Canada's Aboriginal People, Fetal Alcohol Syndrome & the Criminal Justice System1

By Bracken, Denis C. | British Journal of Community Justice, Autumn 2008 | Go to article overview
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Canada's Aboriginal People, Fetal Alcohol Syndrome & the Criminal Justice System1

Bracken, Denis C., British Journal of Community Justice


This paper is an examination of fetal alcohol spectrum disorder (FASD) and the related conditions of fetal alcohol syndrome (FAS), fetal alcohol effects (FAE), and alcoholrelated birth effects (ARBE)3 as they pertain to the Canadian criminal justice system, and specifically to Aboriginal Canadian offenders. FASD is considered a problem for the criminal justice system in general, but the over-representation of Aboriginal persons at various levels of the Canadian system, in particular in the Prairie Provinces of Canada (Alberta, Saskatchewan and Manitoba) places an additional factor into any consideration of the issue. This is further complicated by the fact that, as suggested by Tait (2003), it is important to recognize the 'secondary disabilities' identified as part of FASD in the context of those social characteristics that are the result of colonialism and related policies of discrimination, attempts at forced assimilation and economic marginalization experienced by Aboriginal people. Thus the high incarceration rate of Aboriginal people which many see as an outcome of colonialism, combined with common stereotypes of the "drunken Indian" may lead one to assume that FASD is a major contributing factor to Aboriginal peoples' over-involvement with the criminal justice system. What is really the issue at hand is the relationship between FASD and incarceration of Aboriginal people, not as an indicator of the connection between alcoholism addiction and Aboriginals, but rather as a sign that incarceration of Aboriginal people is connected to discrimination, and broader health and social development issues (the outcome of colonialism) and which may also include FASD. The problems of identifying offenders with FASD in the criminal justice system (and in particular the prison system), presents as disproportionately a problem of Aboriginal people. This must be taken into account when developing policies and practices around FASD and criminal justice.

Key Words: Aboriginal people, criminal justice, discrimination, fetal/foetal alcohol disorder/syndrome, health


This paper will begin with a discussion of FASD and some of the problems encountered with identifying it in both young people and adults. It will then consider some of the challenges posed by FASD and the criminal justice system, challenges not unlike those presented by other persons with cognitive deficits. This will be followed by a discussion of the over- representation of Aboriginal persons in the criminal justice system. It will then examine briefly the literature on the health of Aboriginal people in Canada, and the connections between the impact of colonialism and health. FASD is an important aspect of the relationship between health issues for Aboriginal peoples and health research. The paper concludes by discussing policy and practice issues as they relate to identifying and providing support for those with FASD among Aboriginal peoples in the criminal justice system

What is FASD?

Foetal Alcohol Spectrum Disorder covers a range of conditions resulting from foetal exposure to alcohol. It is:

a serious neuro-developmental and/or physical disorder that can result in disabilities that have lifelong physical, mental, behavioural and social consequences. FASD is caused by prenatal exposure to alcohol. The amount of alcohol necessary to cause FASD remains unknown... Alcohol crosses freely through the placenta. The first 3 to 7 weeks after conception is the period when alcohol can cause the greatest physical abnormalities. However, alcohol continues to impact the foetus throughout gestation, particularly the developing brain (Stade, et al. 2004).

Health Canada (Canada, 2003 ) follows the generally accepted view about the incidence of FAS. It is thought to occur in the range of 1 to 3 out of every 1000 live births. The range of alcohol-related disorders is estimated at 9.1 per 1,000. This rate is widely used to estimate the rate of FAE.

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