Many individuals whose mental and cognitive disabilities result in behaviour that untrained guards find difficult to manage in institutional settings are assessed as having high needs, yet are also frequently labelled as high risk even when their behaviour is essentially self-destructive, as opposed to being directed toward others in a reactive, much less predatory, manner. The practical reality is that mental and cognitive disabilities and related health needs are equated with risk and consequently usually result in an increased security classification.

In addition to the problems articulated above in relation to the impact of current assessment and programming approaches on the general population of prisoners, there is a multiplier effect to these problems for prisoners who have disabilities. Mental health concerns that are disabling undoubtedly create very real needs for prisoners and staff alike. However, equating mental health disabilities with risks only serves to perpetuate a social construction of persons with mental disabilities as dangerous. We are currently seeing this sort of construction in relation to young people, especially young Aboriginal and First Nations youth, who are labelled as having Fetal Alcohol Syndrome or Fetal Alcohol Effect – often without appropriate or accurate diagnosis. This is precisely the kind of stereotyping which is prohibited by the equality provisions of the Charter.

The equality provisions, s. 15, of the Charter requires both substantive and formal equality. As such, equal treatment does not necessarily mean the same treatment. For instance, persons with disabilities may require that extra measures be implemented to provide them with the same level of service as the non-disabled community. Thus, if young people with mental or cognitive disabilities are criminalized, the juvenile justice system response should not continue to vilify them. Rather, the more appropriate response would be to provide the extra support required as a result of their disabilities in order to assist them to function at the lowest level of correctional security and supervision possible, preferably in the community. Using the need for mental health treatment or cognitive support as a reason to assess youth as high risk or security imposes harsher treatment on them. Since such treatment is occasioned by the criminal justice response to their disability, it is clearly discriminatory and contrary to s. 15(1) of the Charter.

Alternate Assessment Proposal and Concluding Observations

Intake assessment and security classification of youth should be based on demonstrated behaviour and individual achievements within community and institutional settings, as opposed to predictions based upon unreliable criteria, in terms of the reliability of such links to risk. In addition, if youth with mental health and cognitive disabilities are properly supported in the community, then the number being criminalized would decrease significantly and the number of those being jailed and assessed as dangerous to the public would be very small.