The sentencing of aboriginal accused with FASD: a search for different pathways.

AuthorMilward, David
PositionIntroduction through Public Safety, p. 1025-1056 - Fetal alcohol spectrum disorder - Canada - Law on the Edge


The goal of this article is an exploration of the very significant problem of Aboriginal persons with Fetal Alcohol Spectrum Disorder (FASD) who wind up in the criminal justice system. The disorder has been defined as follows: "FASD is an umbrella term describing the range of effects that can occur in an individual whose mother drank alcohol during pregnancy. These effects may include physical, mental, behavioural and learning disabilities with lifelong implications." (1) Studies have found attention deficits, impulsivity, and hyperactivity in as much as 60-75% of FASD subjects. (2) FASD can certainly have negative repercussions generally for its sufferers. It is not difficult to anticipate that FASD symptoms can translate into increased risk of criminal behaviour, a point that will be substantiated in the course of this paper. And indeed the first part of the paper will substantiate links between colonialism, FASD, and Aboriginal over-representation.

The question of what to do with FASD accused generally has been a difficult question for sentencing judges. Previous legal scholarship by Larry Chartrand and Kent Roach has noted that Canadian judges have been very inconsistent in deciding whether to use incarceration or non-custodial sentences like probation or conditional sentences for offenders with FASD. (3) The article engages in an analysis of all reported cases where an Aboriginal person diagnosed with FASD has been sentenced before Canadian courts, many of which came after Kent Roach's article. The cases reveal that Canadian judges are becoming more and more aware of the difficulties involved with applying standard sentencing rationales to persons with FASD, Aboriginal persons with FASD included. Deterrence is problematic in that many FASD persons are simply incapable of engaging in the risk and consequence analysis that deterrence theory presumes people will engage in. Retribution is problematic in that it assumes an ability to appreciate the moral content of certain behaviours that FASD persons again may not have. (4) Incapacitation to protect the public may perhaps be the only sentencing rationale that can be invoked to justify incarcerating an FASD person that is relatively free of conceptual hang-ups. Even so, that does not necessarily relieve us of our need to explore more constructive avenues in the sentencing of FASD persons.

The paper will then argue that the sentencing of FASD Aboriginal persons needs to de-emphasize deterrence and retribution and move towards needs-based sentencing. The paper will concede that incapacitation may be the only consideration that may in individual cases demand incarceration for the sake of protecting the public when non-custodial options may not be sufficient to manage an accused's future behaviour. Even so, the need for such an imperative can be minimized. There is evidence, albeit limited, that non-custodial sentences that provide improved guidance and structure in an FASD accused's living situation, and include elements of Aboriginal culture and spirituality, can achieve remarkable successes in preventing future criminal recidivism.

It is to the credit of Canadian judges that they are becoming more supportive of needs-based sentencing instead of relying on deterrence or retribution to justify incarcerating FASD persons. There is also increasing recognition by judges that an Aboriginal accused having FASD is relevant to whether the accused should be given a non-custodial sentence pursuant to the Supreme Court of Canada's (Supreme Court) judgment in R v Gladue. (5)

Unfortunately, Canadian governments have not provided the resources and services to match the increased judicial willingness to use alternatives to incarceration. There are significant gaps in available services. And even those services that do exist contend with significant issues of insufficient funding and staffing. The paper will thus argue that Canadian governments need to provide the resources and services so that the judges, who are now well aware and willing, have the options they need to facilitate needs-based sentencing. This argument may demand a significant commitment of resources in the short term, but there is a real imperative to pursue this avenue instead of routinely incarcerating FASD persons as a matter of justice reinvestment.

The paper will then argue that such a direction can be taken further, by investing in preventative initiatives. There are two distinct stages where preventative initiatives can intervene. One stage is before Aboriginal children are born in Aboriginal communities, with the initiatives designed to reduce maternal alcohol consumption. There is significant evidence that such initiatives can generate success. The other stage is to intervene after Aboriginal children are born with FASD, but before they get entangled with the criminal justice system. There is, unfortunately, a lack of evidence to validate the efficacy of interventions at this stage although that can probably be attributed to the profound gap in available services. The paper begins by setting out the linkages between colonialism, FASD, and Aboriginal over incarceration.


Aboriginal over-incarceration has been an ongoing problem for decades. A 2009 statistical analysis reveals that Aboriginal persons have consistently comprised 17-19% of all adult admissions to Canadian federal penitentiaries for the past decade, even though Aboriginal peoples represent only 3% of the Canadian population. (6) The statistics are even more appalling when it comes to admission to provincial jails. In 2007-08, Aboriginal persons comprised 21% of all admissions to provincial jails in Newfoundland and British Columbia, 35% in Alberta, 69% in Manitoba, 76% in the Yukon, 81% in Saskatchewan, and 86% in the Northwest Territories. (7)

A fact of Canadian history is that its Aboriginal peoples were subjected to harmful processes of colonization, which included military conquest, (8) the acquisition of Aboriginal land bases through treaties, (9) and policies of assimilation that attempted to force Aboriginal peoples to abandon their own cultures in favour of Euro-Canadian lifestyles by criminalizing cultural activities like the potlatch. (10) An especially harmful part of the history of colonization was forcing Aboriginal children to attend residential schools. (11) Many were physically and sexually abused, and thus would themselves pass intergenerational trauma on to their descendants. (12) Many were forced to abandon their languages and culture. Many left not having acquired the skills or education to gain meaningful employment, thus contributing, along with economic colonialism and ongoing workplace discrimination, to the impoverishment of Aboriginal communities. (13) It is frequently argued that colonialism, and all the social devastation it has wrought on Aboriginal communities, is the key explanation for Aboriginal over-incarcercation. (14) Justice LeBel of the Supreme Court states: "The overwhelming message emanating from the various reports and commissions on Aboriginal peoples' involvement in the criminal justice system is that current levels of criminality are intimately tied to the legacy of colonialism". (15)

There is a basis to suggest that FASD is at once a reflection of the social damage inflicted by colonialism, and also itself a significant contributor to Aboriginal over-incarceration. Substance abuse is a serious problem in many Aboriginal communities. Statistical surveys have indicated that 74-77% of Aboriginal people feel that substance abuse is a problem in their communities. 33% feel that substance abuse is a problem in their homes, or a problem for a family member. 25% admit to personally having a drinking problem. (16) Aboriginal peoples are also hospitalized for substance abuse problems at rates that far exceed non-Aboriginal persons. (17) 27% of Aboriginal adults admitted to use of cannabis, while the rates were 48% for Aboriginal youth aged 15 to 17, and 15% for Aboriginal youth aged 12 to 14. (18)

There is the likelihood that alcohol abuse in Aboriginal communities also translates into FASD becoming a real problem in Aboriginal communities, which itself leads to increased likelihood of crime. A 2004 study that involved a sample of 418 patients diagnosed with Fetal Alcohol Spectrum Disorder found that 60% of the sample had come into contact with criminal justice systems as suspects or as charged accuseds. (19) A recent Canadian study found that individuals with FASD were much more likely to be involved in the criminal justice system in comparison to those who do not have FASD. The percentages were almost 90% for FASD subjects compared to 40+% for non-FASD subjects when it came to having any youth court history, almost 60% compared to less than 5% when it came to 15 or more youth convictions, and 33% compared to approximately 10% for 15 or more adult convictions. (20) There are presently no current and comprehensive empirical studies that set out the prevalence of FASD among Aboriginal peoples as compared to non-Aboriginal peoples across Canada. There are some studies that suggest an increased prevalence of FASD in Aboriginal communities, but they are dated, regional in their focus, and with small sample sizes. (21) It should be noted though that for Caroline Tait, those studies are enough to substantiate a real link between FASD in Aboriginal communities and the social fallout left behind by colonialism. (22)

The prevalence of FASD in Aboriginal communities is not something that has been definitely proven on an empirical level, but it has nonetheless been a distinctly noticeable phenomenon in the legal system such that judges have had to grapple with the difficulties involved. The ensuing discussions will reveal that judges have struggled a great deal with applying the standard Canadian sentencing framework to accused people with FASD, Aboriginal accused people with...

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