FASD & the Justice System
R. v. Brown, [2009] O.J. No. 979; 2009 CanLII 9760

FACTS: Sentencing of the defendant, who had pled guilty to aggravated assault. The defendant had been causing a disturbance at a subway station when, entirely unprovoked, he attempted to push a stranger onto the subway tracks. The victim landed within a foot of the platform edge and the defendant was about to push him again but was tackled by transit police.

The defendant was a 32-year-old Aboriginal who had been apprehended from his parents' home when young because they were alcoholics and he was born with FAS. According to the Gladue Report, Brown's mother is a survivor of relocation practices. She and his father were caught up in the social upheaval brought about by relocation. They turned to alcohol when the focus of their lives, which was likely tied to living on the land, was taken away. Both of Brown's biological parents regularly abused alcohol.

The defendant's adoptive parents were extremely abusive. The defendant was an alcoholic and testified that he was so intoxicated at the time of the offence he had no memory of it.

Mr. Brown has endured a number of mental and physical challenges: FASD, alcohol related neurodevelopmental disorder, alcohol addiction and attention deficit hyperactivity disorder. He exhibits significant learning difficulties, short stature and psychological problems. He is impulsive and lacks empathy for others. However, he is intellectually intact and with firm and consistent support, Mr. Brown can apparently function fairly well. The defendant was remorseful and had no memory of the attack. The defendant's counsellor noted that the defendant became volatile when he drank but used alcohol as an excuse for poor behaviour.

The Crown sought a prison sentence of two years less one day. The defendant sought a conditional sentence to allow him access to alcohol treatment and counselling.

HELD: The defendant was sentenced to 18 months in prison, followed by three years probation with treatment and counselling as ordered by his probation officer. If possible, the defendant was to serve his prison sentence at a facility with alcohol treatment programs. If the defendant were not an Aboriginal offender with an abusive childhood and an alcohol problem he would be sentenced to at least two years in prison. Despite the mitigating factors, a prison sentence was still required as this was a terrifying and unprovoked attack and if the defendant had succeeded in pushing the victim onto the tracks, the victim quite possibly would have been killed. The shorter than normal prison sentence was appropriate because of the mitigating factors and to allow the defendant to access alcohol treatment and counselling sooner.

CanLII Link: http://www.canlii.org/en/on/onsc/doc/2009/2009canlii9760/2009canlii9760.html