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

Date01 October 2014
AuthorMilward, David


Recall that many different sentencing principles, some of them in clear contradiction with each other, are embedded in section 718. Recall also that the section itself provides little guidance for when those objectives come into conflict with each other in the same case. The framework therefore leaves plenty of room for the judicial development of common law principles and the judicial exercise of discretion. It is fair to say that thus far judicial sentencing principles have given greater relative priority to deterrence and retribution in comparison to rehabilitation. That prioritization perhaps finds concrete expression in the "starting point" approach. If a certain crime is committed with certain facts present, then the sentencing judge must use the guideline sentence as a starting point. (138) For example, in Alberta the starting point for a sexual assault that involves a breach of trust with respect to a child victim is four years. (139) The presence of additional aggravating factors may justify a sentence more severe than the initial starting point. Likewise, the presence of mitigating factors, of which the accused having positive rehabilitative prospects would be an example, can justify a lesser sentence than the starting point. The latter possibility can only be taken so far, though. A sentence that departs too far from a starting point is a factor that will be taken into consideration during a sentencing appeal when deciding whether a sentence is demonstrably unfit. (140) The framework therefore has a distinct tilt in favour of objectives like deterrence and sentencing.

I am not suggesting a complete overhaul of this system across the board. My point is that if there is room in the existing framework to give a general tilt in favour of deterrence and retribution, then there is also room to tilt in favour of rehabilitation in certain specific contexts. Accused suffering from FASD, Aboriginal persons with FASD in particular, represent just such a context. (141) Heather Douglas argues that there needs to be a shift away from deterrence and retribution in the sentencing of FASD accused, and more towards needs-based sentencing and supervision. (142) It is therefore again to the credit of the judiciary that they are not only recognizing this need, but now also recognizing the linkages between the Gladue factors, the impacts of colonialism on Aboriginal peoples, and the role of FASD in crime committed by Aboriginal persons. (143)

In R v Dayfoot, the accused was charged with robbery, uttering a threat, failure to comply with recognizance, and failure to attend court. (144) Justice Shamai of the Ontario Court of Justice concluded that the accused's condition attenuated section 718.1's demand for proportionality, as follows:

The violence in this case is at a low level, being expressed in words and threats rather than causing bodily harm. It is in a setting where the accused Mr. Dayfoot was negatively influenced by his co-accused. Again this is symptomatic of a person suffering ARND. To punish behaviour which results from a clinically recognized disability runs contrary to the principles of criminal law, certainly where treatment is available. Unaided, the continued disability leaves Mr. Dayfoot more dangerous than he might be with treatment. Thus fundamental principle of sentencing expressed in Section 718.1, relating to the degree of responsibility of the offender, is properly interpreted by fashioning a sentence taking into account the role played by ARND, and the prospect of eradicating this source of criminal misconduct. (145) Justice Shamai also concluded that the linkage between the Gladue factors and the accused's FASD demanded a different approach to sentencing:

The application of section 718.2(e) supports the result of a conditional sentence as well, inasmuch as "the consideration of all available sanctions other than imprisonment ... with particular attention to the circumstances of aboriginal offenders" directs the Court to the shocking prevalence of suspected FASD/ARND among the aboriginal population. Restorative justice in sentencing a member of the First Nations communities must be seen in the context of not just the individual and the victim.... Where the community is the First Nations communities, many of which have been ravaged and damaged by the dismemberment effected by residential school policies, and the disintegration of family and community identity through adoption, restorative justice must apply to the community as well as the offender and victim. (146) One of the expert witnesses, Dr. Pripstein, recommended an intensive supervision program that included wearing a medical bracelet, a vocational strategy, as well as immersion in Aboriginal culture and traditions. (147) Justice Shamai was therefore willing to order an 18-month conditional sentence. (148)

Then there are decisions that recognize that incapacitation for the sake of public safety should be the only legitimate basis to not pursue a needs-based sentence for an FASD accused. Stated differently, as long as a non-custodial sentence can be structured such as to eliminate or minimize risk to the public then there should be no other impediment to emphasizing rehabilitation. Judge Lilies stated in Harper:

I am of the opinion that separation (where necessary for the protection of society) and rehabilitation should be the primary focus of judges involved in sentencing FASD-affected offenders. Separation does not equate with jail, however. Separation can and should be achieved in a secure community setting in most instances. We do not jail children under the age of 12 in Canada and when they are under the age of 18 years, they are detained separately from adults. FASD-affected individuals who function at the level of children should only be placed in jail as a last resort and then in a facility separate from adults in order to avoid the victimization experienced by Mr. Harper when he was in custody. Similarly, rehabilitation for Mr. Harper must accommodate his cognitive disabilities and can not be achieved through typical offender programming. It must involve individualized supports and a focus on improving his life skills through repetitive tasks done under supervision. Mr. Harper is capable of learning and developing, but he needs to be guided and supported in a manner that takes into account his limitations. (149) The accused was sentenced to 1 day served and 24 months' probation. (150) His Honour even went as far as suggesting that a reliance on deterrence and denunciation to justify jailing an FASD accused could potentially invite the application of section 12 of the Charter, which prohibits the cruel and unusual punishment of an accused. (151)

It is preferable to pursue non-custodial options as the more constructive route, so long as public safety is not endangered. And indeed the reason Judge Anderson in Soosay refused to put the accused into federal penitentiary on the basis of general deterrence or incapacitation was because of fears that the accused would develop gang ties while in a penitentiary and further reinforce anti-social behaviour. (152)

So how do we go about addressing that tension between public safety and needs-based sentencing when it comes to FASD persons, Aboriginal persons with FASD in particular? An important prerequisite is to gather the right information first. Consider this quotation from Justice Watson of the Alberta Court of Appeal in R v Ramsay.

Crafting a fit sentence for an offender with the cognitive deficits associated with FASD presents at least two identifiable challenges: accurately assessing the moral blameworthiness of the offender in light of the adverse cognitive effects of FASD; and balancing protection of the public against the feasibility of reintegrating the offender into the community through a structured program under adequate supervision. Medical reports assessing the prospect of the offender's rehabilitation and reintegration into the community are essential to the task and must be carefully analyzed. (153) Bonny Lynn Gerger wrote a Masters in Justice Studies thesis based on qualitative interviews with 11 justice professionals with FASD expertise, 2 First Nations lawyers, 2 lawyers with experience representing FASD clients, 2 Provincial Court judges, 2 correctional psychologists, and 2 correctional educators. (154) The interviews indicated that one of the most pressing needs to prevent recidivism was for probation staff to have greater awareness of FASD so as to be able to identity each offenders needs. (155)

Diane Fast and Julianne Conry stress the need for a comprehensive medical-legal report that includes an FASD diagnoses that can serve as a starting point and a proper foundation for an appropriate sentence. (156) The process of getting adequate information before the courts not just on the presence of FASD itself, but also the specific effects of FASD on an individual accused, can be very involved. As Diane Fast and Julianne Conry explain:

A comprehensive medical-legal report can assist the judge, lawyers, and others involved with individuals with FASDs. Assessments can be prepared before or after sentencing, and should describe the disabilities of the offender and implications for sentencing. Only professionals who are recognized as being experienced in assessing people suspected of having FASDs should prepare the medical-legal reports, psychological assessments, and social histories. The report should clearly document the evidence supporting the diagnosis of FAS or another FASD. Often the most difficult part is obtaining a confirmed history of prenatal alcohol exposure. Since people with FASDs have difficulties in comprehension and recall, it is critical that they are not the only informants. Information contained in previous reports cannot be taken at face value without verification. Psychiatric diagnoses and the social history...

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