Judge's nudge badly needed

The Star Phoenix News, Saskatoon, SK, Canada

Opinion: January 13, 1999

The judge who ordered the government to develop a community-based treatment program for a 12-year-old arsonist with fetal alcohol syndrome instead of jailing the girl deserves kudos for the decision.

In a province that locks up more of its young than any other jurisdiction in North America, Judge Mary Ellen Turpel-Lafond's ruling addresses a problem ignored for too long.

With research showing that nearly 50 per cent of young persons being ground through Saskatchewan's justice mill each year - a vast majority of them aboriginal youths - suffer from some form of FAS, it's to be hoped that Turpel-Lafond's decision finally will spur some action from government.

The predictable and tiresome accusation of "judicial activism" has again reared its ugly head in the wake of the ruling, with critics arguing that the girl should have been locked up for public safety, not let loose on the community.

Those who took the time to read the judgment or acquaint themselves with the effects of FAS, however, would agree that Turpel-Lafond's ruling was the better course of action in the long run and one that should serve as a model in other cases involving FAS-damaged youths.

"Community protection is not served by temporary warehousing of FAS children in secure custodial facilities because ... in all likelihood they will return to the community in worse condition," Turpel-Lafond said.

She worried that the youth, only identified as ML, would bond with anti-social peers and, "given her suggestibility, she will be ripe for participation in further criminal activity at the direction of a more sophisticated youth or group of youths she'll meet in secure custody."

As experts made it abundantly clear to the court, children such as ML who develop FAS as a result of their mothers consuming alcohol during pregnancy have no regard for the consequences of their actions.

Although they know right from wrong, they cannot relate cause to an effect. Therefore, the principles of deterrence and social denunciation that underpin incarceration don't apply to offenders with FAS. The goal of rehabilitation also doesn't apply, because FAS is a lifelong, physical neurological disability.

Turpel-Lafond found that ML, like so many others with FAS, needs education programming, pro-social activities, help to make positive contact with peers and family and a high level of supervision to help her rehearse and learn good behaviour in a social context.

Such mechanisms that help FAS kids to live with their disability effectively cannot be delivered in closed-custody, the court learned.

While FAS children learn to perform well in the structured custody setting, they have no ability to continue their behaviour once they regain their freedom. The case of Serena Nicotine, another FAS youth who performed well in lock-up but went on to kill the operator of the open custody home to which she was released, is a prime example.

Turpel-Lafond made it plain that jailing disabled children who severely lack education, socialization and life skills, instead of providing the resources needed to help them cope, is neither reasonable nor just.

It's something that our politicians have known all along but have so far avoided addressing, perhaps because they think it will cost too much.

Now, facing a court order that requires it to come up with a program for one youth within 45 days and similar edicts from other judges soon bound to follow, the government will be pressed to do what it should have done long ago, not just in the interest of the youths involved but for public safety in the long run.

Read a Saskatchewan mother's REPLY to this article.

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