FASD in the Justice System—Addressing Critical Issue in Canada

April 4, 2019

By Dr. Michelle Stewart

Last week cases were heard in Manitoba’s new Fetal Alcohol Spectrum Disorder (FASD) court. A first of its kind in Canada, the court will work collaboratively with partners inside and outside the courts to better meet the needs of individuals with FASD. In an interview with the Winnipeg Free Press, Judge Mary Kate Harvie explained, “because FASD is often, not always… a hidden disability and is sometimes masked by other behaviour, it’s really critical for us to know whether or not that is a contributing factor to their offending behaviour and whether or not there are supports out there that might assist in ensuring they don’t get into trouble again.”

FASD is a complex and lifelong disability. Individuals with FASD are understood to have negative contact with the justice system for a number of reasons not least of which can be a lack of connection to appropriate community supports and services. Specialized dockets including the Mental Health Disposition Courts in Regina and Saskatoon Mental Health Strategy also dedicate special attention to the unique needs of these individuals.

The Truth and Reconciliation Commission (TRC) of Canada addressed the issue of FASD being over-represented in the justice system in TRC Call to Action #34 which includes the following:

We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including:

Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD.

The recently opened FASD Court in Manitoba (and other dedicated dockets that take time to work with clients that have FASD) speaks to the Call to Action by offering a tangible alternative justice practice that seeks to “better address the needs of offenders” while also seeking to find more “appropriate community supports” for those with FASD.

In Fall 2018 a Framework for Action focus on TRC Call #34 released 12 actionable items for frontline justice professionals including the need for further education on FASD as well as expanding alternative and therapeutic justice practices. As supports and services expand in the courtrooms to meet the needs of those with FASD, there remains the ongoing challenge to offer support and education to frontline justice professionals who are delivering services to clients with complex needs.

Last month an international training was held for frontline justice professionals focused on FASD that featured Saskatchewan’s own Judge Clifford Toth who discussed the inception and outcomes of Regina’s Mental Health Disposition Court. While not focused exclusively on FASD, these types of therapeutic and alternative justice practices are critical in changing current practices to better address the needs of those with FASD. Included in the presentations was information about the need to modify practices to address the complex needs of clients that can range from physical impairments to sensory and processing challenges. The following quick tips were shared at the conference:

1. Use clear and concise language.
2. Offer instructions one step at a time.
3. Check for understanding and don’t assume understanding.
4. Use all forms of reminders that are available (electronic, phone calls, notes etc.).
5. Identify and work closely with mentors if they are available.
6. With sensory processing issues, change the space to meet the needs of the person.
7. Routine is critical.
8. Relationships can be challenging to develop so foster and nurture them.
9. Supports inside and outside the court are important.
10. If you think someone has FASD, modifying your practices to meet their needs is a good idea.

For more information about FASD visit: fasdresearchproject.com and for information for justice professionals visit: fasdjustice.ca.