Fetal alcohol spectrum disorder evidence in Canadian criminal cases: A case law review.

Abstract

Increasing evidence highlights the relevance and frequent consideration of fetal alcohol spectrum disorder (FASD) in Canadian criminal legal cases, though systematic evaluation of the impact of such evidence on legal outcomes remains limited. We sought to fill this gap via a systematic review of reported Canadian criminal cases mentioning evidence of FASD (including prenatal alcohol exposure, PAE) between 2012 and 2020. The final sample of 350 cases primarily included male (92.3%) adult defendants (86.9%). The majority focused on sentencing determinations (76.3%), along with dangerous/long-term offender (DO/LTO) designations (1.4%), guilt/innocence (3.4%), criminal responsibility (0.8%), fitness to stand trial (0.6%), and other decisions (7.4%). Indigenous defendants were overrepresented (76.9%), with a subset of cases (33.1%) addressing FASD evidence alongside Gladue sentencing considerations, findings that must be situated in the context of systemic inequities and colonization. Often, evidence about FASD was mentioned only once (42.3%), and roughly half of the cases referenced a formal FASD diagnosis (53.1%). Evidence about FASD was assessed as having "great relevance" in 21.7% of decisions, and among these cases, there was relative consensus that FASD can reduce a defendant's responsibility and moral blameworthiness, and general acceptance as a mitigating factor. However, decision-making challenges were evident across cases due to competing concerns about risk, public protection, rehabilitation, and the long-term nature of the disability. Findings highlight the importance of improving evidence-based FASD knowledge, increasing access to evidence-informed resources, and bringing a culturally informed lens that highlights Indigenous ways of knowing when working within the criminal legal system.

Screening and identification of fetal alcohol spectrum disorder in criminal legal settings: A realist review

“…Consideration should be given to an instrument's sensitivity and specificity to minimise undue distress or confusion, delayed assessment, misdiagnoses and unnecessary allocation of costs, resources, and services for individuals and caregivers/families (Autti-Rämö, 2016;McLachlan et al, 2022;Zizzo et al, 2013). This is particularly important in criminal legal populations as consequences of missed identification and misdiagnosis may result in meaningful and potentially harmful impacts on legal outcomes and trajectories (Autti-Rämö, 2016;McLachlan, Amlung, et al, 2020;Mullally et al, 2023). In addition, consideration should be given to the diagnostic guidelines for which given screening tools and included items may have developed and validated, which has been noted as a challenge by other reviews (see Lim et al, 2022).…”

“…Even the strongest screening tools will sometimes result in incorrect classifications, and even comprehensive screening cannot garner sufficient information to understand the unique needs for each individual person with FASD (McLachlan, Amlung, et al, 2020). Recent case law reviews have highlighted the problem of insufficient or unconfirmed information about PAE and FASD in court, underscoring the importance of ensuring adequate follow-up diagnostic assessment resources when implementing screening practices and the need to educate legal personnel including lawyers and judges about differences between screening and diagnosis (Chasnoff et al, 2015;Clarren et al, 2011;Mullally et al, 2023;Petrenko et al, 2014;Popova et al, 2021;Zizzo & Racine, 2017). It is important that the goals for FASD screening and tailored follow-through processes are wellestablished and clearly communicated to individuals, along with what information has the potential to be shared and with whom (McLachlan, Amlung, et al, 2020.…”