Paths to Justice – Research in Brief
- Victim Sevices Workers’ Experiences Working with Vitcims with FASD
- Highlights from FASD Canadian Caselaw
By Charlotte Fraser, Research Analyst and Susan McDonald, A/Principal Researcher
No empirical information exists on victims or witnesses who have Fetal Alcohol Spectrum Disorder (FASD) or victims of offenders who have FASD. This research note summarizes highlights interviews with victim services workers who have worked with victims who have FASD.
Victim Services in Canada
Each province and territory in Canada provides assistance to victims of crime. The manner by which these services are delivered varies considerably between and within jurisdictions. System-based services are those located within the structure of the criminal justice system and often, but not always, provide assistance to victims throughout the course of their contact with the system (from police contact through court hearings). The model of delivery also varies in whether full–time, paid workers are those delivering the services, or whether volunteers are used, or a combination of both.
A letter of information was sent to Directors of Victim Services across Canada and Crown Witness Coordinators in the North in November 2007 asking them to identify workers who have experience working with victims who have FASD or victims of offenders who have FASD. Victim services workers who were identified were contacted to gauge their interest in participating in a telephone interview to discuss their experiences.
Questions focused on the victim service worker knowledge of FASD, the type of victim services offered in their region, identified challenges in working with this population, the strategies and approaches they used, and suggestions for how to improve awareness of FASD.
Twelve semi–structured telephone interviews were completed between November 2007 and March 2008. Interviews lasted between 30 minutes and 90 minutes. There were participants from eight jurisdictions. The majority of respondents were employed in rural areas and several also worked on circuit.
Types of victim services offered varied. Some victim services described by several respondents involved continued contact and support from first contact (police) to post–sentencing. Other respondents provided court-based support which involved preparing witnesses for court and informing victims about court processes.
Victim services workers had previous experiences in other helping professions, such as child welfare or counselling. Most respondents had backgrounds in social work and several had studied FASD in their educational backgrounds. Several themes emerged from the results and are highlighted below.
All respondents felt that victim services workers should be aware of FASD. There was a consensus that FASD is under-diagnosed and that in many cases FASD is suspected and not diagnosed. One respondent commented that
"it is much higher than we realize because it’s either misdiagnosed or it’s just not noticed at all". The perceived prevalence of FASD among their caseloads was highly variable and dependent on respondents’ knowledge of the characteristics of FASD as well as their particular regional jurisdiction. One respondent noted
"different populations have different social issues going on. And I know for us this is one of the big issues within our communities here". The perceived prevalence of FASD among their caseloads ranged from a low of 1% to over half of respondents’ case loads. Among participants who worked with victims who were children and youth there was a perception that the prevalence of FASD was between 10-15%. For example, one respondent thought that
"it’s more prevalent in some of our youth and older teens, and they’re blaming it on maybe drug usage or other things".
One respondent provided an example of a child victim who had FASD and the trouble he had providing witness testimony. The respondent noted
"nobody asked specific questions to get the information that was needed and it never came out. And then here’s this kid who, for the first time in his life, had spoken out against his abusive father, got a strip torn off him by the judge because he was an unreliable witness."
It was also noted that writing Victim Impact Statements is very challenging for victims with FASD. One respondent noted that
"writing skills and writing comprehension is not their strong suit typically. They require a really concerted effort to assist them in summarizing emotionally how this crime has affected them."
Several respondents noted that the delivery of victim services makes it very challenging to identify individuals who may have special cognitive or behavioural challenges including FASD. These respondents noted that they often do not spend much time with victims and sometimes they only speak with victims over the telephone.
Strategies and Suggestions
Several suggestions were provided with respect to strategies for working with victims who have FASD. A couple of respondents mentioned the importance of making victims with FASD feel relaxed, which could be done by providing them with a stress ball or giving them pen and paper for drawing. One respondent suggested that dealing with the victim in the present is the best way to help them, noting that
"maybe they’re looking for a way to get something for dinner, and what your concern is, is about how they’re going to behave in the witness box. Help them with the immediate things and work up towards what they’re going to do in the witness box." Several respondents reported that when providing referrals for victims who have FASD, respondents often make the appointment for the victim and sometimes accompany the victim to their first appointment to make sure they go.
Many respondents suggested training that identified the behavioural characteristics associated with FASD and strategies for appropriately responding to victims and witnesses with FASD should be a priority for all criminal justice professionals, including victim services workers. It was also suggested that a written resource would be very useful, such as a book with best practices which provides concrete examples for individuals who work with victims who have FASD. Similar to results from other research on FASD, having access to diagnostic services was repeatedly suggested.
By Susan McDonald, A/Principal Researcher, Angie Colombi, Student and Charlotte Fraser, Research Analyst
Persons with Fetal Alcohol Spectrum Disorder (FASD) who have come into contact with the criminal courts face special challenges whether as accused, victims and/or witnesses. This research note summarizes a more in–depth review of Canadian caselaw involving persons suspected of having or diagnosed with FASD. It builds upon an excellent web resource which provides a review of caselaw where "FASD" has been mentioned during court proceedings. The web resource included published Canadian caselaw up until December 2005. This research note provides an overview of caselaw where "FASD" was mentioned after December 2005.
Using QuickLaw, the following terms were used in searching criminal cases from December 2005 to March 2008: "fetal alcohol" (to capture "Fetal Alcohol Syndrome", "partial Fetal Alcohol Syndrome", and "Fetal Alcohol Spectrum Disorder"), and "Alcohol–Related Neurodevelopmental Disorder". Published caselaw is not representative of the incidence of criminal offences involving persons suspected of having or diagnosed with FASD. Caselaw does, however, provide an overview of some of the important legal issues concerning persons with FASD.
Forty-two criminal court cases mentioned FASD during the 15–month timeframe. The caselaw represented cases from every province and territory except for Quebec, Nova Scotia and Prince Edward Island.
Four cases involved victims who were diagnosed with FASD. The diagnosis of FASD among victims was not considered at sentencing for these cases. The remaining cases involved offenders who were suspected of having or diagnosed with FASD. FASD was more often diagnosed than suspected in the reviewed caselaw.
Common offences among accused persons with FASD included violent crimes, especially robbery. There were also some cases of sexual assault. Most accused persons with FASD had extensive criminal histories.
Compared to the caselaw review completed prior to 2006, there has been an increase in the number of reported cases that reference FASD, in particular cases involving youth.
There was no consistent approach to responding to offenders or victims with FASD mentioned in the caselaw. FASD was explicitly incorporated into the judicial decision making in ten of these cases. In three of these cases FASD was considered in the judicial decision making in the context of the defendant raising the issue of FASD. For example, in R. v. J.D.M., the defendant unsuccessfully tried to appeal the decision to register with the Sex Offender Information Registration Act, arguing that he was incapable of complying with the order as a result of his FASD. In R. v. B.K.T.S., the defendant unsuccessfully argued to have two statements that he provided police deemed inadmissible. In R. v. Jobb, the defendant was found unfit to stand trial.
FASD was considered at sentencing in three cases. In R. v. L.A.B., a 14 year–old girl was accused of second degree murder. Many factors such as her diagnosis of FASD, troubled upbringing, and lack of criminal record were considered in determining whether she should be sentenced as an adult. Ultimately, she was sentenced as a youth because her moral culpability was deemed insufficient to warrant an adult sentence. Having FASD appeared to be detrimental for the offender in the other two cases where FASD was considered at sentencing (R. v. Obed; R. v. C.P.S.). In R. v. Obed, it was noted that the offender was an unrealistic candidate for rehabilitation due to his diagnosis of FASD. Similarly, in R. v. C.P.S., the judge was unaware of any community treatment programs that could meet the offender’s complex needs (as a result of FASD and other personal history factors); as such, he was given a custodial sentence.
Three cases involved applications or appeals for long–term offender or dangerous offender designation. In R. v. Mumford, an application for a dangerous offender designation was declined in favour of a long–term offender designation. The incurable nature of FASD was mentioned as one of the deciding factors for this decision. In the other two cases, the application for dangerous offender designation was approved. In R. v. Vicaire, an application for dangerous offender designation was approved after examining personal history factors (FASD, neglectful upbringing) and lengthy criminal history. In R. v. Otto, an appeal by the Crown to change the long-term offender designation to a dangerous offender designation was allowed. It was determined that previous attempts to hold the offender in the community had been unsuccessful.
In S.D.F. (Re) the youth offender, who was diagnosed with FASD, was transferred to an adult correctional facility due to his behaviour. It was noted by the judge that his behaviours (as a result of FASD) cannot override the safety of those at the youth facility.
The remaining cases that mentioned FASD appeared to include it as part of the facts of the case and did not impact judicial decision making.
Additional Cases Included
R. v. J.K.W.  B.C.J. No. 313 2006; Young v. Halverson  O.J. No. 3492 2006; R. v. D.J.R.  B.C.J. No. 598 2006; R. v. K.D.T.  A.J. No. 501 2006; R. v. Stein  B.C.J. No. 1190 2006; R. v. Otto  S.J. No. 303 2006; R. v. C.J.M.  B.C.J. No 1536 2006; R. v. C.P.S.  S.J. No. 418 2006; R. v. T.K.  Nu. J. No. 15 2006; R. v. Green  O.J. No. 3118 2006; R. v. C.O.  N.W.T.J. No. 44 2006; R v. M.B.B.  A.J. No. 1175 2006; R. v. Obed  C.N.L.R. 355; R. v. Obed  N.J. No. 284 2006; R. v. Gauthier  N.J. No. 340; R. v. J.D.M.  A.J. No. 1598 2006; R. v. D.W.  S.J. No. 683 2006; R. v. Potter  S.J. No. 665 2006; R. v. C.S.U.  S.J. No. 674 2006; R. v. D.M.L.  A.J. No. 1517 2006; R. v. B.K.T.S.  M.J. No. 458 2006; R. v. Suarak  N.J. No. 366 2006; R. v. Horeczy  M.J. No. 444 2006; R. v. L.A.B.  O.J. No. 4473 2007; R. v. MacKenzie  B.C.J. No. 508 2007; R. v. MacKenzie  B.C.J. No. 793 2007; R. v. Faulkner  N.J. No. 46 2007; R. v. Vicaire  N.B.J. No. 198 2007; R. v. Beaulieu  N.W.T.J. No. 17 2007; R. v. Gares  A.J. No. 222 2007; R. v. Faulkner  N.J. No. 90 2007; S.D.F. (Re)  A.J. No. 397 2007; R. v. Mustard  O.J. No. 1786 2007; R. v. Mumford  O.J. No. 4267 2007; R. v. Dayfoot  O.J. No. 2869 2007; R. v. Sisco  O.J. No. 157 2008; R. v. Friesen  M.J. No. 364 2007; R. v. Friesen  M.J. No. 365 2007; R. v. S.A.P.; J.I.D.  No. 548 2007; R. v. J.D.L.  A.J. No. 1280 2007; R. v. Jobb  S.J. No. 625 2007; R. v. Curtis  A.J. No. 1348 2007; R. v. Pottle  N.J. No. 31 2008
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