FASD & the Justice System
R. v. MacKenzie, [2007] B.C.J. No. 508; 2007 BCPC 0109
(also under assessment)

FACTS: Sentencing hearing of MacKenzie. MacKenzie broke and entered into an apartment occupied by two women. He was confronted by the occupants and ran out. MacKenzie took $20 and was arrested after a short chase. At the time of the offence he lived at a halfway house while he served a federal sentence. Upon MacKenzie's arrest his parole was revoked and he received a sentence of 75 days consecutive for unlawfully being at large. MacKenzie was 35 years old. He had a long record that consisted of over 35 convictions mainly for break and enter, attempt break and enter and related property and drug offences. Crown sought a six-year jail sentence. MacKenzie claimed that because he was an Aboriginal person with FAS, the appropriate sentence was time served or an 18-month conditional sentence.

Although the accused could not be diagnosed with respect to FAS, he had many of the characteristics associated with this disorder, namely, impulsivity, manipulative behaviour, lying, self-destructive criminal activity and limited ability to learn from past mistakes. He had an organic cognitive impairment.

HELD: MacKenzie received a conditional sentence of two years less a day followed by a e-year probation order. Sentence was based on the time that MacKenzie spent in custody, his performance on bail and the lack of new substantive charges. Court also considered MacKenzie's Aboriginal background and the fact that he had an organic impairment and functional disabilities and deficits similar to persons who were identified as having FAS. MacKenzie posed a low risk to re-offend violently and had a low-to-moderate risk of recidivism. He was remorseful and motivated and had insight into his drug and alcohol abuse and his criminal activities.

CanLII Link: http://www.canlii.org/en/bc/bcpc/doc/2007/2007bcpc109/2007bcpc109.html