Subsection 718.2(e) of the Criminal Code provides for restraint in the use of imprisonment for Aboriginal offenders and has facilitated the use of conditional sentencing, often involving restorative justice principles:
718.2 A court that imposes a sentence shall also take into consideration the following principles:
(e) all available sanctions or options other than imprisonment that are reasonable in the circumstances should be considered for all offenders, with particular attention to the circumstances of Aboriginal offenders. http://www.canlii.org/en/ca/laws/stat/rsc-1985-c-c-46/latest/rsc-1985-c-c-46.html
“Gladue” considerations arise from R. v. Gladue, the first Supreme Court of Canada case considering the application of this section. The Court concluded that Aboriginal offenders are as a result of unique systemic and background factors, more adversely affected by incarceration and less likely to be rehabilitated by it, because imprisonment is often culturally inappropriate and facilitates further discrimination towards them (para 68). http://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html
The Court further stated that the unbalanced ratio of imprisonment for Aboriginal offenders flows from a number of sources including "low incomes, high unemployment, lack of opportunities and options, lack or irrelevance of education, substance abuse, loneliness and community fragmentation." (para 67) It also arises from bias and discrimination against Aboriginal people within the justice system.
The circumstances of Aboriginal people differ from the broader population because many Aboriginal people are victims of systemic and direct discrimination, so many suffer the legacy of dislocation, and are affected by poor social and economic conditions (para 68). http://www.canlii.org/en/ca/scc/doc/1999/1999canlii679/1999canlii679.html
For more information on the Gladue decision, please visit Aboriginal Legal Services of Toronto's Gladue pages at http://www.aboriginallegal.ca/gladue.php
There may be resources available to support Gladue processes. For example, in Ontario Legal Aid Ontario has changed its policy and now offers training to counsel on the use of Gladue. There is also a helpful plain language brochure on Gladue prepared by Community Legal Education Ontario on the practical implications of the Gladue decision and stressing that the decision applies to all Aboriginal people: http://www.cleonet.ca/instance.php?instance_id=4371
While FASD is not mentioned in Gladue, it is a Gladue factor now recognized by the courts in sentencing Aboriginal offenders where it has been diagnosed. For Gladue sentencing cases involving FASD go here: http://fasdjustice.on.ca/r-v-gladue/
For Aboriginal offenders, the intergenerational effects of colonization are a unique risk factor for the development of FASD. http://www.law.ualberta.ca/centres/hli/userfiles/Chartrand.pdf
It may be argued that the high prevalence of alcohol abuse within some Aboriginal communities can be linked to the historical process of colonization, and that FASD provides a significant contact point with historical disadvantage. http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_yj6-rr03_jj6/p5b.html
The Youth Criminal Justice Act contains a subsection similar to subsection 718.2(e), though it should be noted that the Act contains a number of provisions which militate against the incarceration of youth. http://www.canlii.org/en/ca/laws/stat/sc-2002-c-1/latest/sc-2002-c-1.html
For cases on FASD as a Gladue factor in youth sentencing go to: http://www.fasdjustice.ca/r-v-gladue/.
While specialized assessments are very difficult to obtain in the adult sentencing context, there is more flexibility with respect to court orders when the offender is a youth. http://www.interprofessional.ubc.ca/Brochures/AdultswFASD2010_Plenary_Roach_afterppt.pdf
Regardless, in order for FASD to be a factor considered in the sentencing of Aboriginal youth or adults, awareness and diagnosis is first necessary. http://fasdjustice.ca/aboriginal-peoples-and-fasd/what-to-do.html