FASD and the Justice System

The Over-Incarceration of People with FASD

The late Hon. Harold Johnson, observed in his time served as a Crown Prosectuor:

“…[O]ver-reliance upon incarceration is especially apparent when we sentence people suffering from FASD or other mental health problems. We in the administration of law have not found a humane way of dealing with people who have mental health issues. When we sentence them, we don’t take into account their special needs.”[1] 

The Saskatchewan FASD Network reported:

“In Saskatchewan, it is believed that 1 in 100 people may be affected by FASD. However, it is difficult to know just how many families are affected by FASD as a lot of individuals go undiagnosed their entire lifetime. The signs and symptoms of FASD often go unnoticed and are masked by other factors in the individual’s life or are attributed to other causes. This is why FASD is often called an invisible disability. Individuals with invisible disabilities in many cases do not receive the support and accommodation they need to succeed in life. Many people with FASD have an IQ in the normal range, but the various cognitive processes have been altered. With appropriate supports and changes to their environment, individuals can be productive and successful members of society.”[2]

Michelle Stewart (Saskatchewan FASD Network) and Jane Dickson state:

“Individuals with FASD are understood to present a particular challenge to the courts given in that these individuals are understood to be prone to risky or impulsive behaviour, have challenges in keeping appointments, struggle with employment and trouble making prosocial friends, and people with FASD are also at greater risk for homelessness (Gagnier et al., 2011). Each of these factors can impact bail conditions on primary (showing up for court dates) and secondary (risk to reoffend) grounds (Criminal Code, s. 515, s. 525). Similarly, if the courts understand that the disability presents a static or ongoing risk, this can impact how FASD is understood in sentencing. Indeed, FASD has been seen by the courts as an exacerbating rather than mitigating factor in both youth and adult sentencing because the individual ‘who has FASD has untreatable deficits and lacks ordinary restraint, and that consequently he/she represents an ongoing risk to the public’ (Verbrugge, 2003, p. 22).”[3]

Sentencing

 

This summary on Sentencing people with FASD was originally published by FASD Justice Canada, in their Summary of Legal Literature on FASD: 

“It has been acknowledged that denunciation and deterrence are not the best approaches to sentencing people affected by FASD. Three examples include R. v. Mitchell, R. v. E.L.J, and R. v. Sinclair (Dissent). The most effective approach is one that focuses on rehabilitation and prevention. FASD, despite that; this is the most effective way to prevent further criminal behaviour. The safety of the public would be greater served if high risk offenders with FASD were offered treatment and support as opposed to simply keeping the public "safe" for the length of the sentence. Often, FASD may be considered a mitigating factor, but it does not steer the underlying approach of the sentence. R. v. J. and R. v. J.H. are 2 unusual cases FASD was actually considered to be an aggravating factor. As the case in R. v. Suarak and R. v. McLeod, some courts may acknowledge FASD, but they do not place any weight on the disability in the decision. Since this disability is often invisible, courts are often unaware of the issues related to FASD. With growing knowledge and awareness of FASD, the judiciary is in the beginning stages of altering their approach to sentencing people with FASD. There is very minimal specialized programming available for people with FASD.

Although there is a new wave of aware and concerned judges, often they are constrained by the lack of programming for FASD. In R. v. L.E.K., a judge's order for specialized rehabilitation was set aside as it was outside the jurisdiction of the court. R. v. Gray, R. v. C.J.M, and R .v. Williams are other illustrations of the lack of resources available for offenders with FASD.

There is an obvious need for change in the judicial system. Where there are high rates of recidivism, alternative approaches to sentencing become increasingly important to ensure the health of society in general. Some courts have moved toward a more treatment-oriented approach to sentencing. Initial evaluations illustrate that this approach is effective.”[4]

 

FASD and the Justice System: Resource Guide

 

Resources and Information on FASD, the FASD Network, and Literature

 

 

 

 

 

 

 

 

 

 

 

  • Dickson, Jane, and Stewart, Michelle. “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts.” Behavioral Sciences & the Law, 40(1): 14-30. https://doi.org/10.1002/bsl.2536

 

Footnotes

 

[1] Harold Johnson, Peace and Good Order: The Case for Indigenous Justice in Canada, 102.

[2] FASD Network, “Fetal Alcohol Spectrum Disorder: A Guide to Awareness and Understanding,” Saskatchewan FASD Network, 2017, 4. https://www.saskfasdnetwork.ca/_files/ugd/6eb9fe_65ba32ef098d4ae485ce2ed595b66e09.pdf

[3] Jane Dickson, and Michelle Stewart, “Risk, rights and deservedness: Navigating the tensions of Gladue, Fetal Alcohol Spectrum Disorder and settler colonialism in Canadian courts,” Behavioral Sciences & the Law, 40(1), (2022): 22. https://doi.org/10.1002/bsl.2536

[4] FASD Justice Canada. "Summary of Legal Literature." Accessed January, 2023. http://fasdjustice.ca/en-ca/case-law/summary-of-legal-literature.html [references omitted]