There is a different approach to sentencing under the YCJA than in the criminal justice system for adults. 

The YCJA provides that the focus in sentencing should be on meaningful consequences, rehabilitation, and re-integration into the community. Special recognition needs to be paid to the developmental challenges, evolving capacities and unique vulnerabilities of young people. Meaningful consequences for a young person with FASD should recognize FASD and how it impacts them, and be tailored to their level of development and needs, and provide them with support to avoid breaches and getting trapped in the criminal justice system. (See R. v L.L.B., 2013 SKPC 165)

The two most important aspects to focus on in preparing sentencing submissions for a young person with FASD who is found guilty of an offence are:

  • the sentence must be proportionate to seriousness of offence and degree of responsibility of the young person for that offence. YCJA, s. 38(2)(c), and
  • the sentence must be the one that is most likely to rehabilitate the young person and reintegrate him or her into society. YCJA, s. 38(2)(e)(ii)

It is important that the terms of the sentence accommodate the needs of the young person with FASD. There is a risk that terms are imposed by the court with little thought to the actual consequences to the young person. Examples of this included onerous reporting conditions to a youth worker (probation officer), boundary restrictions that have little relevance to the offence and no contact provisions. 

An advocate for a young person with FASD can help the police and Crown understand the unique circumstances and cognitive abilities of the young person. The youth justice judge, when considering sentencing terms, needs to be informed about these circumstances and abilities, how the young person with FASD can be accommodated, and how the disposition of the case needs to match the circumstances of the young person. This means avoiding onerous terms that are likely to be breached. The emphasis should be on programs offering assistance to the young person and focusing on their support and reintegration – so they are not set up to be before the court again. (See R. v. ML, [2000] SJ No 17; R v. J (T.) (1999) Y.J. No. 57)