Jane Evans and Natacha Bourgon
Research and Statistics Division
Department of Justice Canada
There are serious concerns about the vulnerability and needs of individuals with fetal alcohol
spectrum disorder (FASD) in the criminal justice system (CJS). FASD, a diagnostic term used to
describe the impacts of prenatal alcohol exposure on the brain and body, is a lifelong disability.
Although each individual with FASD is unique, most will experience some challenges in their daily
living and require support with learning, memory, attention, communication, emotional regulation, motor skills, physical health, and social skills (Fraser 2008).
Research on the prevalence of FASD in Canada is limited. The Canada FASD Research Network has reported that the best estimate of FASD in the general Canadian population is 4 percent (Flannigan et al. 2018a). Research on the prevalence of adults with FASD in the CJS is even more limited, resulting in varying estimates. In 2011–12, the prevalence of FASD was estimated at 9.9 percent among adults in custody on any given day in Canada (FASD Ontario 2015). A more recent study found that an estimated 17.5 percent of offenders in Yukon’s correctional system had FASD
Growing concerns about the vulnerability and needs of individuals with FASD in the CJS have been raised in several forums. Between 2014 and 2016, three private members’ bills were introduced to amend the Criminal Code and the Corrections and Conditional Release Act.
Although the bills did not pass, they called for a number of amendments to address the needs of individuals with FASD who are involved in the CJS. These included: adding a definition of FASD in the Criminal Code, establishing a procedure for assessing individuals for FASD, requiring courts to consider FASD a mitigating factor in sentencing, and ensuring that external support plans are put in place for individuals with FASD.
In 2015, two of the Truth and Reconciliation Commission (TRC) Calls to Action (CTA) asked
governments to address and prevent FASD through culturally appropriate programming as well as to undertake CJS reforms to better address the needs of offenders with FASD. A 2018 literature review of FASD and the CJS highlighted the lack of research on justice
interventions for offenders with FASD. Specifically, the review stated, “we have a limited
understanding, based on the current evidence, of what types of supports might lead to better
outcomes. There is no research to explore what forms of intervention may help or harm, individuals involved in the system” (Flannigan et al. 2018b).
The need to identify programs and services that might lead to better outcomes was also highlighted in a 2016 report to the Federal-Provincial-Territorial (FPT) Ministers and Deputy Ministers Responsible for Justice and Public Safety by the Steering Committee on FASD and Access to Justice. The report recommended that “jurisdictions consider evaluating the effectiveness of restorative justice approaches for people with FASD.” It also highlighted the importance of engaging with restorative justice (RJ) programs and encouraged the “development and delivery of education and training programs on FASD and other neurocognitive disabilities for criminal justice system professionals.”
Restorative Justice is an approach to justice based on the understanding that crime causes harm to people and affects the community. Under this approach, those who have caused the harm have a responsibility to repair it; those who have been harmed are central in deciding what is needed to repair it, and communities have a role to play in supporting victims and offenders, as well as addressing the root causes of crime.
Some of the potential benefits of RJ include:
- allowing more timely access to justice;
- providing victims with an opportunity to be heard and to understand the offender;
- providing victims and the community with answers;
- providing victims with an opportunity for reparation;
- facilitating victims’ recovery;
- reducing the frequency and the severity of reoffending; and
- contributing to effective reintegration of the offender in the community.
Although the effectiveness of RJ with FASD populations has not been formally evaluated, RJ
principles have been found to improve outcomes for individuals with FASD who are involved in the CJS. This may be because RJ uses an individualized approach to addressing harm, which is not as easily achieved through the mainstream justice process.
In this context, the Department of Justice Canada (JUS) examined RJ practices that are used with
adults involved with the CJS who are diagnosed with or suspected of having FASD. The research
was conducted in collaboration with five community-based programs in Canada that have taken
steps to address the needs of these individuals.