Court Cases By International

Canada

Regina v. J. (T.)
[1999] Y.J. No. 57 (Yukon Territorial Court)
Full text available on Westlaw, 1999 Carswell Yukon 99 [1999] Y.J. 57.

Sexual Offenses

At the age of 15 T.J. was charged with sexual assault for the following incident:

"[H]e committed a sexual assault on a 15-year-old girl D.C., by lying on her bed or on top of her, while wearing no pants. D.C. was wearing night clothes, and there may have been a bed cover between her and T.J.. when confronted by the complainant he exited the room quickly. There is no indication that force was used, or that he attempted to fondle her. This incident occurred in a group home where both young people were residing."
Par. 4. During the seven years that followed T.J. was for a time confined to juvenile institutions, and then returned to the custody of his adoptive mother. There were no further complaints of sexual misbehavior.

Sentencing

"[T.J.] was required to attend [a Canadian] residential treatment program in Calgary for an extended period of time away from his family. He was also placed in a transition home in Whitehorse. These placements did not turn out to be positive experiences, as his behaviour and ability to care for himself degenerated. For the last several years, however, he has been living with his adoptive mother, has attended programming provided by social services, and has had work placements with Challenge, Yukon. In comparison with his other placements, T.J. has thrived in his home placement."
Also, see paragraph 12 quoted below.

Symptoms of FAS/FAE

This opinion contains a detailed description of the nature and behavioral consequences of FAS, drawn largely from published medical journals. With the exception of certain facial abnormalities, that description is equally applicable to FAE. The paragraph numbering is from the opinion itself.

"9--Modern science has generally accepted the proposition that alcohol is a toxic substance that can permanently disable a fetus who is exposed to it while in utero. Fetal Alcohol syndrome is the diagnosis given to those patients who suffer at the severe end of a continuum of disabilities caused by maternal alcohol use during pregnancy. Three types of characteristics are manifested by individuals with FAS: 1) general growth deficiencies; 2) structural abnormalities, primarily facial; and 3) central nervous system abnormalities or dysfunction. This last category includes mental retardation, leaning disabilities, motor skills impairment, seizures and attention deficit disorder which may or may not be accompanied by hyperactivity. . . .
10--. . . FAS is the leading cause of mental retardation in North America . . . . [T]he intellectual impairment is not a matter of developmental delay but reflective of the underlying, permanent brain damage suffered by the FAS patient while in utero.

11--Accompanying the mental deficits is a variety of behavioural and developmental deficiencies. The cognitive processes that most people use to regulate their conduct and to adapt to their social environment are located primarily in the anterior frontal lobe of the brain. The effect of alcohol on the fetal brain is such that this region does not develop sufficiently to allow the FAS individual to appropriately control his or her actions. As such, FAS patients tend to be impulsive, uninhibited, and fearless. They often display poor judgment and are easily distracted. Difficulties in perceiving social cues and a lack of sensitive often cause interpersonal problems.

12--FAS patients have difficulties linking events with their resulting consequences. These consequences include both the physical, e.g. getting burned by a hot stove, and the punitive, e.g. being sent to jail for committing a crime. Because of this, it is difficult for these individuals to learn from their mistakes. Lacking sufficient cognizance of the threat or fear of consequences, the FAS patient is less likely to control his or her impulsive behaviour. Similarly, FAS individuals have trouble comprehending that their behavior can affect others. As such, they are unlikely to show true remorse or to take responsibility for their actions. . . .

14--FAS patients tend to come from unstable family situations. Nearly one-third of FAS children never live with their biological mothers. They are either given up for adoption at birth or abandoned at the hospital. A recent study showed that, on average, an FAS child will have five different principal residences. . . .

16--By the time the FAS child reaches adolescence, school has become a significant source of frustration. The inability to master basic skills in earlier grades makes the ordinary tasks required at the high school level essentially impossible for FAS youth. This, coupled with the on-going issues of social maladaptation and lack of recognition of consequences, makes for an inhospitable learning situation predicated largely on failure. A recent study found that 60% of FAS youth are suspended from, expelled from, or dropped out of school. . . .

17--Troubles at school tend to diminish the FAS youth's self esteem and to alienate him or her from the main peer group. The highly social FAS youth is then prone to seek out friendship and acceptance with 'the wrong crowd.' . . .

18--Individuals with FAS experience high rates of offending. One study showed that 61% of FAS adolescents had run afoul of the law at least once. Most frequently, this involves shoplifting and theft. A recent study in Saskatchewan estimates that as many half the young offenders appearing in provincial court suffer from FAS. the study found that FAS offenders were rarely motivated by malice but were more likely to have been exploited by smarter, more savvy criminals. Ironically, FAS offenders tend to make model prisoners because they respond well to the structure environment. . . .

19--As adults, a significant number of those patients with severe FAS will never be able to live independently or obtain gainful employment. Those who possess sufficient skills to obtain employment are at greater risk of termination for unacceptable job performance, inattention to detail, and/or absenteeism. . . .

20--FAS children are very demanding and needy in their school environments and, as mentioned earlier, this tends to result in school suspension and expulsion. Within the child welfare system, FAS children utilize a disproportionate share of resources and are often shuffled over to the Young Offenders system. As adults they often end up living on the street or in jail due to a dea[r]th of homes which provide semi-independent living."

Paragraph 9 is incorrect in one detail. FAS is not at the more severe end of the disabilities caused by maternal use of alcohol; rather, FAS is associated with affected individuals who have certain facial abnormalities. Among the entire population with FAS or FAE, the cognitive impairments among those with FAS is not significantly higher than among those with FAE.

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