Fetal Alcohol Spectrum Disorder
Fetal Alcohol Spectrum Disorder (FASD) is a non-hereditary, permanent and often non-visible disability. A diagnosis is based on a history of prenatal alcohol exposure in conjunction with growth retardation, distinctive facial features, and central nervous system dysfunction including decreased cognitive abilities.1 2 Although a person can be greatly affected cognitively without having the physical features related to FASD, the absence of such features often prevents these individuals from receiving the social support they require.3 Moore and Green state that prevalence rates in the United States are estimated at 0.5 to 3 per 1,000 live births in the general population.4 Using United States estimates of incidence and Statistics Canada live births and birth rates, Chartrand and Forbes-Chilibeck calculated that in Canada 3,177 infants with FASD have been born since July 1, 1997.5
The invisibility of FASD is one of the major causes of the difficulties that sufferers experience in the justice system.6 This contention was reinforced by Trueman J. in R. v. Gray.7 People with a form of FASD also tend to find ways to mask their cognitive disability. This makes it increasingly difficult for legal professionals to identify the disorder.8 Legal professionals are not trained to recognize the symptoms of FASD. However, in R. v. Steeves, an accused was diagnosed with a form of FASD after a police officer prompted his family to seek an assessment. This illustrates the importance of legal professionals gaining a greater awareness of FASD.
It is difficult for people with FASD to learn from their mistakes, they often act impulsively, and dom't take responsibility for their actions.9 Contact with the justice system only creates more difficulties for these individuals.10
There is a disproportionately high rate of FASD reported in the Aboriginal population. Intergenerational effects of colonization increase the risk factors for FASD among Aboriginal people. According to Chartrand and Forbes-Chilibeck, of the 40 cases examined for their research, 86% of the offenders who had FASD, were Aboriginal.11 It is difficult to diagnose any forms of FASD because women may feel unjustly criticized if they admit to alcohol use during pregnancy.12
FASD and the Justice System
Courts have been incredibly inconsistent in the way people diagnosed with a form of FASD are treated. FASD has been considered and mentioned in many courts, but FASD is not often given substantial weight. There is a lack of knowledge among the legal profession about the elements and effects of FASD. Recently, there has been a small increase in the number of courts that have made an effort to gain an understanding of this disorder. The importance of FASD is illustrated by the fact that some members of the judiciary have made very significant efforts to gain greater knowledge on this issue and apply this knowledge in their decisions. For instance, Turpel-Lafond in R. v. L.E.K. ordered a specialized treatment plan for LEK. Unfortunately, the court of appeal set the order aside citing that it was out of the jurisdiction of the courts to make such an order.13 Since the applications of FASD to judicial reasoning are fairly new, there are still barriers for judges who make an effort to aid these individuals. When constructing sentences, there are minimal services and programs available to adequately treat and rehabilitate people diagnosed with forms of FASD.14
The lack of knowledge of FASD is not completely unfounded since it is a fairly new disorder. In Joe v. Y.T. (1986), a BC court made a ruling that may have affected the progress of this issue. The Judge ruled that courts should not give weight to whether a person has FASD. It was not until 1992 in R. v. Baptiste, that the Judge stated that society has been "incredibly remiss in failing to understand the damage done by drinking during pregnancy."15FASD as a factor relating to the offence. Beyond these jurisdictions, there seems to be little recognition of the disorder.16 However, British Columbia, Saskatchewan, and Yukon seem to be more progressive in that some members of judiciary recognize
Although there is a general lack of awareness of FASD, there are some courts that have recognized the symptoms or the assertions of the accused. This recognition has resulted in assessment orders to obtain a proper diagnosis of FASD. R. v. Williams, R. v. Gray, and R. v. Harris are all cases where the courts have made determinations on assessment. Gray held that an assessment order could be made based on the Criminal Code as opposed to the Charter. However, the court made some comments that indicate that if an offender with FASD is treated like other offenders, it may be a violation of their s.15 Charter rights.
There is a high risk of false confessions with people affected by FASD. Legal professionals have to be aware that a confession by someone who is cognitively disabled should be scrutinized at a different level. Whether there is truth to the confession, police often do not examine suspect in relation to his/her disability, especially if their confession fits the theory of the offence. In State v. Christoph, the accused had been diagnosed with FAS and confessed to abusing her sister. The case would never have gone to court if they interviewed the sister and found that the information was untrue.17
The lack of awareness of issues related to FASD is the major cause of false confessions.18 In State v. Brett, the appellant had been diagnosed with a form of FASD. The court held that counsel has a responsibility for ensuring that relevant mental health problems are assessed and incorporated in the defence of the accused.19
It has been acknowledged that denunciation and deterrence are not the best approaches to sentencing people affected by FASD. Three examples include R. v. Mitchell, R. v. E.L.J, and R. v. Sinclair (Dissent). The most effective approach is one that focuses on rehabilitation and prevention.20FASD, despite that; this is the most effective way to prevent further criminal behaviour.21 The safety of the public would be greater served if high risk offenders with FASD were offered treatment and support as opposed to simply keeping the public "safe" for the length of the sentence. Often, FASD may be considered a mitigating factor, but it does not steer the underlying approach of the sentence. R. v. J. and R. v. J.H. are 2 unusual cases FASD was actually considered to be an aggravating factor.22 As the case in R. v. Suarak and R. v. McLeod, some courts may acknowledge FASD, but they do not place any weight on the disability in the decision. Since this disability is often invisible, courts are often unaware of the issues related to FASD.23 With growing knowledge and awareness of FASD, the judiciary is in the beginning stages of altering their approach to sentencing people with FASD. There is very minimal specialized programming available for people with
Although there is a new wave of aware and concerned judges, often they are constrained by the lack of programming for FASD. In R. v. L.E.K., a judge's order for specialized rehabilitation was set aside as it was outside the jurisdiction of the court.24 R. v. Gray, R. v. C.J.M, and R .v. Williams are other illustrations of the lack of resources available for offenders with FASD.25
There is an obvious need for change in the judicial system. Where there are high rates of recidivism, alternative approaches to sentencing become increasingly important to ensure the health of society in general. Some courts have moved toward a more treatment-oriented approach to sentencing. Initial evaluations illustrate that this approach is effective.
Fitness to Stand Trial
There is a contention that people with FASD have decreased or fully lack autonomy, rationality, responsibility, voluntariness and culpability. In turn, there are concerns about individuals with FASD being exposed to penal consequences via custodial sentences. There may be two ways in which this can affect legal arguments in the beginning stages of the legal process. First, one can be delegated unfit to stand trial. This would mean that the person does not have the capacity to understand the legal process to aid in his or her own defence. There is also a mechanism of defence for those who are found guilty of an offence. They may be excused from their offence if they are found to be not criminally responsible for their actions. However, there is no formula for a suitable course of action for those unfit or not responsible.26 27
An offender's fitness to stand trial is an important consideration. In some cases, the offender's ability to instruct counsel and understand the implications of guilt are so impaired that he is unfit to stand trial due to mental disorder. In R. v. T. J., TJ was diagnosed with FAS. The court held that he was unfit to stand trial due to mental disorder.28 He would have had to remain in the criminal justice system for an indeterminate period of time. People who are UST are treated more harshly than other offenders. This was a violation of his Charter rights. TJ was held to no longer be a danger to society, so he was granted a stay of proceedings.29 Other examples of where the court considered UST included R. v. W.D and R. v. W.A.L.D.
Not Criminally Responsible
If someone does not have the capacity to understand the court process he is held to be UST. When an offender pleads guilty he may be found not criminally responsible for his illegal actions. The person claiming NCR has the burden of proving that the offender has a mental disorder according to s. 16(1) of the Criminal Code. Legal counsel has to prove that the offender did not know his actions were wrong.30 This is a question of law rather then a medical determination. FASD is a mental disorder according to the criminal code.31
In R. v. R.F. and R. v. S.L.P., neither offender was able to prove that he did not understand that his actions were wrong.32 The accused in D.J. v. Yukon was found to be NCR. However, there was no suitable place for him in the mental health or criminal justice systems. But the court did hold that he would not benefit from being in prison.33 This illustrates the need for the legal profession to consider the mental health of the offender and advocate for a proper treatment plan.
Victims with FASD
People with disabilities tend to be "easy targets" for victimization. Individuals with FASD may not understand the gravity of what is happening to them so they are less likely to report crimes. These victims are much more vulnerable. The vulnerability of the victim should be considered an aggravating factor and the offender should be punished more harshly.34
Witnesses with FASD
Both children and adults can be induced to issue false accounts of events. In R. v. R. (A), the complainant was diagnosed with FAS. She accused her adopted father of sexual misconduct. Her story was often inconsistent. A psychological assessment indicated that she was easily confused and susceptible to the influence of others. This situation is not isolated; it would be the case for many people with FAS. The accused was found not guilty.35
R. v. Gladue
Since a number of offenders with FASD are also Aboriginal, the decision in Gladue will interact a great deal with legal issues related to FASD. It is difficult to balance the affected interests of the offender. Chartrand contends that the reason for the disproportionately high number of FASD cases involving an Aboriginal offender is due to the effects of colonization. This too is the core of Gladue. These must be balanced equally but they are often separated and considered in conjunction.36
1 Larry N. Chartrand & Ella M. Forbes-Chilibeck, "The Sentencing of Offenders with Fetal Alcohol Syndrome" (2003) 11 Health L. J. 35 - 70 at pg 37-38.
2 Timothy E. Moore & Melvyn Green, "Fetal Alcohol Spectrum Disorder (FASD): A Need for Closer Examination by the Criminal Justice System" 19 C.R. (6th) 99; 19 CR-ART 99 at pg 1.
3 Supra note 1 pg 38.
4 Supra note 2 pg 1.
5 Supra note 1 pg 36-37.
6 Supra note 1 pg 39; Supra note 2 pg 2.
7 Supra note 1 pg 39
8 Supra note 2 pg 2.
9 Supra note 2 pg 3.
10 Supra note 2 pg 4.
11 Supra note 1 pg 38-41.
12 Supra note 1 pg 41.
13 Supra note 1 pg 44.
14 Supra note 1 pg 36; Fred J. Boland, Ph. D., Rebecca Burrill, Michelle Duwyn and Jennifer Karp.Fetal Alcohol Syndrome: Implications for Correctional Service. (Correctional Service Canada July 1998); Caron Byrne, "The Criminalization of Fetal Alcohol Syndrome." (revised 2002). Online: http://fasdconnections.ca/id84.htm p.3
15 Supra note 1; Saskatchewan, Final Report of the Commission on First Nations and Métis Peoples and Justice Reform. Vol. 2. Chapter 9.
16 Supra note 1 pg 41.
17 Supra note 2 pg 7.
18 Supra note 2 pg 7.
19 Supra note 2 pg 8.
20 Supra note 1 pg 45.
21 Supra note 2 Pg 8.
22 Supra note 1.
23 Supra note 2 pg 8.
24 Supra note 2 pg 8.
25 Supra note 2 pg 9.
26 H. Rae Mitten, Barriers to Implementing Holistic, Community-Based Treatment For Offenders with Fetal Alcohol Conditions (L.L.M Thesis, University of Saskatchewan, 2003) [unpublished] at pg 22.
27 Teresa Kellerman, "Competency and Capacity" 2002. Online:http://www.faslink.org/
28 Supra note 26; Schneider, Richard D. "Mental Disorder in the Courts: Absolute Discharge for Unfits?" (2000), 21 For the Defence 36. QL; Supra note 1.
29 Supra note 26.
30 Supra note 26 pg 85-86.
31 Supra note 26 pg 88.
32 Supra note 26pg 89.
33 Supra note 26pg 94.
34 Kathryn Ann Kelly, "The Victimization of Individuals with Fetal Alcohol Syndrome/Fetal Alcohol Effects" Online:http://www.faslink.org/Kelly_TASH.htm
35 Supra note 2 pg 5-6.
36 Supra note 26.