeal emphasized that the significance of an FASD diagnosis must be tailored to the specific crime before the youth justice court.

Thus, in Manitowabi’s appeal, the expert evidence presented did not assist with the specific circumstances of the case – that is, whether or not his probable affliction of FASD impacted on his ability to foresee the consequences of stabbing the victim.[9] And while such a diagnosis could “attenuate the moral blameworthiness” of a young offender, since it was not established FASD was relevant to the specific crime in question (i.e. murder), it “could not shed any new light on the appellant’s moral blameworthiness.”[10] As a result, both the conviction and adult sentence were upheld.

Implications for Future Cases
Following Manitowabi, there can be no doubt a diagnosis of FASD for a young person is highly relevant in youth criminal proceedings. But counsel must be cautioned against relying on a mere abstract diagnosis and arguing their client is therefore entitled to an acquittal at trial or mitigation at sentencing. Rather, an expert opinion, specifically tailored to the exact criminal acts in question, must be proffered.

Obtaining an expert opinion that a young person suffers from FASD is already a challenging hurdle for the defence to overcome, as it typically requires the young person’s mother to admit to drinking during pregnancy. Once obtained, its value to the defence is often simply presumed as it establishes a highly mitigating factor. Following Manitowabi, that would be a serious mistake.
While it is incumbent upon all participants in the youth criminal justice system to acknowledge the prevalence of mental health concerns among young persons appearing in the criminal courts, the highly individualized nature of each particular case must always be appreciated. 

Resources Available Online
Thankfully, a wide variety of resources exist online to help interested parties learn more about FASD.
FASD Ontario Network of Expertise (FASD ONE) is a group that works together to address issues related to Fetal Alcohol Spectrum Disorder (FASD) in the province of Ontario. Membership includes experts and specialists in research, health promotion, diagnosis, justice services, community and policy development, and service delivery as well as family members who have intimate knowledge of the practical needs of individuals with this disability. Their website has more information including contact numbers for local diagnostic clinics: http://www.fasdontario.ca/cms/resources/diagnostic-clinics

An excellent guidebook for educational practitioners can be ordered online from http://www.motherisk.org for a small fee: http://www.motherisk.org/documents/understandingFASD_OrderForm.pdf



[1] Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. Any views expressed herein are mine alone and do not represent those of the Crown Law Office nor the Ministry of the Attorney General.

[2] The Youth Criminal Justice Act prohibits the publication of information that would identify a young people as having been dealt with under the Act (s.110 and related sections). 


[3] May, P.A., Gossage, J.P., Kalberg, W.O., Robinson, L.K., Bucley, D., Manning, M. 2009. FASD from various research methods with an emphasis on recent in-school studies. Developmental Disabilities Research Reviews 15: 176-192.


[4] http://www.johnhowardbc.ca/images/jhsbc-factsheet-fasd.pdf


[5] R v Manitowabi 2014 ONCA 301 at para 40


[6] Ibid. at para 41


[7] Ibid. at para 42


[8] Ibid. at para 43


[9] Ibid. at para 58.

[10] Ibid. at paras. 64-65

Wednesday, April 16, 2014

Have You Been Carded?


You’re walking home after school and from the corner of your eye you notice a police cruiser approaching you. You think nothing of it, as you haven’t committed a crime. 

Not too long after, you hear a “hey you” from the direction of the cruiser, and find the officer inside motioning at you to come over. You approach and the officer asks you, “where were you going?” and “do you have anything illegal on you.” and then continues with, “you matched the description of a suspect in nearby house break-ins” or “we’re looking for someonen who matches your description.” Finally, they end by asking for you for identification or to give them personal information such as your name, age and address. 

The collection of this information being collected on a Toronto Police form and entered into a database is often referred to as “carding”. Carding is an unfortunate reality for many youths, and disproportionately so, for young males who are ethnic minorities. In law, when an individual is approached by an officer and asked for personal information, the person can decline to answer as his or her right to remain silent are protected under the Canadian Charter of Rights and Freedoms. However, failing to answer or not cooperating can lead to greater problems. Each person must decide what to do in this situation.
http://csg.lao.on.ca/

Why do officers randomly collect personal information from the public?

The police justify carding as a method to reduce crime in high-risk communities. Police officers are asked to document their daily practice and to be as detailed as possible, this includes taking notes of incidents as they happen and documenting their interactions with the members of the public. Large quantifies of carding forms are completed by the police in the identified communities. Additionally, filling out these carding forms is regarded by the police as good police work because the information collected is entered into large databases that the police use to search for connections, persons of interest, and bystanders of previous crimes. 

Problems with "carding"

The police have been under heavy scrutiny in Toronto (as well as in other large cities such as New York USA and London UK) because research shows that the police stop racial minorities more frequently. A Toronto Star article reported that the number of black youths carded in Toronto over the last five years is equivalent to the number of black youths in the city itself. 

The finding that minorities, such as African-Canadians, are stopped for carding at a higher rate than other groups is problematic. The Charter of Rights and Freedoms and the Ontario Human Rights Code both protect individuals against discriminatory treatment. As representatives of the state, police officers should be held to an especially high standard. In targeting ethnic and racial minorities over other groups, the Toronto police has potentially violated the fundamental rights of many innocent citizens and there is a Stop Police Carding Campaign: http://stoppolicecarding.com/

Recommendations for improvement

In response to the over-use of carding by the Toronto police, the the Toronto Chief of Police Bill Blair is required to release statistics of individuals being carded every three months, and to directly address discriminatory practices by law enforcement authorities. The police may soon be required to give out "receipts" or copies of the completed information form that also states the purpose each stop. Other suggestions that have been made to improve police practices includes the development of stricter criteria for carding, strengthening diversity training for law enforcement teams, and limiting the amount of time for retaining personal information.


Reference: http://www.thestar.com/news/crime/2013/11/18/toronto_police_urged_to_stop_carding.html

Thursday, March 20, 2014

Youth Medical Rights

                                      

http://legalrightsforyouth.ca/sites/default/files/pictures/youth/med1.jpg

A person can encounter many healthcare problems over the course of his or her life. From broken arms, mental health needs, to unwanted pregnancies, there are many scenarios in which youth require healthcare services. While many believe that youth health issues are up to their parents and/or legal guardians, young people have many rights that they should be aware of.

Healthcare Decisions

In general, minors (under the age of 18 in Ontario) have the legal right to make their own healthcare decisions. These decisions can include dental care, surgery, substance addiction treatment, etc. The law presumes that minors are capable of understanding the treatment, the treatment process, as well as the risks and benefits associated with the treatment. It is up to the healthcare practitioner (i.e. doctors, nurses, therapists, etc.) to make the decision regarding the minor's capabilities. If the doctor finds that the minor is not capable of understanding the proposed treatment, a substitute decision-maker must act on the minor's behalf; and the minor has a legal right to challenge the finding of incapacity.

Under the Health Care Consent Act, all medical treatments must not be administered until consent has been acquired:

No treatment without consent
10.  (1)  A health practitioner who proposes a treatment for a person shall not administer the treatment, and shall take reasonable steps to ensure that it is not administered, unless,
(a) he or she is of the opinion that the person is capable with respect to the treatment, and the person has given consent; or
(b) he or she is of the opinion that the person is incapable with respect to the treatment, and the person’s substitute decision-maker has given consent on the person’s behalf in accordance with this Act. 1996, c. 2, Sched. A, s. 10 (1).

Confidentiality

Under the Personal Health Information Protection Act, minors over the age of 16 can act on their own behalf over the collection, use, or disclosure of their medical information, provided that they are capable of understanding the information.

Persons who may consent
23.  (1)  If this Act or any other Act refers to a consent required of an individual to a collection, use or disclosure by a health information custodian of personal health information about the individual, a person described in one of the following paragraphs may give, withhold or withdraw the consent:
1. If the individual is capable of consenting to the collection, use or disclosure of the information,
i. the individual, or

Children under the age of 16 have less freedom over their decisions, but still have the right to make decisions over certain issues.


23. (2) If the individual is a child who is less than 16 years of age, a parent of the child or a children’s aid society or other person who is lawfully entitled to give or refuse consent in the place of the parent unless the information relates to,
i. treatment within the meaning of the Health Care Consent Act, 1996, about which the child has made a decision on his or her own in accordance with that Act, or
ii. counselling in which the child has participated on his or her own under the Child and Family Services Act.

Conflict if child capable
23. (3)  If the individual is a child who is less than 16 years of age and who is capable of consenting to the collection, use or disclosure of the information and if there is a person who is entitled to act as the substitute decision-maker of the child under paragraph 2 of subsection (1), a decision of the child to give, withhold or withdraw the consent or to provide the information prevails over a conflicting decision of that person.

There are exceptions to this principle, however. For example, disclosure of health information may be justifiable to reduce risks of serious harm:

40.  (1)  A health information custodian may disclose personal health information about an individual if the custodian believes on reasonable grounds that the disclosure is necessary for the purpose of eliminating or reducing a significant risk of serious bodily harm to a person or group of persons. 2004, c. 3, Sched. A, s. 40 (1).

Thursday, March 6, 2014

R v Todorovic: Does The Age Of A Child Matter When Determining If She Was “Detained”?

Guest post by Brock Jones, Crown Counsel

On February 27, 2014, the Ontario Court of Appeal released its decision in R v Todorovic 2014 ONCA 153. The central issue on the conviction appeal was whether Todorovic`s statements to the police on the night of her arrest were properly admissible pursuant to the requirements of section 146 of the Youth Criminal Justice Act (S.C. 2002, c. 1)

The Court of Appeal ruled the statements were properly admitted by the trial judge and upheld the appellant`s conviction for first degree murder. Key to this outcome was the Court of Appeal`s deference to the trial judge`s finding that Todorovic was not “detained” when she was first questioned by the police, thus not triggering any duty on the police to inform her of her rights under the YCJA (and the Charter of Rights and Freedoms). After a lengthy interrogation, Todorovic ultimately confessed that she told her boyfriend she wanted the victim dead due to jealously over his past relationship with her.

Curiously absent from the decision however is any significant discussion of what role, if any, Todorovic’s status as a young person should have played in the trial court’s assessment of whether or not she was “detained” for the purposes of the YCJA.

A Brief Review of the Facts

The facts of this case have received widespread attention in the media and only some of them need be reviewed here. On January 1, 2008, David Bagshaw, then 17, stabbed Stefanie Rengel to death outside her home. He was dating Todorovic (then 15), at the time. The Crown alleged Todorovic encouraged Bagshaw to kill the victim due to an obsessive jealously she had over Baghshaw’s prior relationship with the victim several years earlier.

Bagshaw confessed his role in the crime to a friend that same night. Officers began their investigation and learned of his relationship to Todorovic. They interviewed her with her mother at a police station beginning around 3:05 am on January 2, 2008. Before they began questioning her, they gave Todorovic a standard “K.G.B.” warning and she was told she could choose whether to make a statement or not. As the police did not believe she was a suspect at the time, they did believe they had to caution her about her rights under the YCJA or the Charter.

She ultimately gave an incriminating statement to the effect that she had asked Bagshaw to kill the victim. At that point, she was formally arrested and read her rights.

Section 146 of the YCJA

Section 146 of the YCJA governs the admissibility of statements made to persons in authority by young persons. In order for those protections to become available, however, the young person must be arrested or detained, or the police must have reasonable grounds to believe the young person has committed an offence. It does not apply to the questioning of young persons who are simply witnesses, or persons of interest.

In R v LTH 2008 SCC 49 the Supreme Court of Canada explained the purpose behind this section was to recognize that “’[y]oung persons, even more than adults, are inclined to feel vulnerable when questioned by police officers who suspect them of crime and can influence their fate.” (LTH at para 1.) These protections are required because “young persons… are presumed on account of their age and relative unsophistication to be more vulnerable than adults to suggestion, pressure and influence in the hands of police interrogators.” (LTH at para 3.)

Todorovic’s Interrogation and the Test for Detention

The Court of Appeal held the test for determining if someone is “detained” was established by the Supreme Court of Canada in R v Grant 2009 SCC 32. One can be detained psychologically, in circumstances where a “reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.” (Grant at para 44.) Both the nature of the police conduct and the circumstances of the individual are relevant, including the individual’s age. (Grant at para 44.)

In Todorovic’s case, the police knew before questioning began that her boyfriend had killed the victim and about an incident three months earlier in which Baghsaw had attended at the victim’s house and told her that his girlfriend wanted him to stab her.

The police called Todorovic’s mother just before 3 am and told her she could come to the station with her daughter or the police could come and pick them up. She offered to cooperate and attended at the station with her daughter. During questioning, the door to the interview room was shut but not locked. The appellant was told she was not under arrest and was not obligated to give a statement. She was never told she could leave, however.

In rejecting Todorovic’s argument that she was detained at this early stage of the interrogation, the Court of Appeal noted that she was free to leave at any time. But nowhere in the decision does the Court consider whether or not her status as a young person was relevant to making this determination.

A Reasonable Young Person?

Surely a child’s age would affect how a “reasonable person” in her position would perceive her freedom to leave in these circumstances. By definition, s. 146 of the YCJA requires an analysis of the “reasonable young person.” Behaviour and perception are very different at an early age; indeed, as the Supreme Court of the United States observed in JDB v North Carolina (131 S. Ct. 2394 (2011)), it is folly for courts to mistakenly view children as simply “miniature adults.” (JDB at 2404.)

Ignoring those “very real differences between children and adults” could have the effect of disenfranchising children from their enhanced procedural safeguards. (JDB at 2408) Thus in JDB, the Supreme Court of the United States held that courts must consider the age of a detainee when assessing if his or her Miranda rights were triggered.

Yet nowhere in the Todorovic decision is any such consideration explored. Perhaps it would not have made any difference. Todorovic was ultimately sentenced as an adult.

It will now be for a future Canadian court to determine whether or not in certain circumstances, detention may be found for a child where it would not be found for an adult, as the Supreme Court of the United States found in JDB.

This guest post was written by Brock Jones: Crown counsel, Crown Law Criminal; Adjunct Prof. Of Law, University of Toronto. The opinions expressed herein are those of the author and do not reflect those of the Ministry of the Attorney General.

Friday, January 24, 2014

What Are Extrajudicial Measures and Sanctions?

The Youth Criminal Justice Act (“YCJA”) says it is better to deal with less serious offenses outside the court system. This is often the most appropriate and effective way to address non-violent youth crime.

EXTRAJUDICIAL MEASURES: are designed to hold young people responsible for wrongful behaviour without formally charging a youth with a criminal offence. The police can give warnings (informally), cautions (usually a letter sent to you and your parents and may require you and your parents to go into the police station to speak with an officer), or referrals to a community program. The crown attorney can also give a caution instead of a charge, or withdraw a charge and give a caution instead.

EXTRAJUDICIAL SANCTIONS: may be given by a Crown attorney before or after a young person has been charged with a criminal offence, as a way of dealing with the offending behaviour without proceeding further through the formal court system.  They may be used only if a warning, caution or referral is not enough to hold the young person responsible. The Crown can request an extrajudicial sanction and a referral to an extrajudicial sanction programs before or after the young person has been charged. If you are accepted into the program, you will be required to complete the program. This means you will get some consequences for your actions, but you will not go through the court system and be punished by a Judge.




http://images.sodahead.com/profiles/0/0/2/1/8/0/2/1/7/youth-arrests-64423613809.jpeg


You can get an extrajudicial sanction only if:
  • there is such a program where you live;
  • the police or the crown attorney thinks that the program is the right thing for you and for the interests of the community;
  • you are told all about the program and you freely agree to participate;
  • you have been given a chance to consult with a lawyer;
  • you are willing to accept responsibility for what the police say you have done wrong; and
  • there is a real case against you, and you could otherwise be brought to trial through the court system
There are a number of different options for an extrajudicial sanction program, some examples include: You may be asked to do some kind of community service, participate in a conference, write an essay or letter of apology, go to workshops, do a mediation, or perhaps do something else that would be relevant to you or the offence.

When you successfully complete the program, then any charge that has been laid against you will be dismissed and you will not have to return to court on this matter. Additionally, a record of your participation in the program will stay in the records of your local police for only 2 years. You will not get a youth justice court record. 


This blog post was written by Lauren Grossman, a first year law student at the University of Toronto who volunteered at JFCY through her law school’s Pro Bono Students Canada program in 2012/13. All legal content was reviewed by a JFCY lawyer. JFCY's legal content is based on the laws in Ontario relevant to youth under the age of 18.