Difficult ‘By Design’: Viewpoints of Crown Attorneys and Defense Counsel Working With Youth With Intellectual and Developmental Disabilities in the Youth Justice System
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/14732254241237189 |
| Author | Daniella Bendo,Christine Goodwin-De Faria,Caitlin Baruth,Madison Moore |
| Date | 01 December 2024 |
| Subject Matter | Original Articles |
https://doi.org/10.1177/14732254241237189
Youth Justice
2024, Vol. 24(3) 444 –462
© The Author(s) 2024
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DOI: 10.1177/14732254241237189
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Difficult ‘By Design’: Viewpoints
of Crown Attorneys and Defense
Counsel Working With Youth With
Intellectual and Developmental
Disabilities in the Youth Justice
System
Daniella Bendo , Christine Goodwin-De Faria,
Caitlin Baruth and Madison Moore
Abstract
Despite the overrepresentation of youth with intellectual and developmental disabilities (IDD) in the youth
criminal justice system, little is known about their experiences. Drawing on interviews with defense counsel
and crown attorneys, we examine how Canada’s Youth Criminal Justice Act (YCJA) guides the work of
justice professionals and the extent to which this legislation responds to youth with IDD. Findings provide
insight into some of the realities and challenges justice professionals face in their role. We consider how
gaps between the YCJA and its application in practice may be addressed for youth with IDD in the youth
criminal justice system.
Keywords
crown attorney, defense counsel, intellectual and developmental disabilities, justice professionals, youth,
Youth Criminal Justice Act, youth criminal justice system
Introduction
Youth with intellectual and developmental disabilities (IDD) are vastly overrepresented
within the criminal justice system internationally (Jones, 2007; Marinos et al., 2020;
Matheson et al., 2022). In the Canadian context, little is known about their experiences
when interacting with the system. While statistical evidence in the Canadian adult crimi-
nal justice system suggests that inmates with intellectual disabilities are more than double
Corresponding author:
Daniella Bendo, Department of Childhood and Youth Studies, King’s University College at Western University, 266
Epworth Avenue, London, ON N6A 2M3, Canada.
Email: dbendo2@uwo.ca
1237189YJJ0010.1177/14732254241237189Youth JusticeBendo et al.
research-article2024
Original Article
Bendo et al. 445
than those without, the Canadian Government has failed to gather relevant statistical data
on youth with disabilities in all contexts including those who are involved with the justice
system (Canadian Civil Society Parallel Report Group, 2017; Matheson et al., 2022).
Introduced in 2003, Canada’s Youth Criminal Justice Act (YCJA) is designed to be sepa-
rate and distinct from the adult justice system and recognizes that young people are in a
process of growth and brain development (Jones et al., 2019). Specifically, the YCJA is
designed to (1) hold young people accountable through measures that are proportionate to
the seriousness of the offense and the degree of responsibility of the young person; (2)
promote rehabilitation and reintegration; and (3) address underlying causes of justice
involvement and, ‘respond to the needs of young persons with special requirements’ (s.
3(c) Declaration of Principle). Despite these legislative provisions, research illustrates
that young people in Canada experience inequalities within the youth criminal justice
system, barriers to their rights and access to justice across various stages in the criminal
process – arrest, diversion, bail, trial, and sentencing (Curling and McMurtry, 2007).
Likewise, justice professionals report issues that include little guidance on how to offer
special protections for justice-involved youth with IDD, a lack of effective training about
IDD, and limited resources (Richards and Ellem, 2018).
People with IDD are oftentimes not easily identified as having challenges in compre-
hension or decision-making by justice professionals because they are overly compliant
and suggestible, and they often seek to appear competent because of the stigma attached
to disability (Marinos, 2017). Without appropriate responses to youth with IDD, these
individuals are unable to access justice and participate meaningfully in their case, being
further marginalized by a justice system meant to address the underlying cause of their
justice involvement. Most seriously, youth with IDD are at risk of being wrongfully found
guilty (Marinos, 2017; Marinos et al., 2008). As noted by McGillivray and Waterman
(2003), while individuals with IDDs may be more vulnerable to negative outcomes in the
criminal justice system, the way they are treated within the system can exacerbate risks.
Justice professionals, and in particular, defense lawyers and crown attorneys, are in posi-
tions to play a pivotal role in supporting youth with IDD. While some research draws on
the viewpoints of justice professionals in understanding young people’s lived experiences
in the justice system (Cockram et al., 1998; Howard et al., 2019; Richards and Ellem,
2018), limited literature has focused on crown attorney and defense counsels’ experiences
and insights prosecuting and representing youth with IDD in Canada. As the youth justice
system is distinct from the adult system, and working with youth requires unique knowl-
edge and skill sets, the perspectives of justice professionals are critical.
It is important to acknowledge that the criminal justice system is not a substitute for
community-based services and supports for youth with IDD. The challenges and needs of
young people with IDD existed before they encountered the criminal justice system and
will be with them after their criminal justice system involvement has been resolved.
Although IDD may be part of the constellation of characteristics that brought a young
person into conflict with the law, IDD is not criminogenic. Actors in the youth criminal
justice system are cautioned against viewing the system as a place where young people
with IDD can be ‘saved’ or rescued (which was the case under Canada’s previous Juvenile
Delinquents Act). The authors of this article understand that the youth criminal justice
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