Fetal Alcohol Spectrum Disorder (FASD) in the Criminal Justice System
As one of its 94 calls to action, the Truth and Reconciliation Commission on Indian Residential Schools called on “the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with FASD (Fetal Alcohol Spectrum Disorder),” including ensuring proper diagnosis of FASD so that its effects can be considered in sentencing. This condition – caused by permanent brain damage resulting from alcohol exposure in the womb – often causes behaviour that makes it disproportionately likely that a person living with FASD will come into contact with the law. While some of these effects are easy to spot, others are much less readily diagnosable, and can include issues with learning, attention, problem solving or behaviour, including:
- Impaired mental functioning
- Poor executive functioning
- Memory problems
- Impaired judgement
- Inability to control impulse behaviour
- Impaired ability to understand the consequences of one’s actions
- Impaired ability to intentionally modify behaviour control
As a recent BC government report observes, “Persons affected by FASD may not understand social situations, and their behaviours may be misinterpreted as willfully problematic, rather than a symptom of an underlying brain-based condition.” In their 2011 paper “Fetal Alcohol Spectrum Disorder as an Access to Justice Issue”, the Canadian Bar Association acknowledged that individuals with FASD are often unnecessarily criminalized. A 2013 meta-analysis of existing research-based evidence of FASD in a variety of settings found that estimated prevalence rates in correctional facilities ranged from 9.8% to 23.3%.
Section 718.1 of the Criminal Code states that “a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender.” Section 718.2 adds that “a sentence should be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender.” The BCCLA has always been a staunch supporter of these principles throughout our work, particularly in our ongoing opposition to mandatory minimum sentencing. We also support the Gladue principles, which direct sentencing judges to consider the unique systemic or background factors relevant when sentencing an Aboriginal person (see, for example, our submissions in the Ladue case). We believe that it is crucial for sentencing judges to engage in an individualized assessment of all relevant factors and circumstances of the person standing before them when deciding what a just sentence will look like in any given case. But FASD is routinely under-diagnosed, and thus under-considered by judges in sentencing decisions. And in the rare cases when a judge is aware that an individual lives with FASD, mandatory minimums may get in the way of effectively taking it into account.
The Canadian Bar Association paper cited above draws attention to the fact that currently, courts do not have legislative authority to order assessments for adults they believe may have a cognitive deficit unless they are considered “unfit to stand trial” or “not criminally responsible by reason of a mental disorder.” The part of the Criminal Code dealing with individuals who have ‘mental disorders,’ the CBA notes, is generally not applicable to, or appropriate for, individuals with FASD: while mental illnesses are conditions that may change with treatment or over time, FASD involves permanent brain damage, which the CBA suggests requires a different type of consideration. The CBA calls for “the creation of legislative authority to allow courts to obtain an accurate assessment of an individual’s neurocognitive abilities.” In our view, court-ordered medical assessments in general should be used sparingly, as they impose significantly on the right to free and informed consent to medical care. However, we agree with the principle that it is necessary to find more effective ways for an accused person’s FASD status to be considered by the courts. This means there must be both widespread awareness of the importance of FASD diagnosis and resources available for the necessary neurocognitive assessments.
ALTERNATE MEASURES AND DIVERSION PROGRAMS
While acknowledging that the “realities of the disability of FASD must be balanced with the need for public safety”, they also call for the development of alternate measures and diversion programs that address the issues that bring individuals with FASD into contact with the law, and that “hold individuals accountable consistent with their degree of responsibility.” They also call for increased education for criminal justice professionals working in all parts of the system – police, probation officers, judges, prosecution and defense counsel – about FASD and its implications for service provision. They recommend prosecution policy directives be changed to require the consideration of FASD. And they also emphasize the need for early diagnosis, so that a person’s experience of living with FASD is taken into account throughout their involvement with the justice system, including limiting unnecessary bail or probation conditions to accommodate limited cognitive abilities.
In March of 2014, Conservative MP Ryan Leef introduced a private member’s bill in the House of Commons to amend the Criminal Code, adding a definition of FASD and establishing a procedure for assessing people within the criminal justice system for the condition. It would have required the court to consider FASD as a mitigating factor in sentencing. The bill was defeated in November 2014.
MANDATORY MINIMUM SENTENCING MUST BE ELIMINATED
The CBA suggests an “exemption valve” for individuals living with FASD be added to the Criminal Code for sentences requiring a mandatory minimum sentence. Similarly, the TRC recommendations call for the enactment of statutory exemptions from mandatory minimum sentences for those affected by FASD, along with more resources for diagnosis, support and education. We believe that rather than carving out exceptions for those with FASD, mandatory minimum sentencing must be eliminated altogether. We believe that judges must be in a position to craft sentences that are proportionate given the circumstances of a particular offence and offender, whatever those circumstances may be, without the limitations imposed by mandatory minimum sentencing. Along with additional resources for diagnosis and education, this would go a long way toward ensuring that those with FASD have access to justice.
 The BCCLA’s submission to the Commission can be accessed here: https://bccla.org/2013/09/the-journey-of-reconciliation-issuing-our-statement-of-reconciliation-at-canadas-trc/