As noted by Justice Melvyn Green of the Ontario Court of Justice, “judges only know (or are permitted to know) what counsel, by way of evidence and submissions, are prepared to tell them.” http://fasdjustice.ca/media/JudgeGreenSpeech.pdf
Therefore, it is critically important that counsel have the ability to recognize the signs of FASD. For tips on recognizing the possibility of FASD go to: http://fasdjustice.ca/recognizing-and-addressing-fasd-in-the-justice-system/
For tips on accommodating FASD see: http://fasdjustice.ca/what-works/
If you are representing an Aboriginal person who you suspect may have FASD, you should consider issues relating to Gladue sentencing, bail conditions, fitness to stand trial, criminal responsibility and suggestibility, and other possible impediments to appropriate representation and fair treatment under the law.
There are a number of ways for defence counsel to introduce Gladue factors to the court:
- Obtain your client’s personal history prior to going to court;
- Ask the court for a Gladue report /pre-sentencing report to explore these factors in detail;
- Involve an Aboriginal courtworker or Aboriginal organization in preparation of a Gladue report or any sentencing submissions. They have extensive knowledge of Aboriginal cultural issues and are familiar with resources available in the community for Aboriginal people. Aboriginal courtworkers can be contacted at the court where available;
- Contact Aboriginal restorative justice organizations or local Band offices to find out what community support is available for the FASD affected offender. This information can be submitted either directly to the court or as part of the report; and
- Get an independent report if needed, in addition to any ordered by the Court. http://www.justiceeducation.ca/research/aboriginal-sentencing/factors-considered
The court will use this information to determine the appropriate sentence given the circumstances of the case and the available community resources and support.
Court orders for assessment and professional assistance for the FASD affected person prior to or in place of incarceration may help keep the person from re-offending once support systems are in place.
Diagnosis will help justice professionals represent, prosecute and judge the affected individual in a manner consistent with his or her ability to control behavior, inform counsel, comprehend the judicial process and understand the consequences of their actions.
However, while there is some flexibility in obtaining specialized assessments by court order for youth, these are difficult to obtain in the adult sentencing context. http://www.interprofessional.ubc.ca/Brochures/AdultswFASD2010_Plenary_Roach_afterppt.pdf
Until judges have greater sanction to facilitate FASD-sensitive dispositions, courts can still play an important role in increasing awareness of FASD and supporting development of effective strategies. Judges can ask advocates and professionals: “Did you consider FASD?” This may influence them to become more educated about FASD and to consider possible interventions. http://fasdjustice.ca/media/Malbin53_63.pdf