Exploring the Use of Restorative Justice Practices with Adult Offenders with Fetal Alcohol Spectrum Disorder

1. Introduction

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 (McLachlan n.d.).

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.1 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.2

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,3 as well as addressing the root causes of crime.

Some of the potential benefits of RJ include:

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.5 The research was conducted in collaboration with five community-based programs in Canada that have taken steps to address the needs of these individuals.

Footnotes

1 Bill C-583 was introduced 31 March 2014; Bill C-656 was introduced 10 March 2015; and Bill C-235 was introduced 25 February 2016.

2 CTA 33. We call upon the federal, provincial, and territorial governments to recognize as a high priority the need to address and prevent Fetal Alcohol Spectrum Disorder (FASD), and to develop, in collaboration with Aboriginal people, FASD preventive programs that can be delivered in a culturally appropriate manner.

CTA 34. 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;
  • Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD;
  • Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community; and
  • Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety. http://trc.ca/assets/pdf/Calls_to_Action_English2.pdf

3 For the sake of brevity, the report uses the term “victims,” which includes the experiences of both victims and survivors, and the term “offenders,” which includes the experiences of both accused and offenders.

4 These are a selection of benefits identified in the Handbook on Restorative Justice Programmes published by the United Nations Office on Drugs and Crime in 2020.

5 For the sake of brevity, the report uses the term “individuals with FASD.” This includes individuals with FASD or related cognitive impairments or brain injuries.