Fetal Alcohol Syndrome Disorder (FASD)

New studies suggest that the prevalence of Fetal Alcohol Syndrome Disorder (FASD) in the Canadian population is higher than previously thought. In fact, FASD may even be more prevalent than autism. As acknowledged by criminal defence lawyer Lori Van Dongen, this is a reality that can be heard echoing through our courts: “I can tell you as a practicing defence lawyer, it is significant how many of my clients have this diagnosis.”[2] Amid the flurry of research that has accompanied our growing awareness of mental health subjects like this one, the Province of Manitoba has taken action by establishing a new court (set to open on March 28th, 2019) designed specifically for people with FASD.

FASD is a brain injury caused by exposure to alcohol while in the womb. Approximately 1.8-2.9% of Canadians are born with FASD. Common symptoms include problems with learning, memory and attention, as well as difficulties with reasoning and judgment. Parents who are asked what it is like to have a child with FASD have described how their children “can switch from abuse and anger to loving in an instant and they don’t remember what happened”, and have stated that “they don’t understand consequences”. This can predispose them to being swept up into our court system; it is estimated that 25 percent of inmates in federal prisons are coping with FASD. As clinical psychologist Dr. Vanessa Spiller explains: “Discipline is usually our first reaction, as human beings… But it just doesn’t work very well with kids who have FASD”.

In their article “The Relevance of Fetal Alcohol Spectrum Disorder in Criminal Law”, Kent Roach and Andrea Bailey discussed how the very structure of our criminal justice system has largely set up people with FASD for failure:

Canadian criminal law is premised on assumptions about free will and individual responsibility. Any departures from that norm are assumed to be temporary and treatable. These assumptions unfortunately do not fit well with what is known about FASD as a permanent form of brain damage…

The introduction of a specialized court reflects a growing awareness of this reality. Canadian criminal courts have been unfortunately inconsistent in their approach to accused with FASD, “especially with respect to the taking of statements and sentencing. The recognition of FASD by the court sometimes works to the advantage of the accused, but sometimes does not”.

For example, in R v Friesen (2016 MBCA 50), a 20-year-old accused with FASD was originally sentenced to 6 years in prison for manslaughter. When determining a just sentence, there are a number of factors that a judge is required to consider, including the prospect of rehabilitation of the convicted person, which is a mitigating factor. In Friesen, the trial judge determined that the accused’s diagnosis did not carry much weight as a mitigating factor against a longer sentence, as there would be no hope of rehabilitation from a “chronic neurological deficit” such as FASD. The Manitoba Court of Appeal later decided that the trial judge had erred by “failing to give due regard to [the accused’s] partial FASD diagnosis”, overturned the decision, and instead ordered a 4-year sentence. While the offence in this case was of a severity unlikely to be dealt with specifically be the new court, the trial judge’s errors exemplify the misunderstandings surrounding FASD that will hopefully be avoided with a specialized court.

The new court features several key differences, namely:

1. A smaller, quieter courtroom;
2. Judges with a specialized understanding of FASD;
3. Support workers available to provide connections to community programs; and
4. Access to help for obtaining a medical diagnosis.

Many people are hopeful that the new court will be a positive step towards much-needed change in our province. Criminal defence lawyer Wendy Martin describes its introduction as “a really good move for our courts, for our province, for our clients”. Others are still reserving judgment, concerned that without first improving public awareness and education, a separate court could result in the further stigmatization of people with FASD.[2] The fact is that it remains to be seen whether or not the new court will have a noticeable impact on our province’s justice system.

In R v M (R B) (1990 CarswellBC 781) the British Columbia Court of Appeal, speaking of FASD, stated that “in any population there will be some disadvantaged members who, for many reasons, are likely to fall, or more likely drift, into a life of idleness and crime.” This reality begs the question: what are we doing about it? At for least today, we can answer that we are taking action. Regardless of the debate over whether or not the new court will bring us closer to the change we hope for, we can rest in the knowledge that we are not sitting idly by for fear that our attempt at change will fail. Rather, we are taking steps to face systemic issues and bring Manitoba into a more equitable and compassionate future.

Pro Bono Law Student 

Disclaimer: This document does not contain legal advice. Pro Bono Students Canada (PBSC) is a student organization. This document was prepared with the assistance of PBSC law student volunteers. PBSC students are not lawyers and they are not authorized to provide legal advice. This document contains general discussion of certain legal and related issues only. If you require legal advice, please consult with a lawyer.