By Lisa Kasper
Reposted with permission from LawNow 42-3 Jan-Feb 2018
Alberta’s youth criminal justice system is struggling to meet the demand for mental health treatment due to a lack of space in secure mental health treatment facilities. The youth criminal justice system would benefit from a more integrated approach to the administration of youth criminal justice services, the introduction of youth mental health courts, and the promised increase in funding for mental health services for youth in the system.
Most countries, including Canada, recognize that young persons are inherently vulnerable and have needs unique from those of adults. In the Canadian justice system, young persons are required to follow the same criminal and provincial laws as adults. However, a foundational principle of the Canadian youth justice system is that young persons should not be treated the same as adults. Moreover, the justice system applies unique principles when addressing youth crime:
- a reduced level of moral blameworthiness and accountability on the part of the youth due to recognized restrictions in maturity;
- greater focus on rehabilitation; and
- application of unique procedural measures to ensure equitable treatment.
The relevant federal and provincial legislation, respectively, are the Youth Criminal Justice Act, SC 2002, c 1 [YCJA] and The Youth Justice Act, RSA, 2000, c Y-1 [YJA]. Under both the YCJA and the YJA, a young person is defined as someone who is 12 to 17 years of age. The YCJA is largely focused on criminal law matters, which is within the exclusive jurisdiction of the federal government according to the Canadian Constitution Act. In contrast, the YJA covers violations of provincial and municipal by-laws, which are under provincial jurisdiction according to the Constitution. In Alberta, proceedings of violations by youth under both the YCJA and YJA are heard in the Youth Justice Court. A minor who is less than 12 years of age who is found in violation of the law will neither be arrested nor required to go to court. Rather, the goal is for the minor’s parents or caregivers to appropriately address the matter. In cases where this is not possible, the matter is referred to Child and Youth Services or a community mental health agency.
In addition, the YCJA provides for customized sentencing for youth suffering from mental illness. For instance, it emphasizes that neither pretrial detention nor custody are to be used in place of deemed necessary measures, such as mental health treatment. Recent research shows that these requirements have not been fully adopted.
In a recent case, a mentally ill youth was sent to jail instead of receiving the necessary court-ordered treatment. Judge Steven E. Lipton was the judge presiding over the case. In an unprecedented move, he invited the media into his courtroom to bring public awareness to this important issue. As a result of Judge Lipton’s actions, Premier Notley promised to secure more support services for youth in the justice system who are suffering from severe mental illness. A placement was eventually found in a secure treatment facility following the media’s coverage of the case. Sadly, it appears that Justice Lipton is not alone in his frustration with the limited resources available for treatment of mentally ill youth in the Canadian justice system. Concerns have recently arisen in Nova Scotia, Nunavut, Manitoba and New Brunswick.
One possible avenue for reform to Alberta’s youth justice system to address gaps in mental health delivery is to include a structural reorganization at a system-wide level. Alberta’s approach is fragmented, with responsibility in the province divided between the Ministry of Justice and Solicitor General and the Ministry of Children’s Services according to a recent comparative evaluation of youth justice approaches. Integration of youth justice service delivery has produced favourable results in other provinces. In British Columbia, adolescent mental health, youth justice and child welfare services are all under the umbrella of the Ministry of Children and Family Development. Studies show that an integrated structure can reduce the incidence of both communication and service gaps, as supervisory personnel are centralized. Provincial representatives from British Columbia have also reported that the integrated approach has allowed them to be more effective in their delivery of mental health treatment for youth in the justice system.
The principle of therapeutic jurisprudence is at the forefront in youth mental health courts. It allows the law to be applied in a manner that is less adversarial and encourages both the physical and mental well-being of the accused. The purpose of these courts is to direct accused individuals with mental illness away from the traditional justice system and towards mental health treatment in the community. Ontario introduced youth mental health courts in June of 2011. These courts operate within the framework of the youth criminal justice legislation. However, when youth have mental health needs, they can be referred to the youth mental health court at the discretion of a lawyer, family member or judge. Following a referral, youth receive an assessment from a mental health professional. Based on the recommendations of the professional, the Crown has the discretion to transfer the youth from the regular youth court to the mental health court. Research on the impact of Toronto’s first youth mental health court concludes that the court is making advances in addressing service gaps within the system, by providing more timely access to mental health services.
Research has shown that improved access to mental health resources benefits both the youth and the general public. Youth who receive mental health supports in the criminal justice system experience more beneficial outcomes. The public benefits from a heightened level of public safety. The potential benefits that could result from these reforms is particularly important given that over 90 percent of the youth in the criminal justice system suffer from some form of mental illness.