FASD & the Justice System
R. v. Harper, [2009] Y.J. No. 14; 2009 YKTC 17 and  R. v. Harper, 65 C.R. (6th) 373; 2009 YKTC 18.

FACTS: Sentencing of a 35 year old Aboriginal accused with FASD who pleaded guilty to sexual interference and breach of recognizance. The complainant, a 13-year-old girl was medically examined for sexual assault after she had been drinking and passed out. A DNA profile of semen found in the underwear of the complainant matched the accused. The accused had no recollection of contact with the complainant and was unable to account for the presence of his semen in her underwear. The breach of recognizance charge arose on a later date when the accused was found to be under the influence of alcohol while under a recognizance not to consume alcohol.

The accused had severe underlying brain dysfunction, was intellectually deficient and did not have the capacity to live independently. He also had significant problems with sexual inappropriateness, although he was not considered a sexual predator, but rather his problems arose from his impulsiveness and immaturity. The accused had an extensive criminal record of over 50 convictions which included 18 breaches of court orders, one indecent act and four convictions for sexual assault. The accused had been in custody a total of six months, most of which was spent in segregation after the accused was assaulted. The accused's younger brother offered to house and supervise the accused.

HELD: Accused sentenced to time served and two years probation. Although the offence was serious, the accused had a severe level of cognitive impairment associated with his FASD which affected his ability to appreciate the harm caused by his actions. Given the accused's severe cognitive deficits, general deterrence, specific deterrence and denunciation were not relevant sentencing considerations, but protection of society and rehabilitation were the primary focus. FASD has specifically been recognized as a factor that affects an offender's degree of responsibility so as to reduce the severity of a just sentence. Indeed, it may well be the "main criminogenic factor" in an offender's life.

The accused's intoxication at the time of the offence, his guilty plea and his victimization while in pre-trial detention were mitigating factors.

CanLII link: http://www.canlii.org/en/yk/yktc/doc/2009/2009yktc17/2009yktc17.html

And http://www.canlii.org/en/yk/yktc/doc/2009/2009yktc18/2009yktc18.html