FASD & the Justice System
R. v. Dayfoot, [2007] O.J. No. 2869; 2007 ONCJ 332

FACTS: The accused pleaded guilty to robbery, uttering threats, breach of recognizance, and failure to appear in court. He presently came before the court for sentencing. The accused underwent extensive testing for FAS, and it was raised as a mitigating factor. Mr. Dayfoot suffers ARND with confirmed maternal alcohol exposure. Dayfoot was adopted and is believed to be of an Aboriginal background. The judge considered subsection 718.2(e) and Gladue.

HELD: The court considered that it was the threat, not an act of violence, which qualified the incident as a robbery, and the co-accused had exerted a negative influence on the accused. To punish behaviour which resulted from a clinically-recognized disability ran contrary to the principles of criminal law, certainly where treatment was available. He was not likely to endanger the community.

The accused was Aboriginal, and his relevant circumstances includes both his diagnosis of ARND and his separation from his heritage. Accordingly, the fit sentence of this court will take restorative justice into account on a community level. To restore Mr. Dayfoot as a member of his community, and to restore to the community its ability to deal with its own members, this court must to the degree possible ensure that the sentence is administered within the appropriate First Nations community.

The accused was given an 18-month sentence to be served in the community, taking into account four and one-half months served pre-trial, concurrent on all charges. He would be subject to house arrest, and required to take treatment.

CanLII Link: http://www.canlii.org/en/on/oncj/doc/2007/2007oncj332/2007oncj332.html