Aboriginal Legal Services will be at the Supreme Court of Canada on December 3. Senior Staff Lawyer Caitlyn Kasper will be representing ALS in a case called J.W. v Ontario. The case is about how a judge should decide a fit sentence for an Indigenous offender (referred to as J.W.) who has significant cognitive delays, including FASD, and who had been detained in a psychiatric facility before his sentencing.
ALS’ arguments will focus on the lack of culturally appropriate programming for Indigenous people in jails. Recent reports (like this one from the Office of the Correctional Investigator) show that the lack of programming is getting worse, even as the number of Indigenous people locked up in both provincial and federal jails rises.
ALS will also make submissions explaining that that the Truth and Reconciliation Commission recognized FASD as a consequence of the residential school system and called on all levels of government, including corrections, to undertake criminal justice system reform to better serve offenders with FASD. The TRC recommendations focused on increasing community supports to people who live with FASD.
Finally, ALS will make submissions about pre-sentence credit. This is the credit given to people who spend time in jail before they are sentenced. This is an important issue because Indigenous people are more likely to be denied bail and be held in jail before their case is heard. In this case, the judge gave less credit because the offender had been held in a psychiatric facility instead of a jail and the judge said that conditions in the facility were similar to the group home where J.W. lived. ALS will make submissions that judges should not use the living conditions of the person being sentenced to reduce the credit they are entitled too, since many Indigenous people live in inadequate conditions as a result of colonization.
We expect that the Supreme Court will reserve its decision until sometime in 2025.
Emily Hill
Senior Staff Lawyer