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39 Windsor Y.B. Access Just. 1 (2023)

handle is hein.journals/windyrbaj39 and id is 1 raw text is: Bound by Blame: Sentencing, Colonialism, and Fetal Alcohol Spectrum Disorder Sarah-jane Nussbaum* Gladue and Ipeelee send important messages to judges, but messages that have tensions within them that reflect the broader tensions of using the criminal law system to acknowledge ongoing state involvement in discrimination against Indigenous Peoples. The heart of the tension is that the criminal law system is built around assigning individual blame. I look closely at examples of judges struggling with inadequate tools to follow the Supreme Court of Canada's guidelines to acknowledge and redress the harmful impacts of colonialism within the constraints of their job of assigning individual blame. The result, unfortunately, is a consistent failure to recognize the Canadian state's ongoing role in colonial oppression. This article explores these tensions in the context of a particular manifestation: the judicial practice of blaming Indigenous mothers for the fetal alcohol spectrum disorder affecting their accused sons. The analysis illuminates the depth of the tensions of a common law criminal justice system in a colonial state: in the process of sentencing Indigenous offenders living with FA SD, judges both strongly contest, and subtly rely upon, harmful colonial logics. I propose that a standing to blame analysis could assist judges in identifying, and responding to, the state's own role in causing, or being complicit in, an Indigenous individual's experiences of injustice. When the state has played such a role, the state is notjustified in blaming the individual through the criminal law. The benefit of this kind of approach is that it would highlight the inappropriateness of the state's use of individual blame to respond to harms arising in the context of colonialism and inequality. Les arrets Gladue et Ipeelee envoient des messages importants aux juges, mais ces messages sont empreints de tensions. En effet, ils traduisent les graves problkmes lids a * Assistant Professor, Faculty of Law, University of New Brunswick. This article is adapted from, and builds on, portions of my doctoral dissertation, which I wrote as a PhD candidate at Osgoode Hall Law School, York University. I am deeply grateful to the members of my supervisory committee-Frangois Tanguay-Renaud, Benjamin Berger, and Jennifer Nedelsky-for their exceptional support and invaluable feedback on earlier versions of this work. For insightful, thoughtful, and helpful comments during my PhD defence, I am also deeply grateful to Debra Parkes, Carmela Murdocca, and Jeffery Hewitt. I also thank Sonia Lawrence, Vincent Chiao, Danardo Jones, Rahina Zarma, Dana Phillips, Asma Atique, Caitlin Murphy, and Sarah Buhler for helpful comments and conversations, and I am grateful to the two anonymous peer reviewers for their excellent comments and suggestions. Thank you as well to the editorial team of this journal for their thoughtful work. I presented earlier versions of this article at the Canadian Law and Society Association's Annual Meeting in 2019 and at the Early Career Feminist Workshop, hosted by the Centre for Feminist Legal Studies UBC and Canadian Centre for Legal Innovation in Sexual Assault Response in 2022, and I am grateful to the organizers and participants. For helpful comments at these events, I thank David Milward, Jillian Rogin, Sarah Burningham, Lisa Kelly, Tess Sheldon, and Kim Brooks. I also gratefully acknowledge the financial support of the Social Sciences and Humanities Research Council of Canada Doctoral Fellowship, York University's Elia Scholars Program and Susan Mann Dissertation Scholarship, Osgoode's Harley D. Hallett Scholarship, and the E.M. Culliton Scholarship administered by the Law Society of Saskatchewan. (2023) 39 Windsor Y B Access Just I

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