A Carmacks man was found not guilty of assault last month because he was exposed to alcohol in the womb, signalling a growing awareness by adjudicators that FASD sufferers require alternatives to the criminal court system.
Robin Sam left his uncle’s house on December 20, 2009, only to return a few hours later. In a violent episode he did not recall in court, he beat his uncle, leaving the man bruised, bloodied and suffering from a fractured eye socket.
Sam was arrested the next day. He suffers from “significant cognitive limitations,” and has a lengthy history with mental health providers. Though he was never diagnosed with Fetal Alcohol Spectrum Disorder, “community reports suggest a likelihood of prenatal exposure to alcohol,” say court documents.
Sam pleaded guilty to the aggravated assault charge. But Territorial Court Judge Karen Ruddy was not convinced Sam understood criminal responsibility by way of a mental disorder.
“There’s a burgeoning awareness in the criminal justice system that current approaches and historical approaches to probation orders and justice may not work for individuals with FASD,” said Brooke Alsbury, the executive director of the Fetal Alcohol Syndrome Society of Yukon.
While this is not the first case where criminal responsibility was found lacking due to neonatal alcohol exposure, it was probably buoyed by the recent push by the Canadian Bar Association to bring FASD on the national justice agenda, said Alsbury.
At its annual meeting in August, the bar association, which represents lawyers, judges and justice workers across the country, passed a resolution declaring the need for the justice system to accommodate FASD sufferers.
FASD impairs judgment, makes it difficult to control impulsive behaviour and reduces a person’s ability to understand the consequences of their actions, says the resolution. On the other hand, the justice system functions on the assumption a person acts in a voluntary manner and makes informed choices, it says.
Sentencing options are ineffective in changing the behaviour of people with FASD, it continues.
As well, the Charter of Rights and Freedoms guarantees “substantive and not merely formal quality before and under the criminal law without discrimination on the basis of their disability,” the resolution says.
With that in mind, the association calls for all governments to spend time and money looking at alternatives for people with FASD in the justice system and to amend current sentencing laws.
Despite a growing consensus, the solution to FASD sufferers in the court system is far from clear.
FASD is a spectrum disorder, meaning every case will be different, said Alsbury.
But research is offering some promising leads.
“What we do know is that support and structure in the community can be incredibly helpful,” she said. “When we look at alternatives to the justice system, we need to examine the ways in which we can build support and work collaboratively with the community.”
“The either/or situation – either no support in the community or putting people in jail – isn’t a good way to go about it,” she said.
Housing is a fundamental piece of the puzzle, she added.
Sam’s situation shows that at the individual case level, an awareness of FASD is having an effect.
Ruddy relied on the testimony of Dr. Shabehram Lohrasbe, who wrote two court-ordered psychiatric assessments on Sam, and psychologist Bill Stewart, who has counselled and provided support services for Sam in Carmacks, in her decision.
But here, at the systemic level, change hasn’t happened yet, said Alsbury.
“That’s why the Canadian Bar Association’s recent announcement is pretty critical,” she said.
“It’s starting to recognize, at that level, that we can have some common language and roll out some new systems on that understanding,” she said.
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