When considering non-custodial dispositions for offenders with FASD, the court should consider the offender’s unique needs and disabilities in order to craft terms of probation or conditional sentence orders that can be understood and abided by. People with FASD also require comprehensive and consistent supports to provide them with ongoing advice, direction, and structure, as well as to advocate on their behalf.  Without that support offenders with FASD are unlikely to understand and meet terms of community supervision or demonstrate progress towards rehabilitation.

The more time that passes between the offence and sentencing, the greater the risk for an accused person with FASD to fail to appear for sentencing, as they may forget to attend the more time passes.  As well, if an accused is on numerous or strict bail conditions while waiting for sentencing, there is a high potential for breaches and a greater likelihood that he/she will receive a custodial sentence.

Under s.718.1 of the Criminal Code, a sentence must be proportionate to the gravity of the offence and the degree of responsibility of the offender. Following is some information that may help you prepare a sentencing submission that appropriately reflects the impact of FASD on your client’s actions.

Adaptive Behaviour and Executive Functioning

Adaptive functioning includes the age-appropriate behaviours necessary for people to live independently and to function safely and appropriately in daily life.  Maladaptive behaviours among people with FASD may include antisocial, rebellious, self-abusive or sexually inappropriate behaviours, which could increase the likelihood that a person with FASD will experience secondary disabilities. The secondary disabilities of FASD include:

  • poor social relationships
  • inability to live independently
  • poor judgment in work, school and community situations
  • not learning from punishment and/or consequences
  • frequent re-offending
  • mental illness.   

Executive functions are a collection of brain processes that are responsible for planning, abstract thinking, rule acquisition, initiating appropriate actions and inhibiting inappropriate actions, and selecting relevant sensory information. A person with FASD may have poor executive functioning skills.  For example:

  • disorganization
  • limited ability to think beyond the present
  • difficulty getting and keeping steady employment
  • susceptibility to delinquent lifestyle
  • trouble planning ahead
  • difficulty delaying gratification or controlling impulses
  • the inability to generalize.

Weighing responsibility in a case involving an accused with FASD starts with recognizing the effect of FASD on adaptive and executive functioning. “One judge has considered FASD to be capable of taking away an individual’s ability ‘to act within the norms expected by society.’”

ss. 718.2(e) of the Criminal Code and R. v. Gladue

Diversion and Specialized Courts

Diversion refers to diverting an accused person out of the criminal justice system by having them complete a diversion program rather than go through the regular court process. Criminal charges are typically dropped when an accused successfully completes a diversion program. There are also specialized courts in which the accused pleads guilty but then takes a period of time to complete programming or other requirements and ultimately receives a lower sentence than they otherwise would.

From the point of arrest onward, crown and defence may want to consider the possibility of diverting an accused with FASD to the community or to a program where he or she can obtain appropriate supports and interventions.

Commentators and researchers are also finding a growing interest in problem-solving courts and therapeutic jurisprudence among criminal justice professionals.  (Chartrand, L. 2003; Cox, L. 2008).

For example, mentally ill offenders have increasingly had their cases referred to other programs that offer rehabilitation services instead of incarceration. Problem-solving courts are specialized tribunals established to deal with specific problems, often involving individuals who need social, mental health or substance abuse treatment services. One example is the Toronto Mental Health Court, where solutions may include linkages to mental health, housing, employment, or other services that may ameliorate the conditions that caused the criminal behavior.”

Another example is the Community Council Program in Toronto which diverts Aboriginal offenders from the criminal justice system and brings them before their own community.  Commonly diverted offences include fail to appear or comply, obstructing police or justice, property offences, victimless crimes and offences against the person.  “The program focuses on the offender rather than the offence.  The idea is that the community knows best how to reach Indigenous offenders, and help avoid the revolving door of the dominant justice system, which takes most people from the street to jail and back again.

Whether diversion is appropriate and in the public interest should always be considered by both crown and defense. Diversion may not always be considered possible (for example, where the charges are very serious), however it is important to consider.

The success of diversion for offenders with FASD will depend on:

  • Community understanding and support for alternative processes
  • Detailed, easy to understand and highly supervised agreements. 

Conditional and Alternative Sentences

Some courts have imposed conditional or alternative sentences where the defence can make convincing submissions that focus on rehabilitative and supportive programming for the accused with FASD.

Indigenous 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.   

Other examples include restorative processes that may go under different names such as youth justice committees, family and community conferencing, and community justice and so on.  Similar 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 in a more holistic manner, recognizing that more people are affected than just the named victims.  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.”