Neuro-cognitive impairments and the criminal justice system: a case analysis of the impact of diagnoses of FASD and ADHD on the sentencing of offenders in the courts of three Canadian provinces

There has been growing awareness that persons with cognitive impairments, such as Fetal Alcohol Spectrum Disorder (FASD) and Attention Deficit Hyperactivity Disorder, (ADHD) experience difficulties functioning in society and more specifically, within the justice system after they come into conflict with the law. Very few studies, however, have focused on how such individuals are treated in the criminal justice system and more specifically, whether the justice system is properly meeting their needs. Impairments, such as FASD and ADHD, are organic brain disorders which the courts often fail to recognize. There is a paucity of research which examines the impact of ADHD and FASD on the accused in the Canadian courtroom. In order to determine whether the presence of ADHD and FASD exerts any effect on the final sentencing disposition in criminal cases, particular attention was paid to the role of judicial interpretation and expert testimony regarding these specific neuro-cognitive impairments. This research presents the findings of an exploratory case analysis of the impact of diagnoses of FASD and ADHD on the sentencing of offenders in the courts of three Canadian provinces: British Columbia, Saskatchewan and Ontario. The major findings reveal that there appears to be an overrepresentation of FASD cases in the Western provinces of British Columbia and Saskatchewan for both youths and adults, when compared with the Eastern province of Ontario. It was also observed that Aboriginal accused with FASD were over-represented in the courts, which was not the case for aboriginal accused with ADHD. Furthermore, when considering sentencing decisions in adult court, judges did not place as much weight on ADHD as they did on FASD. Also, it was observed that more often than not, no formal assessment of FASD was conducted during the court process. It is recommended that, when judges sentence offenders with FASD/ADHD, the focus needs to be placed on changing their living situation or social situation rather than fixating on their behaviour. Providing these individuals with structure, support and treatment - as well as surveillance and enforcement - in the community is more likely to secure a successful outcome for the sentencing process.