In The News: No option but indeterminate sentence for dangerous offender with FASD


There is little doubt a 33-year-old man’s inability to successfully deal with his violent behaviour is related to his FASD diagnosis.

But while a Regina Court of Queen’s Bench judge recognized the struggles faced by Dallas Dwayne Whitebird, he determined the safety of the public meant nothing but an indeterminate prison sentence could mitigate the risk.

Whitebird’s dangerous offender (DO) hearing wrapped up earlier this week with a decision from Justice Fred Kovach, declaring the man a DO and handing down the sentence.

But the judge didn’t do so lightly.

“I acknowledge and understand that he is a violent individual, but I am also mindful that but for his criminal behaviour, this individual would likely be residing in an adult group home,” Kovach said. “He would be unable to manage day-to-day life without support and guidance. He does not have the capacity to care for himself within the framework of our society, and society has failed him throughout his life.”

Whitebird was convicted back in September 2012 of aggravated assault, but was not sentenced until this week. The offence, committed in the summer of 2011, involved an intoxicated Whitebird punching his older half-sister. She hit a door hard enough to smash her jaw — an injury that caused a serious break from which she never fully recovered before her death a few years ago.

Whitebird was far from a stranger to violence, having spent the largest part of his life in custody since age 14. Court heard his record contains close to 15 entries for violence and firearms offences.

Kovach said Whitebird was in custody for his sister’s assault when he earned a seven-year sentence for slashing the throat of a fellow inmate.

That history left no question in the judge’s mind Whitebird has demonstrated the pattern of repetitive violent behaviour required for a DO designation.

The product of what Kovach described as a “chaotic” childhood, Whitebird was exposed to substance abuse and violence from an early age. His mother a residential school survivor, she developed a drinking problem and struggled as a parent.

Whitebird spent time in various foster homes and eventually, at age 12, started drinking and using marijuana.

Since diagnosed with FASD, Whitebird is considered “cognitively low-functioning” and lacks impulse control. His resulting difficulty with programming intended to curb his violent behaviour was chief among reasons Kovach decided an indeterminate sentence was necessary. Two forensic psychologists who assessed Whitebird found it unlikely he would be able to grasp and retain the material he’d need to in order to change.

One of the psychologists believed the use of the Regional Psychiatric Centre as a home institution for Whitebird could help — a finding with which Kovach agreed. The judge made a recommendation to Correctional Service Canada (CSC) that Whitebird be placed in that institution on a permanent basis — or at least until he is able to make use of lessons learned in programming so as to safely release him.

“The CSC has a responsibility to protect the public from offenders, but it cannot be blind to the need for rehabilitation and support for offenders,” Kovach said. “Whitebird represents a failure by CSC to accommodate the needs of an individual with severe cognitive impairments.”

Even if he is eventually released, Kovach noted Whitebird’s cognitive issues mean he will require community assistance for the rest of his life.

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