FASD & the Justice System
R. v. Aube, [2009] S.J. No. 255; 324 Sask. R. 303

FACTS: Appeal by the Crown from the sentences imposed on three accused following their guilty pleas to trafficking in cocaine for the benefit of a criminal organization, conspiracy to traffic in cocaine, and trafficking in cocaine. Each of the three accused worked as a street-level cocaine dealer for a criminal gang. All were relatively young. Two had no prior convictions and the third had two minor offences on his record. All had strong community support and had performed well under the strict conditions of their probations, especially by establishing a strong employment record. All three expressed remorse. The sentencing judge imposed conditional sentences of one year, to be served in the community. He did not impose a consecutive sentence for the offence involving participation in the criminal organization.

One accused, Mr. Kaye was Aboriginal but raised in a foster home due to his mother's drug dependency. He has been diagnosed as suffering from FAE. As a youth, he had used both marihuana and cocaine.

HELD: Appeal allowed. The sentence imposed was set aside. Concurrent sentences of 18 months' imprisonment were substituted for the trafficking and conspiracy counts and one-year consecutive sentences were imposed for the trafficking for the benefit of a criminal organization counts. According to the court, the judge had properly considered the mitigating factors present (such as the FASD diagnosis of one of the co-accused), but failed to give the appropriate weight to the important sentencing factors of denunciation and general deterrence. The one-year sentence to be served in the community was deemed demonstrably unfit. The judge also erred in failing to impose a consecutive sentence for the offence involving the participation of the accused in a criminal organization.

CanLII link: http://www.canlii.org/en/sk/skca/doc/2009/2009skca53/2009skca53.html