FASD & the Justice System

Though it may be tempting to assume that a person who needs close supervision and structure would derive some sort of therapeutic benefit from incarceration, jail offers no opportunity for rehabilitation and may make matters worse. Unlike cases involving unaffected offenders, “jail may be completely inappropriate for FAS/ARND offenders.” (Chartrand, L and Forbes-Chilibeck, E.M. 2003).

As noted by Judge Cunliffe Barnes of the BC Provincial Court: “I’ve sent people to jail and watched that person come out more angry, more violent, a bigger threat to the safety of other persons, and go back to jail, come out and back again…. And if there is a sensible way to avoid a jail sentence, then I think that courts should take the time to explore that possibility.” (Conry and Fast, 2000).

Section 718.2(e) of the Criminal Code “instructs judges to look at all reasonable alternatives to jail for all offenders and to pay particular attention to the circumstances of Aboriginal offenders.”  (Roach 2009; Mitten 2004.)  R. v. Gladue (1999) calls for full information about the circumstances that bring Aboriginal offenders before the court and sentencing options that may be particularly appropriate because of the offender’s Aboriginal connections. Gladue is the key decision on the applicability of s. 718.2(e). For more information on the Gladue decision, please visit Aboriginal Legal Services of Toronto's Gladue pages at http://www.aboriginallegal.ca/gladue.php