Experiences in the Canadian criminal justice system for individuals with fetal alcohol spectrum disorders: double jeopardy?

Author:Pei, Jacqueline

Fetal alcohol spectrum disorder (FASD) is a lifelong disability that results from prenatal alcohol exposure (PAE) (Government of Alberta 2013). In Canada, approximately one out of every one-hundred babies is born with an FASD (Public Health Agency of Canada 2012). FASD remains one of the most common developmental disabilities in Canada. With an estimated annual cost of $21,642 per person and a total annual cost of $5.3 billion to the country (John Howard Society of Ontario 2010), FASD places a heavy economic burden on the healthcare, education, social service, and criminal justice systems (Rasmussen, Andrew, Zwaigenbaum, and Tough 2008). Given its prevalence and the significant financial burden it imposes, it is crucial to develop more effective services and functional systems to best support individuals with an FASD. The goals of the present study were to (1) identify factors that place individuals with an FASD at risk of entering the criminal justice system, and (2) provide suggestions as to how to best support individuals in the criminal justice system with an FASD and reduce the chance of these individuals entering the system initially.

Fetal alcohol spectrum disorder

FASD is an umbrella term used to describe a range of physical, cognitive, and behavioural disabilities resulting from PAE (Chudley, Corny, Cook, Loock, Rosales, LeBlanc, and the Public Health Agency 2005) and includes the specific diagnoses of fetal alcohol syndrome (FAS), partial FAS (pFAS), alcohol-related neurodevelopmental disorder (ARND), alcohol-related birth defects (ARBD), and all other conditions that describe the effects of PAE (Aase, Jones, and Clarren 1995; Streissguth and O'Malley 2000). An FAS diagnosis is assigned when an individual displays all three "classic" characteristics of FASD, including abnormal facial features (e.g., flattened upper lip), growth retardation (e.g., lower height to weight ratio), and central nervous system abnormalities (e.g., smaller head size), as a result of PAE. A diagnosis of pFAS, ARND, or ARBD is assigned when an individual displays some of the "classic" characteristics of FASD (Alberta Medical Association 2003). These diagnoses describe the physical abnormalities of this disorder but do not imply severity. Therefore, although individuals with FAS display all three "classic" characteristics, their symptoms are not necessarily more severe than those of individuals with the other three diagnoses (Clarke and Gibbard 2003).

PAE can lead to permanent brain and central nervous system damage, including impaired mental functioning, poor executive functioning, memory problems, impaired judgement, an inability to regulate behaviour or control impulses, and difficulty understanding the consequences of one's actions (Streissguth, Barr, Kogan, and Bookstein 1997). Given these neurobiological and cognitive deficits, individuals with an FASD often have difficulty adapting to societal expectations and are more likely to engage in high-risk behaviours (Rasmussen et al. 2008).

In addition to the impact of brain injury due to PAE, individuals with an FASD are also frequently exposed to adverse environments, such as childhood maltreatment, exposure to maladaptive social behaviours, poverty, homelessness, and a lack of support (Coggins, Timler, and Olswang 2007). This reality has been described as "double jeopardy" (Olson, Oti, Gelo, and Beck 2009). Consequently, individuals with an FASD are at a higher risk for several adverse outcomes, including alcohol and drug addictions, mental health issues, conflict with the law, inappropriate sexual behaviour, disrupted school experience, and socially inappropriate behaviours (Streissguth et al. 1997).

FASD and the criminal justice system

In Canada, the national prevalence rate of FASD in the criminal justice system is currently not available. Burd, Selfridge, Klug, and Juelson (2003) found that, in 11 provinces and territories, only 0.087 of 1,000 offenders reported a diagnosis of Fetal Alcohol Syndrome (FAS). In the Yukon Territory, the prevalence rate was somewhat higher than this average, with 2.6% of offenders reporting an FAS diagnosis (Burd et al. 2003). However, it has been suggested that these rates underestimate the true number of individuals across the entire FASD spectrum, due to there being limited screening and diagnostic resources available in the criminal justice system (Popova, Lange, Bekmuradov, Mihic, and Rehm 2011). This underestimation is also apparent in data on the British Columbia juvenile criminal justice system. To illustrate, Fast, Conry, and Loock (1999) reported that only 1% of 287 young offenders received a diagnosis of FAS, whereas 23% received a diagnosis of FAE. Other barriers, such as missing documentation, lack of evidence of PAE, and a historical lack of well-established diagnostic criteria for FASD also hinder the process of determining prevalence rates (Popova et al. 2011). Despite these challenges, professionals working within the justice system recognize that this is a population requiring closer examination.

In 2010, the Canadian Bar Association (CBA) (2010) passed a resolution stating that the current justice-system approach to working with offenders with an FASD is ineffective, due to its inconsistent and punitive nature. According to the CBA, the criminal justice system is based on the normative assumption that individuals act in a voluntary manner, make informed choices about committing crime, and have the ability to learn from their own behaviour and the behaviour of others. These normative assumptions are not always valid for offenders with an FASD. Thus, present-day criminal justice interventions may not be effective (Roach and Bailey 2009). To address this issue, the CBA recently proposed legislative reform measures to better accommodate offenders with an FASD, including (1) establishing a legal definition of FASD, (2) allowing judges to order assessments for individuals who are suspected of having FASD, (3) identifying FASD as a mitigating factor in sentencing, (4) setting up an external support plan, and (5) providing accommodations within correctional services for inmates with an FASD.

While awareness of the prevalence and impact of FASD within the criminal justice system is growing, progress remains slow, with significant gaps persisting. Justice Canada has recognized that this complex disorder renders individuals with an FASD more vulnerable and creates potential barriers to service access in the criminal justice system (Government of Alberta 2007). Consequently, Justice Canada and the Youth Justice Policy Section have been attempting to (1) reduce the risk for individuals with FASD to become involved with the criminal justice system (National Crime Prevention Centre), (2) provide appropriate care, assessment, and intervention to offenders with FASD within the correctional system (Correctional Service of Canada), and (3) provide FASD training to Royal Canadian Mounted Police (RCMP) members or other service providers to increase awareness of FASD and develop community networks and support for individuals with this disorder (Royal Canadian Mounted Police) (Government of Alberta 2007). Nonetheless, understanding of how to meet these identified goals remains limited in both practice and research settings. This information is critical for providing a fair and effective response to individuals with an FASD with respect to both their offences and their rights and needs.


The present study is part of a larger program of research that aims to gain a deeper understanding of the experiences within the criminal justice system of offenders with an FASD. Although individuals with an FASD are often involved with the criminal justice system, there is little research focusing on the impact of this disability on offenders (Verbrugge 2003).

This study focuses specifically on identifying the risk factors for offenders with an FASD. According to the National Crime Prevention Centre (2012), understanding known risk factors within identified populations can facilitate the provision of effective and cost-efficient ways to prevent and reduce the chances of individuals entering or reentering the criminal justice system. In this way, the goal of the present study was to further understand the factors that (1) put offenders with an FASD at risk of entering the system and (2) prevent these individuals from leaving the system. This information can be used to inform best practices as well as strategies to reduce ongoing involvement with the criminal justice system.


Semi-structured interviews were conducted to capture the voices of two different participant groups; namely, individuals with an FASD and professionals who work with clients with an FASD. Current diagnoses used under the umbrella of FASD to describe the different characteristics of FASD are: (1) Fetal Alcohol Syndrome (FAS), (2) partial FAS (pFAS), (3) Alcohol-Related Neuro-developmental Disorder (ARND), and (4) Alcohol-Related Birth Defects (ARBD) (Aase et al. 1995). Individuals with any of these diagnoses were included in this research.

Thematic coding was used to analyse this data to gain an understanding of the meanings that participants assign to their own experiences within the criminal justice system (individuals with an FASD) or their experiences of interacting with individuals with an FASD in the criminal justice system (professionals) (Creswell 2012). The University of Alberta Human Research Ethics Board approved this study, and all participants provided informed written consent at the time of the interviews. Simplified language was used to provide consent-related information to participants with an FASD.


A total of 21 individuals participated in this study, including 9 individuals with an FASD (5 males, 4 females; mean age of 34.1 years, age range of 24-59 years) and 12 professionals working in the criminal justice system (3 males, 9 females). The inclusion...

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