Paths to Justice – Research in Brief


Welcome

I am pleased to introduce Paths to Justice: Research in Brief, a series of four short articles that describe current research dealing with Access to Justice, Fetal Alcohol Spectrum Disorder (FASD) and the criminal justice system.

Empirical research is important to inform the decision–making processes for developing legislation, policy and programs. The Research and Statistics Division is committed to ensuring that its research is both relevant and timely so that policy makers’ decisions are well-informed and resulting policy evidenced-based. In these short articles, the authors have provided succinct, accessible summaries of on–going efforts in these areas with many questions and few known answers.

These four articles follow:

  • Access to Criminal Justice and FASD
  • An inventory of programming for youth and adults who have FASD and are involved with the criminal justice system
  • Victim Services Workers’ experiences working with victims with FASD
  • Highlights from FASD Canadian Caselaw

Much research work on FASD and the criminal justice system remains. Paths to Justice: Research in Brief highlights this need. I hope that these summaries spark many important discussions and I welcome your feedback on them.

Steve Mihorean
Director
Research and Statistics Division

Access to Criminal Justice and FASD

Ab Currie, Chief Researcher

It is frequently observed that the term access to justice has no precise meaning. It is one of those evocative concepts like the rule of law that, to no disadvantage, has the power to rally support around almost any issue of law or justice. However, access to justice can be understood more systematically in terms of its historical development since it first appeared in the lexicon four decades ago. The classic model of access to justice is the "three waves" model, famously stated by Cappelletti and Garth in the mid-1970’s[1]. The first wave of the access to justice movement was legal representation for individual litigants and accused. The second wave was defined as the representation of diffuse interests in which legal action was aimed at achieving legal remedies for problems effecting groups or classes of people. The third wave was characterized as the development of a diffuse range of access to justice mechanisms, including public legal education, mediation, non-adversarial tribunals, the use of paralegals and other mechanisms all aimed at providing the appropriate solution taking into account the most appropriate resolution to the particular type of problem or dispute.

In its general form, the "three waves" model applies well to access to criminal justice[2]. The first and second waves of access to criminal justice are easily discernable as individual legal representation and, in the Canadian context, the litigation of Charter or rights issues under the Canadian Charter of Rights and Freedoms. The third wave of access to criminal justice has been slowly taking shape over the decades, beginning with the victim–offender reconciliation movement, evolving into the restorative justice movement, and in the emergence of holistic or whole-client criminal defence and, perhaps most prominently, in problem solving justice expressed by drug courts, mental health courts and community wellness courts. These initiatives all have the common objective of addressing the causes of criminal offending – mental health problems, substance abuse or social conditions; transforming the lives of offenders to the extent that they become able to take control of circumstances and conditions that are the precipitating factors of patterns of criminal offending. Preventing recidivism may be the outcome measure but the desired changes far more profound and durable.

A fundamental tenant of the third wave of the access to criminal justice movement is that criminal offending, family and relationship problems, other civil justice problems, long standing social problems in areas such as debt, housing or employment problems and mental or physical disabilities are interconnected problems in people’s everyday lives. In the seamlessness of everyday life, understanding and effectively dealing with one problem, in this case criminal offending, cannot be taken out of its context which, from this perspective, is the complexity of interrelated problems that may characterize individual’s daily lives. This is the foundation of a fundamental principle of access to justice: that it is necessary to look at individuals’ legal problems from the point of view of the people who experience them.

Accused persons who are affected by Fetal Alcohol Spectrum Disorder (FASD) present the most challenging case–in–point for a modern access to criminal justice approach. The cognitive functioning problems that may be the main cause of criminal offending admit to no simple and definitive solution. The problem–solving approach may not mean for accused with FASD gaining control over the precipitating condition. It does mean taking into account the manifest FASD symptoms and the other problems that characterize the individual situation and applying the same basic problem–solving framework common to the main strains of the modern access to criminal justice approach, as in drug courts, mental health courts, community wellness courts and holistic criminal defence. However, a sense of justice demands that something must be accomplished, as is currently being done in the other areas of access of criminal justice, although it is all a work in progress.

Providing access to justice for all Canadians involves serving the groups that have the greatest needs and are the most difficult to reach. At the same time, a progressive concept of access to criminal justice is demanding, requiring that more than the legal issues be addressed. Providing access to justice for individuals with FASD will be a great challenge. It is not by ignoring those in the greatest need that the country’s commitment to justice will be judged; our commitment to justice will be judged through responding to those most vulnerable.

An Inventory of Programming for Youth and Adults Who Have FASD and Are Involved with the Criminal Justice System

By Charlotte Fraser, Research Analyst

Introduction

There is a dearth of information surrounding available programming for youth and adults with Fetal Alcohol Spectrum Disorder (FASD) in the justice system. This is, in part, due to the lack of awareness of the incidence of FASD among this population. This research note summarizes findings from an inventory search that identified programs aimed exclusively at persons with FASD involved with the criminal justice system.

Methodology

FASD projects were identified using a combination of different sources. The information sources included pilot projects funded by Youth Justice, Department of Justice Canada; the inventory of resources for individuals with FASD published by the Canadian Centre on Substance Abuse; the Canadian Northwest FASD Research Network website; provincial and territorial departments of justice; and a Google Internet search.

Program managers of identified programs were contacted and asked to provide a thorough description of the program including mandate, length of existence, recruitment procedures, if the program included persons suspected of having FASD or diagnosed or both, funding sources, sustainability, costs associated with operating, and whether the program had been formally evaluated.

Results

One hundred and twenty–five agencies were contacted by phone or email throughout Canada. As of June 2008, eight programs were currently operating, of which six were for youth and two were for adults involved with the criminal justice system. Four of these programs had sustainable funding through their respective provincial jurisdictions or federal mandates. Only one of these programs has been formally evaluated. The eight programs are highlighted below:

Genesis House FASD Program, Westcoast Genesis Society, New Westminster, British Columbia

The Genesis House FASD Program offers transition housing and programming to adult male federal offenders released on parole. Genesis House opened in 2000 and is funded by the Correctional Service of Canada. Six of the 24 beds are reserved for clients suspected of having FASD or diagnosed with FASD. The costs associated with housing clients are $290,000 annually. They also offer services for offenders once they are no longer under legal supervision (post-warrant of expiry) which is not formally funded.

Lethbridge Community FASD Justice Project, Lethbridge, Alberta

Operating since 2002, the Lethbridge Community FASD Justice Project aims to influence case management for youth suspected of having FASD, to divert youth from the criminal justice system where appropriate, and to make sentencing recommendations to the court. One police officer manages the program. The program is funded provincially by Alberta Children–s Services. It costs $117,000 annually to maintain this project. The program serves approximately 48 youth per year.

Youth Justice FASD Program, Maple Ridge, British Columbia

The Youth Justice FASD Program in Vancouver offers diagnostic services and specialized programming for youth on probation in the Vancouver area. Operating since 2003, the program is a collaborative effort between the Asante Centre for Fetal Alcohol Syndrome and PLEA Community Services Society of British Columbia. The program offers diagnostic assessment, family support services, and integrated community support services. The program is funded provincially by the Ministry of Children and Family Development. Each FASD diagnostic assessment costs approximately $5,000 and the specialized programming offered by PLEA Community Services costs $43,000 per youth.

FASD Youth Justice Project, Winnipeg, Manitoba

The FASD Youth Justice Project in Winnipeg offers diagnostic services and specialized programming for youth remanded to custody. The program began in 2004 and is a collaborative project funded provincially by Manitoba Justice, the Clinic for Alcohol and Drug Exposed Children, and the Manitoba Adolescent Treatment Centre. The program offers diagnostic assessment, provides sentencing recommendations to the courts, and creates a comprehensive case management and re–integration plan for youth and their families. It cost just under $500,000 to operate the pilot phase of the program, which occurred over a 1.5 year period. It costs approximately $7,000 for each diagnostic assessment. This program has been formally evaluated.

FASD Justice Support Project for Youth, Edmonton, Alberta

Beginning in 2004, a Steering Committee representing members from various Alberta government departments (e.g., Alberta Justice and Attorney General, Youth Criminal Defense, Edmonton Police Service, etc.) and community agencies was formed to assist youth with FASD (both suspected and diagnosed) involved with the criminal justice system. The Steering Committee develops a comprehensive case plan for each youth with the goal of having them succeed in the community. Youth are linked with various community agencies. The project can assist up to 24 youth per year and in 2007 the project served 10 youth. There is no funding requirement for this project as the employers permit the Steering Committee members to work on this project as part of their regular employment duties. An evaluation is planned for 2008.

Yukon Community Wellness Court, Whitehorse, Yukon

In April 2007, the Community Wellness Court pilot project was launched and received two–year funding from the Yukon Department of Justice and the Department of Justice Canada. The court offers an alternative to custody for adult offenders with mental health problems, addictions, and/or FASD (both suspected and diagnosed). The court has a multidisciplinary team that takes a holistic approach to healing and wellness. The team includes probation, mental health nurses, addictions counsellors, a support worker and a consulting physician and forensic psychiatrist. This program has received $609,000 in total. As of June 2008 there are 13 clients in the program.

Empowering Justice Program, Winnipeg, Manitoba

The Empowering Justice program offers education and wrap–around support services to youth diagnosed with FASD who are on probation and have extensive auto–theft history. The program offers education services and extensive supervision. The program is operated by a community–based agency called New Directions for Youth, Children, Family, and Adults, and began in 2007. The program received three-year federal funding from the National Crime Prevention Centre and had an operating budget of $145,000 for the first year.

Kairos Youth Outreach Program, Thunder Bay, Ontario

The Kairos Youth Outreach Program began in 2007 and received two–year funding from the Department of Justice Canada. The program offers individualized outreach services for youth suspected or diagnosed with FASD who are in custody or on probation. Similar to the Empowering Justice Program, Kairos Youth Outreach Program offers wrap–around support services, including education, employment training, transportation, and intensive supervision. The program received approximately $100,000 for its first year of operation. The program serves approximately 14 youth per year. An evaluation is planned for the 2008–2009 fiscal year.

No civil or family justice related programming or services were identified from the scan. Other pilot projects have been conducted which offered programming to this population, but ceased operating due to lack of sustainable funding.



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