Fetal Alcohol Spectrum Disorder

• Author: Jonathan Rudin
• Pages: 257-286

257

Fetal Alcohol

Spectrum

Disorder

7

I. Introduction ............................................. 

II. What Is FASD? ........................................... 

A. Diagnosis .......................................... 

B. Impacts of FASD .................................... 

C. Prevalence ......................................... 

III. FASD as a Gladue Factor ................................... 

IV. FASD in the Courts ....................................... 

A. Sentencing ......................................... 

B. Dangerous Oenders ................................ 

C. Confessions ........................................ 

V. FASD-Aected Individuals in Court ........................... 

A. Making Submissions Regarding an FASD-Aected

Indigenous Person .................................. 

B. Talking to a Client Aected by FASD .................... 

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.

258 Indigenous People and the Criminal Justice System

I. Introduction

Writing a chapter on Fetal Alcohol Spectrum Disorder—or FASD as it is commonly

referred to—in a book about Indigenous people and the justice system presents a

challenge. On the one hand, it is critical to recognize that it is a myth that FASD

mostly aects Indigenous people. On the other hand, Indigenous people are dramatic-

ally overrepresented among those identified with FASD in the criminal justice system.

If one looked at reported cases, without some understanding and context, one would

conclude that, for some reason, FASD involves only Indigenous people, and one

would be wrong.

This chapter will try to unpack these and other issues because it is important

that lawyers and judges understand the issues relating to FASD generally and those

relating to FASD and Indigenous people specifically. In many cases, the person who

comes before the court will not have an FASD diagnosis. There may be a belief, a sus-

picion, a hunch, that the person is aected by FASD but no actual proof in the form

of a diagnosis. The reality is that many people who come before the court may well be

aected by FASD but, through no fault of their own, are unable to obtain a diagnosis

to confirm that fact, and this issue too will be examined in this chapter.

In his book Thinking, Fast and Slow,1 Daniel Kahneman talked about the phenom-

enon of what he called “what you see is all there is” (or WYSIATI).2 Lawyers and

judges routinely draw conclusions about individuals based on the very incomplete

information they have before them. This is an almost inevitable function of the sys-

tem. Sentencings often happen in a matter of minutes. There is little possibility in

that short period of time for all the important and relevant information regarding the

individual to be before the judge when they are required to decide on sentence.

When the individual before the court is Indigenous and aected by FASD, the

problems are magnified. Not only will the court be operating with limited information

about the individual, although the availability of a Gladue Report can significantly

mitigate that concern,3 but there may not be much knowledge about FASD itself. This

is not surprising because lawyers are not doctors or psychologists—and even doctors

and psychologists often do not always understand FASD. At the same time, assump-

tions by those in the courtroom about what it means for someone to be aected by

FASD are often wrong and if unchallenged can lead to serious misunderstandings that

can have significant impacts on the individual before the court.

1 New York: Farrar, Straus and Giroux, 2011.

2 Ibid at 88-89.

3 For a discussion of Gladue Reports and FASD-aected Indigenous oenders, see Jane Dick-

son & Michelle Stewart, “Risk, Rights and Deservedness: Navigating the Tensions of Gladue,

Fetal Alcohol Spectrum Disorder and Settler Colonialism in Canadian Courts” (2022) 40:1

Behav Sci & L 14.

Copyright © 2022 Emond Montgomery Publications. All Rights Reserved.