FASD & the Justice System

Some courts are imposing conditional or alternative sentences where the defence can make convincing submissions that focus on rehabilitative and supportive programming for the accused with FASD. See for example, R. v. CJM 2000 BCPC 199, [2001] CCS. No. 13900 (sub nom R. v. CJM.) [2000] B.c.J. No. 2714.  and R. Ramalho, 2004 BCCA 617, (sub.nom. R. V JMR) [2004] BCJ. No. 2531, 191 CCC (3rd) 486).

Aboriginal communities (urban and reserve) are asking for less confrontational and more rehabilitative and culturally appropriate healing approaches.  One example is the circle, in which participants sit facing each other. The objective is to create a sense of equality and understanding of common concerns, and share responsibility for finding an answer.  Everyone’s input is considered. The process helps the community see beyond the offender, and to explore the causes of the crime.   

Another example are restorative processes that may go under different names such as youth justice committees, family and community conferencing, and community justice and so onSimilar to circles, the objective is to bring victims, offenders and/or other interested parties together to resolve issues and deals with harm resulting from crime.  These processes are in keeping with sentencing principles of both the Youth Criminal Justice Act and the Criminal Code of Canada.

Whatever the approach, alternative sentences and other solutions will serve communities and people with FASD best when we acknowledge the complexity of the disability and take a problem-solving approach to the administration of justice. 

“Accused persons who are affected by Fetal Alcohol Spectrum Disorder (FASD) present the most challenging case–in–point for a modern access to criminal justice approach. The cognitive functioning problems that may be the main cause of criminal offending admit to no simple and definitive solution. The problem–solving approach may not mean for accused with FASD gaining control over the precipitating condition. It does mean taking into account the manifest FASD symptoms and the other problems that characterize the individual situation and applying the same basic problem–solving framework common to the main strains of the modern access to criminal justice approach, as in drug courts, mental health courts, community wellness courts and holistic criminal defence.”  (Currie, A. 2009).