Adequate screening processes for FASD are not universally available within the general population let alone within the justice or corrections systems; in particular, culturally appropriate diagnostic tools for Aboriginal people are required.
While youth court judges have ordered psychiatric assessments under section 34 of the Youth Criminal Justice Act where accused were suspected of having FASD, the ability to order FASD diagnosis for adults before the court has proven extremely difficult. There has been litigation in the adult courts over the issue of whether or not the courts may order special assessments for FASD where the province must incur expenses. http://section15.gc.ca/eng/pi/rs/rep-rap/2003/rr03_yj6-rr03_jj6/rr03_yj6.pdf
Lack of diagnosis of FASD means judges may be hindered in taking it into consideration as a sentencing factor for Aboriginal people as mandated by subsection 718.2(e) of the Criminal Code and Gladue.
The lack of diagnosis of FASD among Aboriginal offenders in the criminal justice system is indicated by the volume of what might be termed the “might have” cases – Gladue sentencing cases where judges observe that the offender “might have” FASD.
However, as much as there is a lack of access to FASD diagnostics within the justice and correctional systems, certain cultural factors may also result in incorrect diagnosis of FASD.
Socio-economic factors of poverty, low education levels, unstable home life and learned behaviour may contribute to FASD being diagnosed in Aboriginal people. Multifaceted issues of colonization, social marginalization, multiple foster homes, and culturally inappropriate testing tools may make FASD diagnoses more common in Aboriginal peoples. https://www.mcgill.ca/files/tcpsych/Report10.pdf#page=97
As noted by Dr. Tait, negative stereotyping involving the "drunken pregnant woman and the violent fetal alcohol affected youth, both of whom are believed to be typically Aboriginal and unwilling or unable to govern their actions in ways that are morally acceptable” can lead to premature diagnosis of FASD and the stigmatization of Aboriginal peoples. https://www.mcgill.ca/files/tcpsych/Report10.pdf#page=97
Secondary disabilities of FASD(those which arise after birth and presumably could be ameliorated through interventions) including mental health problems, disrupted school experiences, trouble with the law, inappropriate sexual behaviour, and substance abuse problems have all been documented as occurring disproportionately among the general Aboriginal population of Canada, potentially facilitating premature FASD diagnoses. https://www.mcgill.ca/files/tcpsych/Report10.pdf#page=9
Ultimately, there is a need for greater diagnostic resources for FASD affected individuals coming into contact with the justice system. For Aboriginal peoples, this translates into a need for culturally sensitive approaches, diagnostic tools and teams. https://www.mcgill.ca/files/tcpsych/Report10.pdf#page=97
While it is crucial that Aboriginal peoples are not prematurely or over diagnosed as those with FASD due to discriminatory stereotypes or the use of culturally insensitive tools, it is equally important that FASD related questions are asked, leading to a proper FASD diagnosis and consideration within the justice system.