FASD & Criminal Justice: Recent Items

It has been a busy couple of months in the area of FASD & Criminal Justice. Court decisions have included a successful appeal in W. Australia (LCM -v- The State Of Western Australia [2016] WASCA 164) in which the case asked “whether new evidence of FASD suffered by offender meant a different sentence should have been imposed.” It was decided that this evidence was critical to sentencing and the appeal resulted in the sentence being converted from 10 to 7 years with probation possible after serving 1/2 of the sentence. We will discuss the decision and the situation that surrounded this case in more detail in the coming weeks in a separate blog. Until then, a short news piece on the case and WA Chief Justice Wayne Martin’s strong words about the failings of the justice system. 

Today, in this post, I will focus on a recent FASD & Justice item in Canada.

In October 2016 the Federal, Provincial and Territorial (FPT) Ministers met to discuss Justice and Public Safety. FASD was on their agenda. Vice-Chief Kim Beaudin of the Congress of Aboriginal Peoples (CAP) addressed the Ministers and included the 12 priorities CAP is focusing on included Mental Health and FASD in the Justice System.  Clearly, FASD is on the minds of leadership across Canada. It should be noted that while the issues associated to FASD are not limited to the justice system, when individuals with FASD are engaged with the criminal justice system it raises a cluster of concerns including but not limited to: over-representation of this particular disability, the need for more effective community supports, the role/capacity of the courts to address disabilities, the role of alternative justice practices, fitness and culpability.

A Final Report was released by the ministers and the link is included here.  The Final Report is a concise document that offers an overview of: the history and scope of the Steering Committee on FASD and Access to Justice; background on FASD as a disability; considerations about current proposed legislative reform associated to FASD and non-legislative recommendations. It concluded with 11 recommendations:

Recommendation 1: FPT Ministers direct officials to evaluate the desirability and the potential impact of clarifying the power of the court in the Criminal Code to authorize assessments of the mental condition of the offender for the purpose of determining a fit and appropriate sentence.

Recommendation 2: Jurisdictions and officials should continue to examine ways to improve access to justice for all people with neurocognitive disabilities, mental health issues, including FASD.

Recommendation 3: Any considerations of criminal law or policy reforms should not focus exclusively on FASD, but should include consideration of all people with mental health conditions or other neurocognitive disabilities.

Recommendation 4: Jurisdictions are encouraged to explore programs and services that support the prevention of persons with FASD from coming into initial contact with the criminal justice system, and those that reduce re-offending of people with FASD who are already in the criminal justice system.

Recommendation 5: Federal/Provincial/Territorial Ministers responsible for Justice and Public Safety consider FASD and other neurocognitive disabilities in the course of the criminal justice system review.

Recommendation 6: Jurisdictions consider undertaking studies to determine the prevalence of FASD and other neurocognitive disabilities in correctional populations.

Recommendation 7: Jurisdictions consider undertaking studies to identify and validate FASD screening tools for use in an adult offender population.

Recommendation 8: Jurisdictions consider evaluating the effectiveness of restorative justice approaches for people with FASD.

Recommendation 9: Where appropriate, jurisdictions should explore the capacity of forensic mental health services to screen for FASD and provide information to the court relating to a person’s neurocognitive abilities.

Recommendation 10: Jurisdictions are encouraged to explore opportunities for interdepartmental and interagency information sharing and collaboration on FASD and other neurocognitive disabilities.

Recommendation 11: All levels of government should encourage the development and delivery of education and training programs on FASD and other neurocognitive disabilities for criminal justice system professionals.

The Final Report from the Federal-Provincial-Territorial Ministers indicates there is concern about access to justice for people with FASD but the ministers do not believe that amendments to the criminal code that favor one particular disability is the path the address this issue. It should be noted that this report was released just prior to the First Reading of “Bill C-235 – an Act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder)” [sic]. This Bill was introduced in early November and is the latest in a long line of proposed legislation that seeks to address FASD through judicial reform. (Note: we will post a separate blog in the coming week focused on this Bill).

It is important to see so many discussions taking place on the issues associated to FASD and Justice. However, the question remains: what can we do at the systemic level to address the serious issues facing individuals with FASD who encounter the justice system?Appeals like the one in W. Australia are important (especially in the lives of individuals directly impacted by inappropriate sentencing) and can help pave the way to judicial reforms but we are still addressing FASD through piecemeal practices. Why? Because the issues associate to FASD and Justice are complex and far-reaching. They require nuanced analysis that sees beyond the courtroom. Moreover, much of the discussion about FASD and Justice is limited to “offender-focused” topics. The issues associated to FASD and Justice demands that we place more attention also on the challenges facing witness and victims which includes the criminal justice system but also civil and family law courts as well.

In the coming weeks we will post blogs that looks more closely at the Appeal decision out of W. Australia and the Proposed Amendment to the Criminal Code in Canada. We will also announce the details about TWO exciting events being hosted in W. Canada in early 2017—both focus on FASD in the Justice System.




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