A. Smith (law student)
- Mar 12, 2019
- 4 min read

Manitoba's Therapeutic Jurisprudence Salvo: Fetal Alcohol Spectrum Disorder Court

The Canadian criminal justice system is faced with a constant balancing act between retributive and restorative justice. While retributive justice focuses on the punishment being proportional to the offence, restorative justice focuses on the rehabilitation and understanding of the unique backgrounds of offenders. Restorative justice has been part of Canada’s criminal justice system for over 40 years and supported through Federal legislation, policy and program responses. At the Federal level, the Criminal Code (Section 717 and 718) and the Youth Criminal Justice Act enable restorative justice processes to occur. Manitoba is slowly moving towards a more restorative approach, especially with the implementation of specialized therapeutic courts. Due to the success of the drug treatment courts as well as mental health courts, a new Fetal Alcohol Spectrum Disorder court will be implemented in the upcoming months.

Currently, the Winnipeg Mental Health Court offers pre-sentence intensive services for those with mood disorders, schizophrenia and other persistent mental disorders. These specialized courts allow the offender to assume more of a role in their rehabilitative plans in order to ensure they are successful and to reduce recidivism.1 The collaborative approach not only ensures that offenders are punished for their acts, but also that they receive special access to treatment programs that they desperately need. These courts also help to reduce the stigma around mental health and emphasize the importance of taking care of one’s whole body, rather than just focusing on physical health. In 2014 a study was conducted on the effectiveness of the mental health court process in Montreal. It concluded that the focus on treatment sentencing rather than criminalization allowed participants to take stock of their mental health problems and slightly reduced homelessness.2

In addition to Mental Health Courts, a Drug Treatment Court was created to getting individuals treatment, rather than on harsh punishment. The offender, after entering a guilty plea, would have their sentences delayed in order to participate in an intensive drug treatment program. After completion, the individual received a community-based sentence rather than being sent to jail where it is more likely their addiction would continue.3 According to Public Safety Canada, drug treatment courts have already reduced recidivism rates by approximately 8 percent.4

Although Fetal Alcohol Spectrum Disorder (FASD) has always existed among some offenders, the Manitoba courts have finally recognized the importance of addressing this issue. The Canadian FASD Research Network recently published an article in regard to individuals with Fetal Alcohol Spectrum Disorder and the Criminal justice System. The article stated that individuals with FASD had higher rates of abuse, impairment and traumatic upbringings which in turn increased their chance of committing crimes.5 In addition, many individuals diagnosed with FASD do not understand that they are breaking the law. As an example, what might be considered a friendly jab to the arm, could in reality be considered assault.

While individuals with Fetal Alcohol Spectrum Disorder are at higher risk for committing crimes, it has been argued that the Criminal Justice System is not geared to their needs. Whether as a witness, victim or perpetrator, an individual's experience with FASD should be considered at all stages of the criminal justice system. Those with FASD may be unable to understand the charges, have problems with time management and may be confused as to how criminal proceedings operate. Although many individuals are diagnosed with FASD, many are unaware of their diagnoses prior to committing a crime or becoming a witness. Some tend to confabulate or blend their actual experiences with fictional experiences.6 The Criminal Justice System has grappled with the types of assessments that are deemed sufficiently able to diagnose FASD.7 Although a confirmed diagnosis can benefit perpetrators by reducing their sentences as a result of their illnesses, many who have gone undiagnosed have received longer jail sentences and retributive rather than rehabilitative sentences.

In a recent Winnipeg Free Press article, it suggested that Manitoba must take a more hands on approach to not only prevent FASD at the outset but to ensure the Criminal Justice System is responsive to those suffering from FASD. Although educating women about alcohol and pregnancy is key, the special Fetal Alcohol Spectrum Court will run once a week in order to ensure that the symptoms of those already diagnosed are considered in the judicial process. In addition to education for judges and lawyers, the court will be smaller with fewer distractions and visual images. Cited as a “big win”, it is definitely a step in the right direction, moving from less punishment to more justice.8 However, it is of upmost importance than the Manitoba legal community continue to implement new strategies and look for further recommendations that will support this vulnerable group of individuals.

Elizabeth Corte, Judge en Chef, Cour de Quebec, concluded that “judges want more and more to make a difference, not only to judge and decide”.9 In response to the Criminal Justice System being ill0equipped to deal with people whose mental and cognitive illnesses impact their understanding of criminal law, it is imperative that judges continue to advocate for therapeutic jurisprudence and restorative justice to make a difference in people’s lives. It is naïve to suggest that therapeutic court rooms will eradicate these social problems completely. However, Manitoba lawyers now have the capacity to heal rather than harm and address the revolving door that continues to criminalize repeat offenders suffering from drug addiction, mental health and Fetal Alcohol Spectrum Disorder.