Some individuals with FASD are in repeated and sustained contact with the justice system, with the result that a DO or LTO designation is ultimately applied for.
Courts have recognized that low intellectual functioning can be an impediment to rehabilitation. In cases where an offender has not been exposed to programming delivered at a level suitable for their comprehension, courts have been willing to consider that more appropriate interventions could lead to eventual control in the community, despite the previous failures (R. v. J.N.J., 2004 BCSC 1007, R. v. Peters, 2005 BCSC 97, R. v. Mumford,  O.J. No. 4267 (S.C.), R. v. Jeurissen, 2014 BCSC 1718, R. v. Keepness, 2013 SKQB 441). Similarly, if there are untried community supports that could be used to stabilize behavior, it would be inappropriate to imprison someone indeterminately (R. v. Steppan, 2010 MBPC 9, R. v. Fontaine, 2014 SKPC 165).
However, where a court concludes that treatment or programming is unlikely to be successful and a very high level of supervision is required for effective community control, the effect is essentially the creation of a jail in the community and the appropriate sentence is indeterminate custody (R. v. Otto, 2004 SKQB 418, R. v. R.D.Z., 2012 BCPC 61).
In the Saskatchewan case of R. v. Bunn, 2011 SKQB 21, a funded FASD assessment was ordered along with the expert assessment contemplated by s. 752.1.
Below is a list of cases: