FASD & the Justice System

Aboriginal peoples are a rapidly growing population, one with a much greater proportion of children and youth than the non-Aboriginal population, but one that bears the legacy of historical disadvantage and exclusion.

The Aboriginal population is younger than the Canadian population at large – the average age of the Aboriginal population was 32.1 years in 2016, as opposed to the average age of the Canadian population (40.9 years). As of the 2016 Census, 48% of Aboriginal people were less than 25 years old (31% for non-Aboriginals). And around 1/3 of First Nations and Inuit people were 14 years of age or younger in 2016, as well as 22% of Metis people. http://www.statcan.gc.ca/daily-quotidien/171025/dq171025a-eng.htm

FASD is relevant to Aboriginal youth both as those affected by the disorder, and as being part of a youth demographic that is considered to be at risk of alcohol use during pregnancy.

Aboriginal youth are considered to be at a two-to-six times higher risk for every alcohol-related problem compared to other young people, depending on the part of Canada. Substance use is a leading factor in teen pregnancy among Aboriginal youth. https://sencanada.ca/content/sen/committee/372/abor/rep/repfinoct03part2-e.htm

However, similar to the adult population, general statistics on the prevalence of FASD among Aboriginal and non-Aboriginal children and youth are not available.

A recent review from 2009 deduces that the evidence remains inconclusive whether there is a greater prevalence of FASD among Aboriginal children and peoples.  http://fasdjustice.ca/media/Aboriginal_Peoples.pdf

However, limited studies have indicated that Aboriginal youth, particularly those in the justice system, are disproportionately impacted by FASD.  A 2006 study by the Department of Justice on those appearing before (mental disorder) Review Boards, found that

“…when Aboriginal status and age are combined, the issue becomes even clearer – 73.7% of Aboriginal youth under the purview of Review Boards had a confirmed or suspected diagnosis of FASD. It should be cautioned, however, that the number of Aboriginal youth in the sample was very small.” http://examenequitesalariale.gc.ca/eng/rp-pr/csj-sjc/jsp-sjp/rr06_1/p35.html?wbdisable=true

FASD is one factor that a court will take into account in sentencing an Aboriginal young offender under section 38(2) (d) of the Youth Criminal Justice Act, where it has been diagnosed.

Dr. Mark Totten has posited that FASD is the third pathway into violent gang involvement for Aboriginal youth – reflecting the impact of resulting brain and mental health disorders and the accompanying developmental impairments and emotional vulnerability. https://reginapolice.ca/gang/publications/Totten%20APRC%20Gang%20Gender%20paper%20June%2012%202010%20.pdf

However, it has also been noted that it may not always be in a youth’s interest to be identified, at sentencing, as having FASD. It can be perceived that a youth who has FASD has untreatable deficits and lacks ordinary restraint, and that consequently they represent an ongoing risk to the public. http://www.justice.gc.ca/eng/rp-pr/cj-jp/yj-jj/rr03_yj6-rr03_jj6/rr03_yj6.pdf

Ultimately, the growing Aboriginal youth population presents important FASD related challenges for the healthcare and justice system, among others.