FASD in the legal system: a known problem without a specific solution

While Justice Minister Louis Sebert acknowledges the prevalence of Fetal Alcohol Spectrum Disorder (FASD) and that it’s “a problem” in the legal system, he’s still unsure about developing programming addressing the issue directly.

That’s what he told MLA Tom Beaulieu after being asked if he would commit to create programs to help those with FASD in correctional facilities.


According to the latest statistics from the Canada FASD Research Network, four per cent of the Canadian population lives with FASD—about 1.4 million people.

In 2015, the estimate was about 330,000 people.

The jump between estimates comes now that researchers have specified prevalence data, according to Audrey McFarlane, executive director of Canada FASD.

“We’ve always been operating with a conservative number in the past,” she says. Even that four per cent figure, she says, is likely still lower than the actual number of people with FASD.

In a report published in August last year, Canada FASD says about “10 per cent of adult inmates in Manitoba and 18 per cent in the Yukon meet the criteria for FASD.”

But figures in the Northwest Territories are hard to come by, as highlighted by MLA Beaulieu.

“What is unknown, however, is the number of NWT inmates that have FASD, because the government does not track that,” he said in one of his member statements last week. “This brings me to the heart of the issue, which is that more work needs to be done in helping persons with FASD navigate the justice system.”

In an email, Sue Glowach, spokesperson for the Department of Justice, confirmed that the government doesn’t track statistics for FASD “or any other diagnosed illness.”

McFarlane, in her experience, thinks figures for inmates with FASD in the NWT would be similar to those in the Yukon.

No FASD programs

In her email, Glowach added that “cognitive challenges, mental health problems or addictions issues” are all taken into account when creating program for inmates.

Asked what the department was doing to address the overrepresentation of people with FASD in the legal system, Glowach pointed to the establishment of the Wellness Court.

The court is a voluntary program that lasts between one year and 18 months where people with criminal and/or drug charges—usually repeat offenders—follow a strict tailored plan with the ultimate goal of breaking their criminal cycle.

But there are still no FASD-specific services within Wellness Court.

McFarlane says there’s a “great deal in interest across the country” in integrating diagnostic services within corrections. If someone can be diagnosed while in the system, she says, it would be easier to offer them support and hopefully prevent them from re-offending.

‘Aboriginal issue’ myth

The Canada FASD report, titled FASD Prevalence in Special Populations, outlines the misconception that the disorder is mainly an “Aboriginal issue.”

It states, “In fact, there is little high-quality evidence to support this claim, but because of mixed research findings, it is difficult to derive clear conclusions.”

It goes on to say there are few studies focusing on FASD in Indigenous populations.

Based on a 2013 review, there’s a “high variability among studies, and rates of FASD are not substantially different between Indigenous and non-Indigenous populations in Canada.”

Finally, it calls for “sound research” to be explore the issue further and breakdown stigma.

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