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.

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