FASD & the Justice System

R. v. Joamie, 2013 NUCJ 19 (Kilpatrick J.)

Guilty plea by Inuit offender for sexually assaulting passed-out victim – sentence would usually emphasize denunciation, general/specific deterrence – birth family violent and abusive, given up for adoption when 1 month old – FASD diagnosis and low learning capacity – Gladue factors affect application of proportionality principle, of particular concern is the weight associated with FASD diagnosis – two stage analysis required when crafting fit sentence for FASD-affected offender: first is to assess moral blameworthiness in light of cognitive deficits, require medical/psychiatric evidence to link deficits to offence; second stage balances need to protect the public with feasibility of reintegrating the offender back into community through alternative sanctions – if community programs would better achieve long term protection of society, should consider non-custodial sanction but where no community based programming appropriate to needs and level of risk there may be no practical basis to avoid or otherwise reduce custodial sentence – evidential burden on offender seeking to rely on FASD diagnosis in mitigation of sentence – need assessment by qualified medical or forensic specialist which should relate specific cognitive deficits to his or her criminal responsibility and also consider risk of recidivism and resources required to reduce risk – incumbent on defence to identify resources that could act as alternative to custody – Territory lacks diagnostic services, no programs or housing to assist citizens with FASD – defence counsel’s advocacy role does not end with determination of liability but requires fearless and tireless advocacy for public programs and services to address basic needs of clientele – FASD diagnosis without detail, no indication of who made diagnosis, on what basis, what deficits, how contributed to offence – without evidence court must apply principles of denunciation and deterrence – in any event jail is required for this offence – 12 months custody.