It seems almost every time you turn around, someone with fetal alcohol spectrum disorder (FASD) is making news headlines for committing some sort of a crime. An unfortunate, but common, secondary characteristic associated with FASD is that of routine contact with the law.

FASD is a form of permanent brain damage resulting from prenatal alcohol exposure. As such, many individuals with FASD struggle with concepts such as ownership, right and wrong, consequences and cause and effect. Challenges with gullibility, social acceptance, self-control, unemployment/poverty and substance abuse are also factors that regularly come into play. For those with the disability, these issues often predicate them to a life of crime, repeatedly landing them before the courts.

Increasingly throughout Canada, however, the courts and justice system are recognizing FASD and its relation to criminal activity. As more awareness and understanding of FASD is brought to light, police, lawyers, judges and other justice professionals are focusing efforts to mitigate the likelihood of individuals with FASD and other cognitive disabilities from reoffending.

Since 2014, Regina has been home to the Regina Mental Health Disposition (RMHD) Court. According to the Provincial Court of Saskatchewan website, the mental health court – held twice monthly – is “a collaborative model to coordinate treatment and criminal justice needs for individuals with mental health, FASD or cognitive issues who have been charged with a crime.” The website adds, the court “brings together health, social services professionals and criminal justice professionals, and is designed to improve the Court’s access to information so that it is better able to support and supervise offenders safely in the community. This may include comprehensive assessments, case management plans and providing services.”

One of the chief founders of the RMHD Court is Judge C.C. Toth. He shared his valuable insight to explain in more depth how the entire RMHD Court process works and how it benefits everyone.

The need for a mental health court

The RMHD Court is a restorative model, sentencing court (defendants must plead guilty and then follow case management plans) – with individuals referred to it by defense counsel, social agencies and Crown prosecutors. The overall goal is to deliver sentences that provide the participant with the greatest likelihood of success, while also considering and ensuring the public’s safety. Typically, participants in the RMHD Court receive community-based sentences with enforced conditions.

“The reality is that those who have cognitive issues – which include FASD or mental health issues that are tied to the criminal offending behaviour – often need access to services and resources. If they get access to those and are responsive, they may not pose a risk to the public, and we may be able to look at a sentence that properly reflects the degree of culpability,” explains Toth.

Keeping individuals with cognitive disabilities and mental illnesses out of jail

As mentioned, the RMHD Court typically hands down probation sentences to be served in the community, with offenders under strict supervision. Toth notes this is because the justice system is recognizing that individuals with FASD and other cognitive disabilities will often face a downward spiral when institutionalized – causing greater risk to the individual and public at the end of the day.

“My concern is the number of people that we’re putting into institutions who may be better and safely accommodated in the general population with supportive services – and who would probably deteriorate in jail,” he says. “By way of example, you may not get proper access to a psychiatrist, or if you have FASD you can be highly influenced as part of the disability and simply not get out of a lifestyle once you’ve entered jail.”

In addition to the direct benefits for offenders with mental health conditions, Toth notes the advantages presented to the rest of society. Cost savings via community sentences and reduced likelihood of recidivism reduce the public’s tax burden while improving overall safety, he says.

A smaller court system

The RMHD Court currently accepts a maximum of 20 participants a year. Toth says the court is purposefully smaller in order to maximize available resources and to enable optimal outcomes for those who are accessing it. In general there are usually about seven or eight individuals on each twice-monthly docket. The smaller court system allows everyone involved – clients and professionals – a greater ability to determine appropriate sentences, provisions and case management, the judge says.

“We can focus on a few clients and have a significant conversation with what can be done,” Toth explains, adding that compliance and comprehension of offenders are mutually inclusive.

Successes to date

Of the 13 files completed via the RMHD Court in 2014, 12 participants served their sentences in the community. As of March 2015, Toth says each of the participants has received jail time, however, all the sentences were reduced in reflection of their various mental health conditions and cognitive disabilities.

“These are people who would have gone into the jail and in all likelihood would have substantially deteriorated, been released and started a cycle of offending. Because of their conditions, they come out in much worse shape,” he says.

Who is not eligible for the court?

Those who are facing Criminal Code driving offences, sexual offences, offences with mandatory minimum penalties in the Criminal Code and other serious offences such as murder or manslaughter are not eligible.

Community stakeholders

The list of stakeholders is long. Included below are a few organizations that have provided staff and resources to help ensure the RMHD Court meets its requirements:

  • Regina Qu’Appelle Health Region
  • Street Worker’s Advocacy Project (SWAP)
  • Regina Community Clinic and FASD Centre
  • Saskatchewan Legal Aid
  • Various other non-profit agencies
  • Family members

More information:

For more information on the RMHD Court, please visit: www.sasklawcourts.ca/index.php/home/provincial-court/adult-criminal-court/regina-mental-health-disposition-court