Stewart v Elk Valley Coal Corp., 2017 SCC 30

Contributed by Jenny Wang

Earlier this year, the Supreme Court of Canada confirmed and clarified the legal regime governing discrimination in the workforce based on disability pursuant to s.7 of the Alberta Human Rights Act (Act). In Stewart v. Elk Valley Coal Corporation, the majority of the court upheld the Alberta Human Rights Tribunal’s decision that the termination of a cocaine addicted employee did not constitute discrimination in the workplace. There has been a lot of discussion regarding the implications of the majority’s decision. Some believe that its practical effect would be to deprive drug-dependent employees of human rights protection in the workplace, while others argue that the highly dangerous nature of the work environment necessitated such a decision.

Mr. Stewart worked in a mine operated by Elk Valley Coal Corporation (the employer). As the mines were extremely dangerous, workplace safety was a primary concern for Elk Valley Coal Corporation. The employer established a policy requiring employees to disclose whether they had any drug dependencies or addiction issues. Upon disclosure, these employees would be offered treatment from the employer. In addition, the policy specified a “no free accident” rule such that if one were to be involved in a workplace accident and was subsequently tested positive for drug use, the employee would be terminated immediately if he or she had failed to disclose the addiction.

After being involved in a workplace accident, Mr. Stewart was tested positive for drugs and admitted that he was addicted to cocaine. Nine days later, Elk Valley Coal Corporation terminated Mr. Stewart. As addiction is a recognized disability under the Act, Mr. Stewart argued that the termination constituted discrimination based on disability pursuant to s.7 of the Act.

To claim discrimination under the Act, the plaintiff must first show a prima facie case of discrimination. To do so, the employee must prove: “(1) a disability which is protected under the Act; (2) adverse treatment with regard to his employment or a term of that employment; and (3) that the disability was a factor in the adverse treatment.” Once a prima facie case is established, the onus shifts to the defendant to show that the employer accommodated the employee to the point of undue hardship for the employer.

Alberta Human Rights Tribunal Decision

The tribunal held that Mr. Stewart failed to establish prima facie discrimination. The tribunal relied on expert evidence to conclude that Mr. Stewart was in fact addicted to cocaine at the time of the incident. Moreover, it also considered Mr. Stewart’s termination to be adverse treatment. However, the tribunal was of the opinion that the disability was not a factor in the termination and therefore Mr. Stewart failed to meet the three-step test to establish prima facie discrimination. It argued that the employer would have terminated Mr. Stewart regardless of whether he was an addict or a casual user of cocaine under the established policy. Mr. Stewart argued that his denial of his addiction prevented him from disclosing his condition prior to the incident. However, the tribunal dismissed this argument, holding that Mr. Stewart’s denial was irrelevant because he had the capacity to comply with the policy’s terms and decide not to take drugs prior to work.

Although the tribunal recognized that the distinction between termination due to disability and termination due to failure to comply with policy may appear to be superficial, it nevertheless found that Mr. Stewart’s termination was based on noncompliance with the policy and not because of his disability.

The Alberta Court of Queen’s Bench and the Alberta Court of Appeal both upheld the Tribunal’s decision.

Majority Opinion

McLachlin C.J., writing for 6 judges of the Supreme Court, dismissed the appeal. In the analysis, the majority showed deference to the tribunal’s decision, stating that the court’s role is to determine whether the tribunal’s judgement was within a range of possible and acceptable outcomes. The court deemed that the decision was in fact reasonable in the circumstances as there was evidence supporting the tribunal’s conclusions.

The majority recognized that in some cases, drug and alcohol addiction may affect one’s ability to comply with rules, while under other circumstances addiction does not. In the former scenario, the breach of workplace rules will be inextricably connected with the addiction whereas in the latter, the noncompliance would not be associated with the addiction. In this case, the majority concluded that the facts do not support the conclusion that Mr. Stewart failed to comply with the policy due to his addiction.

Furthermore, the majority refused to assess whether the employer’s termination decision was stereotypical or arbitrary. McLachlin C.J. believed that to add a fourth step would result in shifting the focus to determining whether there was discriminatory intent rather than discriminatory impact.

Concurring Opinion

Unlike the majority, Moldaver J. and Wagner J. believed that there was prima facie discrimination. However, this discrimination was justified because Elk Valley Coal Corporation could not further accommodate Mr. Stewart without incurring undue hardship.

According to these two judges, the residual control that Mr. Stewart had on his decision to use cocaine reduced the extent to which his addiction contributed to the termination but did not eliminate it as a factor. Therefore, Mr. Stewart’s addiction was still a factor in the adverse treatment. However, the concurring judges were of the opinion that the employer reasonably accommodated Mr. Stewart. As the mines are extremely dangerous, the policy sought to deter employees from using drugs such that it would affect their work and result in dangerous working environments. Had Elk Valley Coal Corporation not terminated Mr. Stewart and provided him with a less serious consequence instead, the deterrence effect of the policy would be greatly diminished. Therefore, Moldaver J. and Wagner J. found Mr. Stewart’s immediate termination to be reasonable in the circumstances.

Dissenting Opinion

Unlike the majority and concurring judges, Gascon J. found Mr. Stewart’s termination to be discriminatory. Gascon J. focused on the stigma that exists surrounding those who are addicted to drugs: “Still, stigmas surrounding drug dependence – like the belief that individuals suffering from it are the authors of their own misfortune or that their concerns are less credible than those of people suffering from other forms of disability – sometimes impair the ability of courts and society to objectively assess the merits of their discrimination claims. These stigmas contribute to the ‘uneasy fit of drug addiction and drug testing policies in the human rights arena’ noted by the Alberta Human Rights Commission.”

For Gascon J., a policy resulting in immediate termination prima facie discriminates against those who are dependent on drugs. Moreover, the two types of accommodations that Elk Valley Coal Corporation provided Mr. Stewart – namely, treatment had he disclosed his addiction prior to an accident and the possibility for him to reapply to the corporation after participating in a rehabilitation program – did not justify the discrimination.

The first accommodation was not accessible to Mr. Stewart because at that time, he was unaware of his dependency, a symptom of his addiction. Furthermore, the second option does not constitute accommodation for the purposes of this case. Reasonable accommodation requires the employer to provide options for the employee while he or she is still an employee, rather than giving him or her the option to reapply after the fact. These two options failed to consider Mr. Stewart’s circumstances, and therefore, the second prong of the test was not met.

Commentary

In this case, the court reiterated the two-pronged test used to establish a case of discrimination based on disability under the Act. Although the majority did not the change the legal regime, their application of the law have left some with a heavy heart. In effect, the mere existence of addiction does not establish prima facie discrimination if the court concludes that one was terminated due to noncompliance of workplace policies. Although the highly dangerous nature of the work was an important consideration, some argue that the court adopted a narrow interpretation of addiction.

 

Jenny Wang is a third-year student in the B.C.L./LL.B. program at McGill University, Faculty of Law and is a Senior Online Editor with the McGill Journal of Law and Health. Prior to starting at McGill, Jenny completed the Arts and Sciences program at Marianopolis College.

Saadati v Moorhead, 2017 SCC 28

Contributed by Pouya Dabiran-Zohoory

Background

Canadian Tort law has developed to require four broad criteria to satisfy a claim in negligence: 1) A duty of care which is owed to the plaintiff, 2) a breach of that duty which, 3) leads to damages, and 4) a legal and factual causal relationship. Historically, the common law has been hesitant to recognize non-physical injury as compensable, with additional requirements for proving psychiatric injury. Canadian common law has been shifting away from this requirement, with both the Mustapha v Culligan (Mustapha) decision in 2008 and the recent decision of Saadati v Moorhead (Saadati) in 2017, discussed here. Saadati has made it less onerous for plaintiffs to prove “psychiatric” injury.

The main issue in Saadati was defining “mental injury” in a claim of negligence, and deciding how that can be determined to exist in court. More specifically, the issue was whether a claim of mental injury must conform with what an expert witness from the medical community has defined as a psychiatric injury, or whether the determination necessarily belongs to the trier-of-fact.

Facts and Judicial History

The plaintiff, appellant to the Supreme Court of Canada (SCC), was involved in a car accident when his tractor-truck was struck by a vehicle driven by the defendant, the respondent. Although the appellant’s truck was damaged, he seemed uninjured. This accident was the second in a series of five accidents that the appellant suffered between the years of 2003 and 2009. The appellant sued the respondents, the three parties involved in the first three accidents, for non-pecuniary damages and past income loss, before suffering the two later accidents.

At the Supreme Court of British Columbia, the respondents collectively admitted liability for the accidents but took the position that the appellant did not suffer any damage. The trial judge concluded the appellant had not suffered any physical damages, but had suffered “psychological injuries, including personality change and cognitive difficulties” based on testimonies of friends and family of the appellant. The British Columbia Court of Appeal decided that the appellant had failed to prove he had suffered a medically recognized psychiatric or psychological illness or condition, and therefore no injury, holding that such illness or condition must be demonstrated by “expert medical opinion evidence”.

Analysis

The court began the analysis with a look into how the common law has historically viewed negligently caused mental injury. The judgement outlined the early common law’s “suspicion and sometimes outright hostility” toward such claims. The court showed how this skepticism continued into the past century by highlighting that mental injury was not compensable unless accompanied by physical injury. This, along with further barriers to recovery outlined in common law cases surrounding classes of victims and different types of proximity, were used to show the how difficult recovery has been in common law jurisdictions globally.

The court differentiated Canadian common law developments by citing Mustapha as the leading authority for the requirements to recovery for mental injury which held them to be no different than the “criteria applicable to any successful action in negligence”. The court held that the additional barriers to recovery for mental injury weren’t “based on legal principle, but on policy […] founded upon dubious perceptions of, and postures towards, psychiatry and mental illness in general: that mental illness is subjective or otherwise easily feigned or exaggerated; and that the law should not provide compensation for trivial matters”.

The court took issue with the premise that to compensate for mental injury, a plaintiff would need to obtain relevant expert testimony from the medical field as proof that they have suffered a “clinically diagnosed, recognizable psychiatric illness”. The court emphasized that to confine compensable mental injury to conditions identifiable with these diagnostic tools is suspect as a matter of legal methodology, and that the law is not concerned with accurate diagnoses, but rather with “symptoms and their effects”.

Responding to potential criticisms of the judgement leading to indeterminate liability, the court emphasized that the framework for negligence – particularly the proximity analysis in the duty of care component – will satisfactorily contain potential liabilities. In a transsystemic fashion, the court drew a comparison to Québec Civil law which allows compensation for “moral” injury under article 1457, to show that liability can still be contained.

The court also took issue with treating mental injury and physical injury as distinct under the law. The concern was that requiring a claim of mental injury in negligence to be classified as such in the medical community, but not requiring the same condition for physical injury claims, would lead to “less protection [for] victims of mental injury” and “for no principled reason”.

Having said this, the court was cognizant of the difference in nature between mental and physical injuries – that the latter is more readily apparent than the former. In discussing this, the court made clear that even without requiring expert testimony to prove mental injury, the courts will still only compensate for mental injury which “rises above the ordinary annoyances, anxieties, and fears that come with living in civil society”.

Lastly, the court was very clear in maintaining that expert testimony can still be helpful in determining whether or not mental injury has occurred, by determining, for example, how seriously the plaintiff’s cognitive functions were impaired. The court even went so far as to say that not adducing relevant expert evidence to assist the triers-of-fact can run the risk of damaging plaintiffs’ cases. Nevertheless, the court reiterated that, while expert testimony may help a claimant prove the existence of mental injury, it is not required as a matter of law.

The court found the trial judge to have been correct in their application of the law, and found that mental injury had occurred even without the existence of expert testimony.

Comments

The court’s primary concern in Saadati seemed to be the abdication of judicial responsibility in cases of negligence causing mental injury. Specifically, the court repeatedly mentioned how classification becoming a necessary component of the law of negligence would be problematic.

It is unclear in the judgement, however, why it is not possible to take into account expert testimony regardless of whether the expert believes that the plaintiff’s injury falls within a specific classification under diagnostic lists such as the Diagnostic and Statistical Manual of Mental Disorders (“DSM”) and the International Statistical Classification of Diseases and Related Health Problems (“ICD”) which were mentioned in the case. The court’s concern with these diagnostic lists not always being at the edge of scientific development in the field are reasonable. However, if this is the primary concern, it is unclear why an expert cannot still be required to inform the deliberation over whether psychiatric injury has occurred, based on that expert’s understanding of the current state of knowledge. Justice is important, and therefore it is equally important that there not be a miscarriage of justice based on faulty assumptions, which the court itself emphasized earlier in the case.

It is possible that the court wished to expand the scope of compensation for recovery of mental injury to include not only psychiatric harm, but also pure emotional harm, which the courts have historically not allowed compensation for, unless accompanied by physical injury. This isn’t objectionable from the perspective of redefining what constitutes justice in a case of negligence.

However, even if the courts intend to treat psychiatric and pure emotional injuries as the same under the umbrella of “mental injury”, how will the courts differentiate between mental injuries which rise “above the ordinary annoyances, anxieties, and fears that come with living in civil society”, and others which do not? As Dr. Stephen Smith notes, it could be problematic to conflate emotional harm with psychiatric harm, since the Anns-Cooper test for duty of care developed in Cooper v Hobart is not designed to limit liability based on the nature of the injury.

Perhaps using the term “mental harm” instead of “mental injury” would be helpful in alleviating some confusion. The court specified that they are concerned with “symptoms and effects”. An injury leads to symptoms and effects which cause harm to an individual, and so the true justiciable question may be whether the plaintiff suffered mental harm rather than a mental injury, which is a question a trier-of-fact may be better able to address without assistance from a medical expert. This is because the question would focus on how the plaintiff has been negatively affected, rather than diagnosing the injury leading to those effects.

Nonetheless, the precedent set by this case may help alleviate access to justice concerns for plaintiffs who cannot afford experts but have suffered very real mental harm, for which they should be compensated.

Pouya Dabiran-Zohoory is a Senior Online Editor with the McGill Journal of Law and Health, with a keen interest in sustainable development, specifically with a focus on climate change and its effects on human and animal health. He holds a Bcomm in law and business from Ryerson University. Since he joined the Faculty of Law at McGill University in 2016, he has taken an interest in how the common law, civil law, and regulations address health issues.

The Curious Dichotomy of (in)Sanities

Contributed by Loïc Welch

For most people, the inner workings of the brain and the resulting behaviour work seamlessly, and we behave in “socially acceptable” ways. But, what happens when the brain is “faulty?” Take for instance the famous case of Phineas Gage, who had a tragic accident at work, where a railroad blasting rod pierced through his skull into his brain. Mr. Gage survived this accident, however, his once well-behaved personality was altered to a more chaotic one. He began gambling, and became short-tempered, impulsive, and violent. Mr. Gage had suffered damage to the area of the brain known as the orbitofrontal cortex, implicated in emotional regulation, decision making, and impulse control.

Phineas Phinease Gage suffered brain trauma from a rod that pierced through his skull || (Source: Flickr // Protocol Snow)

If, for instance, Mr. Gage had killed someone in a barfight, without premeditation; by today’s legal standards, would Mr. Gage be found guilty (of 2nd degree murder or manslaughter) or would he instead be found not criminally responsible on account of mental disorder (NCRMD)? Is he responsible for his aberrant, perhaps incontrollable, behaviour ensuing from a traumatic brain injury? Or to the crux of the issue, are humans responsible for their behaviour, if it is nothing more than the result of brain function? A biological view of behaviour suggests that regardless of whether someone has a rod in their brain (tumour or other forms of severe brain trauma), all of their actions are controlled by their brain’s function.

The Guilty Mind

The above example is an introduction to the deterministic view of human behaviour as dictated by our brain (mal)functioning. Mr. Gage’s actions were determined by a brain that “misfired” as a result of physical trauma, leaving very little room for the concept of free will and voluntary action. This poses a fundamental challenge to the concept of criminal justice that relies on a crucial principle: that only the morally guilty should be punished. Guilt is determined by a defendant’s level of culpability, or in legal terms, their mens rea, which comes from the Latin phrase actus reus non facit reum nisi mens sit rea, translated to “the act is not culpable unless the mind is guilty.” The basic tenets of criminal justice inform our conception of mens rea: guilt is determined by one’s capacity to distinguish right from wrong and subsequent choice to act in the wrong. There is an assumption of free will and voluntary action. What happens to mens rea if the neuroscientific understanding of brain and behaviour removes free will from the agent? This question has lead to such defences as sane automatism, which can lead to full acquittal because it removes voluntary action from the individual.

The Not-so-Guilty Mind

To understand the case below (R v Stone), let me first explain the concept of automatism. There are two types of automatism defences: the first is sane automatism, where involuntary behaviour does not result from a mental disorder and is a complete defence, giving rise to full acquittal. For instance, sane automatism could be used as a defence if a defendant had murdered someone during a sleepwalking episode. Indeed, the Supreme Court of Canada, in R v. Parks, upheld the trial decision of allowing sleepwalking to be used as a sane automatism defence. This brings back the notion of mens rea: that only voluntary actions may lead to legal culpability. Generally, the factors required for a sane automatism defence must be extrinsic and are as follows: (1) there must exist an involuntary action arising from external source (or reflex action); (2) the action must be completely involuntary; and (3) the automatism must not be self-induced (that is why excessive alcohol/drug consumption is not a viable defence of automatism).

What happens to mens rea if the neuroscientific understanding of brain and behaviour removes free will from the agent?

The second type is insane automatism, where the actions of the accused are held to be the result of a mental disorder and triggers s.16 of the Canadian Criminal Code leading to a defendant being found NCRMD, again reflecting that the defendant could not appreciate the nature and quality of their act. Recall the earlier example of Mr. Gage killing a patron during a bar brawl; which of the two automatism defences could be argued most effectively? Would Mr. Gage’s brain injury justify the use of insane automatism because it would be considered as resulting from an internal cause? Or would the murder be acquitted under a sane automatism defence because Mr. Gage’s brain injury had an external causal factor [a rod] and was exacerbated by alcohol consumption? The predicament raised by the automatism defences, and the fine line between what is considered sane or insane by the courts, identifies a disconnect between fictional legal dichotomies and the neuroscientific reality that our brain controls our behaviour in all situations. This renders the concept of voluntariness moot to the eyes of science.

(mis)Communication of Science in the Courtroom

In recent years, there has been a sharp increase in the use of expert witnesses in courts which exemplifies a shift in the legal paradigm toward “hard facts,” stemming from science and its rigorous methodology. Among these experts are psychologist, psychiatrists, neuroscientists, and other specialists whose mandate is to inform the triers-of-fact in making more scientifically-informed judgements. When neuroscience meets the legal discipline, it is coined neurolaw.

In 1999, the Supreme Court of Canada was confronted with the challenging case of R v. Stone where Mr. Stone was appealing the guilty verdict of manslaughter for the killing of his wife via 47 stabbings. The trial judge had instructed the jury to consider insane automatism as a defence, but this failed, and he received a seven-year imprisonment sentence for manslaughter. The appeal, asking for Mr. Stone to be found NCRMD, was dismissed by the majority of the Supreme Court justices. However, three of the justices dissented, stating that the assessment of the appellant’s mental status at the time of the crime was not fully presented to the jurors. Specifically, the forensic psychiatrist brought in as an expert witness testified that the appellant was in a dissociative state, considered an unconscious state, when killing his wife. Furthermore, this was not attributed to a mental disorder, but rather a reaction to severe stress allegedly inflicted on him by his wife. The trial judge, and the concurring appeal judges, stated that although the accused had “periods” of unconsciousness during the murder, the expert witness did not assess the lack of voluntariness required for the defence of automatism. Interestingly, the jurors found that the appellant did not commit the crime voluntarily, thus resulting in a guilty verdict of manslaughter. The problem here is that the trial judge had only informed the jury of insane automatism, which requires the presence of a mental disorder (which the appellant did not have). Had the judge informed the jury about sane automatism, the verdict may have been a full acquittal.

Dissociative A dissociative state can cause impaired consciousness || (Source: Flickr // Vlad Gilcescu)

The lack of proper instruction to the jurors in R v. Stone brings forward a very important issue arising from the increased use of science in court. Namely, a need for comprehensive scientific literacy on the part of the jurists. In this case, the SCC dismissed the appeal partly on the grounds that the steps required for the insane automatism defence were not satisfied, stating: “As I have explained above, automatism is more properly defined as impaired consciousness, rather than unconsciousness. Furthermore, lack of voluntariness, rather than consciousness, is the key legal element of automatism. Accordingly, the trial judge should have concerned himself with assessing whether there was evidence that the appellant experienced a state of impaired consciousness in which he had no voluntary control over his actions rather than whether there was evidence that the appellant was unconscious throughout the commission of the crime.”

Although eloquent in its rhetoric, this reasoning does not reflect the state of the scientific evidence. The judge rests the dismissal of the appeal on a false dichotomy between unconsciousness and impaired consciousness, wherein he posits that the former does not fall in the latter. If the question of whether unconsciousness fell in the realm of impairments of consciousness was put to a neuroscientist, several questions about what was meant about impairment and in what context would follow. Rooted in the context of R v. Stone the unequivocal answer would be a strong affirmative of: “Indeed, Mr. Stone was impaired of consciousness.” The next question for the neuroscientist would be: “If the appellant suffered from impairment of consciousness resulting from a dissociative state, could his actions be considered of his own volition?” The logical answer would be in the negative. The issue appears to boil down to one of mismatched communication. Where jurors, attorneys, and judges would benefit from increased scientific literacy to clarify the issues put before them and assess the true worth of the expert testimony, and where neuroscientist (and experts in general) could use a crash course in legal standards and a disambiguation of legal jargon.

Loïc Welch is an Online Editor of the McGill Journal of Law and Health and a first-year B.C.L./LL.B. student at McGill University’s Faculty of Law. Loïc holds a M.Sc. in Forensic Psychology from Maastricht University (Netherlands), was a research assistant at the Douglas Mental University Institute in Montreal, and interned at the Professional Clinical and Forensic Services, a part of the Institute of Violence, Abuse, and Trauma in San Diego, California.

 

Recap of Speaker Series 2017: Ethical and Legal Ramifications of Stem Cell Research

Posted by Handi Xu

Our first Speaker Series event of the 2017-2018 academic year consisted of a discussion on the ethical and legal ramifications of stem cell research. This event presented diverse perspectives on research involving the development, use, and destruction of human embryos, as well as its many potential benefits and its complexities and regulations.

Dr. Michel L. Tremblay, a leading researcher from McGill University’s Biochemistry Department, discussed the evolution of stem cell use and its current clinical applications. Notably, stem cells are capable of reproducing themselves and are also able to differentiate into other cell types. Since stem cells are difficult to isolate in humans, experiments involving embryo stem cells are usually performed using animals. These experiments aim to create stem cell mutations in order to understand normal gene function as well as their association to various human diseases such as cancer and obesity.

IMG_2747 Dr. Tremblay spoke about the current clinical applications of stem cells 

In 2006, Dr. Shinya Yamanaka, a Japanese stem cell researcher, discovered through the fusion of stem cells and tumor cells that some genes responsible for stem cell properties were dominant over other gene expressed in non-stem cells. Therefore, the fusion of these stem cells and cancer cells led the majority of the fused cells to be stem cell like.  He then discovered that only four dominant genes in stem cells were necessary to transform a normal cell into a stem cell (Induced Pluripotent Stem cells or IPS cells). He shared the 2012 Nobel Prize in Physiology and Medicine with Sir John B. Gurdon for showing that mature cells can be reprogrammed into pluripotent stem cells. This line of work proved that it was possible to use cells other than those from the embryo to generate stem cells, hence removing one of the major ethical issues of using human embryos to obtain stem cells. Nowadays, novel technologies of genetic engineering, such as CRISPR-Cas9-technology, allow the generation of specific manipulations of genomes in any human stem cell and in other cell types.

Dr. William Stanford, an influential stem cell researcher from the Ottawa Research Institute, detailed the history of stem cells discoveries. He further discussed the use of stem cells in clinical trials to treat a great number of diseases such as diabetes, blindness, and heart disease. They are also starting to be used in the development and assessment of new therapeutic drugs. However, the remarkable potential of stem cells to improve all spheres of biomedical research and treatment has spawn great competition due to the lucrative potential of these technologies. Since the cost and ethical regulations of stem research and therapies differ among many countries, other issues such as stem cell therapeutic “tourism”, fake treatments, and non-ethical research programs in non-clinically certified centres, have resulted in harm to patients in many countries lacking regulation. There is a continuous need for maintaining a legal framework for their applications as well as constant effort to inform the public on the advances and limitations of stem cells activities.

IMG_2749 Dr. Stanford spoke about ethical complications with stem cell therapies in countries lacking proper regulation 

Finally, Me. William Brock, a partner at Davies and a leukemia survivor that underwent bone marrow stem cell transplant, expressed his opinion on stem cell research from a patient’s perspective. Not only did his treatment allow him to realize how fragile and important life is, but it also led him to acknowledge the power of science.

IMG_2753 Me. Brock spoke about his personal experience receiving stem cell therapy 

Indeed, scientific progress has permitted the 100% mortality rate of leukemia fifty years ago to drop to 10% for children and 50% for adults today. Me. Brock also explained that ethics is differently defined for everyone; while one person might find stem cell research unethical, another person’s life or death could rely on stem cells. He believes that society cannot decide for a patient whether they should be allowed to receive a stem cell treatment or not.

When Science meets Alternative Sentencing: Young Adult Courts (Part 1)

Contributed by Souhila Baba

On the theme of psychology, this two parts blog-series will showcase recent developments in alternative sentencing, first in the United States and second in Canada, portraying how findings in science contribute to innovation in the legal field.

Don’t Treat Young Adults as Teenagers.” “Why Reimagining Prison for Young Adults Matters.” “​How Germany Treats Young Criminals.” “Criminals under 25 should not go to adult prison, MPs say.” These are but a few examples of the headlines urging change with regard to young adults in criminal justice around the world. While the law sets a threshold in differentiating adolescents from adults (18 years of age), science shows that the young adult (18-24 years of age) brain is still developing.

Young Adults in the Criminal Justice System

In Canada, once a person reaches the age of 18, they are no longer treated by the justice system as a juvenile offender, but as an adult. This results in an overrepresentation of young adults in the prison system. Following a section 7 constitutional challenge in 2008, the Supreme Court of Canada found that juvenile defendants (under 18 years of age) not only have a presumption of reduced moral culpability, they also cannot be sentenced as adults unless the Crown proves it is adequate beyond a reasonable doubt to do so. Since young adults are tried and sentenced as adults, they do not benefit from a similar presumption, and cannot be tried as juveniles. The Supreme Court of Canada is silent on this issue, and there are currently no alternative programs or sentences specifically catered to this age group.

Similarly, in the United States, young adults roughly ranging in age from 18-29, are also consistently overrepresented in prisons: making up 21% of inmates while representing only 10% of the population. Neuroscientific evidence has long held that the brain is continuously in development, from conception to death. While there are critical periods of significant brain development during infancy, childhood, and adolescence, the brain continues to undergo changes even into adulthood and beyond. In law, when a person reaches the threshold of 18 years of age they are characterized as an adult, without considering the developmental gradients that scientists are aware of.

The Science of Brain Development

Neuroscientists distinguish between an 18-year-old and a 26-year-old, as the development of certain brain regions is still in progress. Already in 1999, an experiment performed using Magnetic Resonance Imaging (MRI) technology to map differences in brain anatomy between adolescents (ages 12-16) and young adults (ages 23-30) found that the maturation at this stage was localized in the frontal lobe. The frontal lobe is responsible for decision making, assessment of risks and consequences, and impulse control. The study found that the maturation seen in the older age group was due to an increase in information transmission speed between brain cells, leading to increased cognitive function.

frontal The frontal cortex continues to develop in the young adult brain || (Source: Flickr // Laura Dahl)

But what does this mean? Simply put, with regards to impulsivity or assessment of risks, the young adult brain is not at the same cognitive level as the adult brain: an adolescent, or even a young adult, does not have the same appreciation of risks as older adults do. In this transition phase, young adults are prone to irresponsible and at times reckless behaviour. In failing to account for neurological and behavioural differences between young adults and adults, the criminal justice system sets standards that may be inadequate to account for the mens rea (i.e. moral blameworthiness) needed for a criminal conviction.

While these findings provide for a general understanding of this age group on average, they do not suggest that any given individual with specific anatomical characteristics has failed to appreciate the consequences of their actions. Sentencing is an individual-driven process, and as such, scientific findings about a particular age group only inform the possibility of reduced moral blameworthiness, but do not impose it. In any case, a lack of understanding of developmental nuances seems to correlate with an overrepresentation of young adults in penitentiaries.

Young Adult Courts

In several US states, specifically Idaho, Illinois and most recently California, there is an increase in sentencing diversion programs catered to young adults. In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind. No defendants for violent crimes are admissible to the program as the court mainly deals with felonies such as robbery and assault. All young adults (ages 18-24) admitted to the program go through mandatory classes on controlling emotions and impulses, anger management, and receive therapy. Moreover, they meet with the same judge on a weekly basis where their standing in the program is assessed: if their performance is adequate, they may continue in the program and eventually “graduate”, if it is not, they are sent to jail. Graduating from the program leads to reduced charges or full exoneration.

2870256515_283fcfc87d_o.jpg Young adult courts in the Unites States provide creative alternatives to traditional sentencing for young adults || (Source: Flickr // Priya Deonarain)

As these courts are still in their early stages, it is difficult to assess their effectiveness in reducing the overrepresentation of young adults in prison and in preventing recidivism. One thing is certain, however, in establishing alternatives to prison terms: this court is using an approach that is proactive rather than relying on the currently reactive system.

A Balancing Act

It is difficult to balance the autonomy of young adults and the need to protect a particularly vulnerable age group (see MJLH’s Medical Records Episode 1 with Prof. Shauna Van Praagh). In assessing the mental element of an offence (the mens rea), how much sway should the age of the defendant hold? The legal doctrine in the matter is divided, while the scientific evidence will inevitably be nuanced by social and environmental factors. For example, under certain conditions, young adults may exhibit higher-level reasoning than adolescents, performing at a comparable level to adults. A recent study investigating the cognitive control of individuals, found that young adults’ cognitive performance depended on their emotional level. The study specifically found that when shown images of people experiencing negative emotions, young adults reacted as impulsively as adolescents. However, when the participants were shown images of positive or neutral emotions, young adults reacted similarly to adults over 21 years of age.  They found that in the transitional phase of young adulthood, behaviour may be dictated by emotional state, where a negative emotional state resulted in similar behaviour as adolescents. This may be related to the criminal justice system context as criminal acts may correlate with negative emotional states.

In basing their programs on the neuroscientific evidence that young adult brains are still developing, young adult courts were created with preventive and rehabilitative goals in mind.

Moreover, neuroscience has shown us that there are no clear lines to be drawn between adolescents, young adults, and adults – effectively reflecting the legal approach of basing certain policies differently according to maturity level in different circumstances. As highlighted in this article, maturity level of an adolescent is based on the circumstances that are being assessed. This survey showed that although adolescents have the cognitive ability to make an informed decision pertaining to abortion, it does not necessarily follow that they should be treated as adults with regard to criminal consequences. This is due to the different cognitive abilities assessed in each situation. In deciding on abortion, young people are to be assessed based on their ability to reflect on moral and social implications. In this case, young adults are just as competent as adults. On the other hand, when determining moral culpability in a criminal matter, the cognitive function to be assessed is related to the young person’s psychosocial abilities such as impulse control and resistance to peer pressure: the cognitive skills that are still developing in young adults. This context-specific understanding of young adult decision making should be in line with the law’s reluctance to impose a higher standard in determining criminal culpability when dealing with young defendants, while still respecting the autonomy of young people to make and be responsible for their actions.

These findings show that there is still a need for research in this area, particularly as the young adult age group has been historically studied as part of the adult group. In this case, advocating for young adults to be treated as juvenile defendants may be an overstatement of the available scientific evidence. Instead, the establishment of young adult courts provide for a creative alternative in the wake of evidence pointing to the lowered moral culpability of young adults. The ongoing legal experiment in the US may provide future insights for the Canadian context.

Souhila Baba is a Senior Online Editor with the McGill Journal of Law and Health with a keen interest in mental health, access to health services, and access to justice. She holds a BSc in Psychology from Concordia University. Since she joined the Faculty of Law at McGill University in 2016, she has been able to expand her interests in policy, technology, science, and the law, and the important contributions that women make to these fields and their intersections.