The Canadian Bar Association
Criminal

FASD should be considered at all stages of criminal justice system

Fetal alcohol spectrum disorder (FASD) is a significant issue in the criminal justice system — but instead of unnecessary blanket amendments that focus on the sentencing stage, reforms should aim for better treatment and policies throughout the legal process, Toronto criminal and civil litigator Laurelly Dale writes in The Lawyers Weekly.

As Dale, principal of Dale Legal Firm, writes, FASD encompasses all disabilities caused by prenatal exposure to alcohol, with five diagnoses falling under the umbrella term, including fetal alcohol syndrome (FAS).

“Those suffering from FASD experience cognitive impairment that impacts their ability to make decisions, solve problems and often endure addiction issues that aggravate mental illness. In 2015 Health Canada confirmed that the incidence of FAS was greater than Down syndrome and that each year approximately 1 per cent of babies are born with FASD,” she says.

Dale explains that research conducted last year at the Whitehorse Correctional Centre found that approximately 17.5 per cent of participants had FASD. Shortly after the release of the study’s preliminary results, a Yukon MP submitted private member’s Bill C-235, aimed at amending the sentencing provisions in the Criminal Code, requiring the judge to consider FASD as a mitigating factor.

The bill was defeated in December, says Dale, who adds that these resources would have been put to better use in achieving the point of the study.

“The point of the study was: 1) to obtain a more current estimate of those with FASD within the Yukon criminal justice system; and 2) to determine how best to meet their needs with the hope that this will inform future programs and policy. The results confirm the hypothesis.

"Key findings suggest that they will be used to lobby for better treatment and policies for those with FASD at all stages of the criminal justice system, rather than supporting blanket amendments at the sentencing stage,” she writes.

Although Bill C-235 sought to include FASD as a mitigating circumstance in s. 718 of the Criminal Code, Dale says it's already considered at the sentencing stage.

“Two of the fundamental purposes of sentencing in s. 718 are (b) specific deterrence and (d), the need to rehabilitate offenders. Additionally, under the Youth Criminal Justice Act (YCJA), courts can sentence serious violent offenders suffering from mental disorders to a specialized custodial sentence known as intensive rehabilitative custody and supervision order.

"Recently the Manitoba Court of Appeal in R. v. Friesen [2016] M.J. No. 142, allowed the accused appeal and reduced his sentence in a manslaughter conviction from six to four years, considering his FAS diagnosis a mitigating factor,” says Dale.

As the proposed legislation drew attention to the research, Dale says the next step will be to take advantage of this interest and redirect it. Data from the study should be used to assist those with FASD by increasing resources to obtain a diagnosis and treatment, and in supplying tools to prevent recidivism, she says.

“The criminal justice system is often referred to as Canada’s largest mental health care provider. Police training, mental health resources (such as programs under the Canadian Mental Health Association), prenatal and parenting resources, mental health courts and diversion programs, are some examples of resources that would assist those with FASD at all stages in the criminal justice system,” writes Dale.

“S. 718 of the code, the YCJA and case law create an avenue for FASD to be considered a mitigating factor at sentencing. Anyone working within the criminal justice system can see through Bill C-235. Out of 500 clients I would estimate 35 per cent are suspected of having FASD; however, securing a diagnosis is rare.

“The study confirms overrepresentation of those with FASD in the criminal justice system. Findings should be utilized as a catalyst to support further research at the national level and to promote realistic changes to meet the needs of those with FASD in the criminal justice system,” she adds.

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