An Act to amend the Criminal Code (fetal alcohol spectrum disorder)

This bill was last introduced in the 41st Parliament, 2nd Session, which ended in August 2015.


Ryan Leef  Conservative

Introduced as a private member’s bill. (These don’t often become law.)


Defeated, as of Nov. 26, 2014
(This bill did not become law.)


This is from the published bill. The Library of Parliament often publishes better independent summaries.

This enactment amends the Criminal Code to add a definition of “fetal alcohol spectrum disorder” (FASD) and to establish a procedure for assessing individuals who are involved in the criminal justice system and who it is suspected suffer from FASD. It requires the court to consider, as a mitigating factor in sentencing, a determination that the accused suffers from FASD and manifests certain symptoms.


All sorts of information on this bill is available at LEGISinfo, an excellent resource from the Library of Parliament. You can also read the full text of the bill.


Nov. 26, 2014 Passed That the motion be amended by deleting all the words after the word “That” and substituting the following: “Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be not now read a second time but that the Order be discharged, the Bill be withdrawn from the Order Paper, and the subject matter thereof be referred to the Standing Committee on Justice and Human Rights and that the Committee report back to the House within four months of the adoption of this Order.”.

Criminal CodePrivate Members' Business

December 6th, 2016 / 6:35 p.m.
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Brigitte Sansoucy NDP Saint-Hyacinthe—Bagot, QC

Mr. Speaker, today I am pleased to speak to Bill C-235, an act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder).

I want to begin by saying that my NDP colleagues and I will support this bill. The NDP would like all parties in the House to work together to adopt this positive and long-overdue reform, which the previous government neglected.

Fetal alcohol disorder can have a range of effects on affected individuals. Those effects may include difficulty reasoning, inability to remember things, and trouble learning from past experiences and not repeating mistakes.

Bill C-235 defines the neurodevelopmental disorders associated with prenatal alcohol exposure. The spectrum of these disorders is commonly known as “fetal alcohol spectrum disorder” or by the acronym FASD, which I will use. This bill would amend the Criminal Code to establish a procedure for assessing individuals who are involved in the criminal justice system and who may suffer from fetal alcohol disorder. It would also include FASD as a mitigating factor in sentencing.

The bill also recognizes FASD as a disability in the federal correctional system. It also requires the courts to order people who have FASD to follow an external support plan so that they receive the support they need for their reintegration into society. It finally makes a consequential amendment to the Corrections and Conditional Release Act.

Bill C-235 is actually is a reintroduction of two past bills to better address the needs of individuals suffering from fetal alcohol syndrome disorder who find themselves in our criminal justice system. In terms of the trial process, this latest version of the bill allows the courts to order an assessment over the objections of the defendant and at any stage of the proceedings. We have supported every past incarnation of this bill, which seeks to better address the needs and circumstances of offenders suffering from fetal alcohol spectrum disorder in the criminal justice system.

In accordance with its order of reference of Wednesday, November 26, 2014, the Standing Committee on Justice and Human Rights studied a previous version of this bill, Bill C-583. The report of that study was tabled in May 2015. The report indicates conclusively that people with fetal alcohol disorder are overrepresented in the penal justice system. According to a study conducted by the Fetal Alcohol Syndrome Society of Yukon, 76% of the target population affected by fetal alcohol disorder had contact with the justice system.

Currently, our justice system does not leave room to take the individual's situation into account or to address it. It is therefore very important to support this bill, which needs to be passed quickly if we are to take people and their particular condition into consideration when we seek justice. We sincerely lament the fact that for years, the Conservatives ignored evidence and used a one-size-fits-all approach to impose mandatory minimum sentences that are costly, ineffective, and even unconstitutional.

The NDP is in favour of a more effective approach that is more suited to the victims. We have a real problem when it comes to identifying this disorder in those who have it. Wenda Bradley, one of the witnesses who appeared before the Standing Committee on Justice and Human Rights, said that “there are many people within our society who are affected by FASD but who have not been recognized and who keep circling in and out of the justice system”.

The problem is that this disorder is somewhat invisible. Those who have it look like you and me. However, they have special needs and that is why we must provide them with the appropriate support throughout the entire penal process.

In fact, when he appeared before the same committee, Rodney Snow had this to say:

...criminal law assumes that individuals make informed choices, that they decide to commit crimes, and that they learn from their own behaviour and the behaviour of others. Fourth, these assumptions are often not valid for individuals with FASD, so our criminal justice system fails them and it fails us.

By considering this disorder as a mitigating factor in criminal proceedings, we could better adjust sentences for these individuals. Studies of young offenders indicated, for example, that the sentence alone does not reduce criminal recidivism. On the contrary, it could even encourage it.

The passage of this bill would allow the criminal justice system to adapt sentences for these individuals so that they are as effective as possible. Moreover, a system would have to be put in place to identify children with fetal alcohol syndrome as early as possible.

The data I have collected on children with fetal alcohol syndrome demonstrate the extent of the problem in Canada. In Quebec, one in 128 children are affected by this disorder. In Ontario, one in 156 are affected. In Saskatchewan, it is one in 40. In the Northwest Territories, it is one in 33.

We must not wait until these individuals wind up in court for committing a crime before they are diagnosed with this disorder. An ounce of prevention is worth a pound of cure. Yes, including FASD as a mitigating factor in sentencing is already a big step forward. However, this disorder also carries other consequences. A number of FASD symptoms, such as impulsiveness, make it hard for sufferers to hold down a job or live a stable life, which can lead to poverty and homelessness.

Having spent many years working in community-based organizations, including over 10 years as executive director of Auberge du coeur Le Baluchon, I knew a few young people who had FASD who, as a result of the disorder, had developmental delays and were constantly having problems at school. These young people endure one failure after another, and often they do not even understand why. They think that they are to blame for their problems and that they are inadequate. They often have very low self-esteem, which creates a whole slew of other problems. They will be penalized throughout their lives by the lack of appropriate care and support.

I think that it is critical that the government do more to support other levels of government in order to help people who have FASD and invest in prevention and awareness.

As an NDP member, I support this bill, and I urge all my colleagues in the House to do the same. Let us think of all the young people suffering from FASD and bring in measures that could help them.

Rod Snow, former president of the Canadian Bar Association, agrees that everyone should support this amendment to the Criminal Code and to our correctional system so that they are appropriate and effective when it comes to fighting crime. The old approach is simply not working.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

May 8th, 2015 / 12:05 p.m.
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Françoise Boivin NDP Gatineau, QC

Mr. Speaker, indeed, in response to the 19th report of the Standing Committee on Justice and Human Rights, the official opposition is presenting a supplementary report regarding consideration of Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder).

I quickly want to thank all my committee colleagues, especially the hon. members for Nanaimo—Cowichan and for La Pointe-de-l'Île, who were responsible for this bill on behalf of the team.

Although we, along with the government, support the report, our main regret is that the bill introduced by the hon. member for Yukon was too watered down. We think it is a shame that the government persuaded that member to withdraw his bill, which would have represented a step forward and would really have been more effective than a report with extremely soft recommendations.

I would ask the government to pay particular attention to the recommendations submitted by the official opposition. These recommendations would move things forward much more quickly than the very simplistic recommendations made by the Conservative government members in the committee.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

May 8th, 2015 / 12:05 p.m.
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Mike Wallace Conservative Burlington, ON

Mr. Speaker, I have the honour to present, in both official languages, the 18th report of the Standing Committee on Justice and Human Rights in relation to Bill C-35, an act to amend the Criminal Code (law enforcement animals, military animals and service animals).

The committee has studied the bill and has agreed to report it back to the House without amendment.

I also have the honour to present, in both official languages, the 19th report of the Standing Committee on Justice and Human Rights in relation to the study on the subject matter of Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

Pursuant to Standing Order 109, the committee requests that the government table a comprehensive response to this report.

Drug-Free Prisons ActGovernment Orders

April 21st, 2015 / 11:10 a.m.
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Françoise Boivin NDP Gatineau, QC

Mr. Speaker, I have to seize this opportunity. Actually, I have lots to say about the government's silence.

That said, let me first deal with the positive. I want to thank the NDP members on the Standing Committee on Public Safety and National Security, because, especially over these past few months, they have had an enormous amount of work to tackle. I thank the member for Esquimalt—Juan de Fuca, the member for Alfred-Pellan and the member for Compton—Stanstead. I congratulate them on their hard work. I understand the frustration that can set in when you have to deal with bills like Bill C-12.

It can be frustrating to know that, clearly, we could do so much better. It can also be frustrating—as my colleagues have said before me—to see grandiose titles like drug-free prisons act, as we can see written in the bill itself under “Short Title”:

This act may be cited as the drug-free prisons act.

This raises so much hope. People read that and think that that would be wonderful. Then, reality sinks in. After seeing such a grandiose title, I was expecting a rather lengthy, comprehensive bill, since it deals with such a complex issue. Ultimately, with one clause on the bill's short title and just four substantive clauses, the Conservatives are claiming they can eliminate drugs from prisons. This reminds me of the time that they studied the issue of prostitution following the Supreme Court ruling. That bill also had a grandiose title, indicating that, with that bill, the government was going to put an end to prostitution and abolish it in Canada. Well done. There will never be any prostitution ever again. Only, that is not what I am hearing in the street. It remains a thriving industry. It may be done differently, but it still exists.

As I was soaking up my colleagues' speeches—thank goodness they are here to speak in the House—I was reminded of what I dealt with over the past two weeks in my riding. Being in my riding is a much more positive experience than being in the House. Those watching us must be as disheartened as we ourselves can be. Sometimes we get the feeling we are howling in the wilderness, and this is one of those times because we really get the sense that just one side of the House is talking about this, and people are noticing that.

We all know, because lots of people were talking about it, that last week was National Volunteer Week. I made a lot of contacts and met with lots of people in Gatineau who are doing amazing work on all kinds of issues, such as helping people with drug addictions and helping former inmates reintegrate into society.

I sat down with these people and talked to them about the Conservative agenda. I explained to them that I would be giving a speech this week on the fact that the government says it will eradicate drugs from prisons. Mr. Speaker, you cannot imagine how much people laughed at that. They did not take me seriously. They asked me just how the government planned to do that.

I replied by reading clause 2:

If an offender has been granted parole under section 122 or 123 but has not yet been released and the offender fails or refuses to provide a urine sample when demanded to provide one under section 54, or provides under that section a urine sample for which the result of the urinalysis is positive, as that term is defined in the regulations, then the Service shall inform the Board of the failure or refusal or the test result.

They said, “All right, and then what?” I told them about clause 3:

Section 124 of the Act is amended by adding the following after subsection (3):

(3.1) If the Board is informed of the matters under section 123.1 and the offender has still not yet been released, the Board shall cancel the parole if, in its opinion, based on the information received under that section, the criteria set out in paragraphs 102(a) and (b) are no longer met.

They said, “All right, and then what?” I told them about clause 4:

The releasing authority may impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society. For greater certainty, the conditions may include any condition regarding the offender’s use of drugs or alcohol, including in cases when that use has been identified as a risk factor in the offender’s criminal behaviour.

They said, “And then what?” I told them about clause 5:

The Governor in Council may make regulations providing for anything that by this Part is to be provided for by regulation,...

Members will understand that they laughed because they wondered how this would make prisons drug-free. They asked me to explain how that would happen.

They asked me to explain how that would happen. I told them that there was no explanation. This bill does absolutely nothing, aside from cancelling someone's parole. No one can be against virtue, which is why there is unanimity on Bill C-12. However, this government is once again missing an opportunity to do something good.

For four years now, the government has been giving us bills with fancy titles that sound great but actually accomplish very little. I think that people are starting to realize this. The best example may be Bill C-51. All of the polls showed how the New Democratic Party was seen to be on the wrong side of the fence: we supported terrorists, we were not to be taken seriously when it comes to security, and the government was right.

Those who are a bit more timid, such as the third party, the Bloc Québécois and others, jumped on the Conservative bandwagon. Everyone was unanimous because they thought it was the right thing to do. When the members opposite and the third party remain silent on a bill like this, I tell myself that the NDP is doing the right thing. At report stage and third reading, we should have something to say on behalf of our constituents. I am not saying that that is necessary for all bills, but when it comes to a bill about eradicating drugs in prisons, I cannot believe that the members of the House, who represent Canadians, have nothing to say about their respective ridings.

All of us, or almost all of us, have detention centres, prisons or penitentiaries in our ridings. We can talk to our constituents, our street outreach workers, the people who take care of those with drug addictions and those who take care of inmates. If we really want to make our communities safe, we need to know what we are talking about. We have to be able to read a bill to our constituents without having them laugh at us and ask us if we are serious and if we really believe that a bill will solve the problem. Where is the money for rehabilitation? Where is the money for programs? The Conservatives cut that funding over the past few years. We are constantly being told that we cannot be serious.

We are taking a stand. We are doing the work in committee. We are unequivocally telling the government that this does not make sense and that it is ridiculous to insult people by trying to sell them this. I am sure that this afternoon we will see even more rhetoric about what they are doing. I cannot wait to see what kind of budget the government will allocate to public safety and justice. Why? Because I still think—and I will be surprised if the government proves me wrong—that this government spends more on ads saying how wonderful and extraordinary it is than on programs that could help drug addicts in prison. It is one thing to be able to prove that someone consumed drugs, with a blood and urine test, and to cancel that person's parole, but do we simply want to punish that person or do we want to ensure that he will not continue to have drug problems after he is released? That is what we should be looking at.

This government has little interest in such things. That is ironic, because at the Standing Committee on Justice and Human Rights, one of the first bills that came to us from the Conservative benches, Bill C-583, covered the problems related to fetal alcohol spectrum disorder. It was a meaningful bill that showed it was possible to do something other than punish. It looked at a disorder, one from which many people in prisons suffer, and tried to find solutions tailored to their needs and their problems. There was unanimity, which was nice, but what did the government do? It withdrew the bill. It forced the MP who introduced it to withdraw it for further study. We took a close look at it in the time we were given. Everyone knows that the Conservatives do not give us much time for thorough study. The study will probably produce some conclusions. I am eager to see the final recommendations that will be submitted to the House.

Considering our past experiences with our colleagues across the aisle, I would be willing to bet that the recommendations will simply encourage a more thorough study and therefore do absolutely nothing. This is really just like what the Liberals used to do before them. It is mind-boggling how similar they are; there is no difference. It is astounding.

It is extremely frustrating because, actually, what is happening here today is a perfect example of what is leading the people of Gatineau to ask, when I meet them, what the point of Parliament is. People here do not even have five minutes to stand up in the House and at least explain how the four little clauses I read earlier are going to achieve what the title says, that is, ensuring that prisons are drug-free. Instead of telling us how wonderful and perfect they are, the Conservatives could simply tell us how they believe these clauses will be so successful, when everything else has failed. It is very frustrating.

Fortunately, things are balanced in Canada. Our democracy has an executive branch, a legislative branch, and a judicial branch. At present, unfortunately, Canadian democracy has to rely too heavily on the judicial branch to rebalance the principles of law, which those on the Conservative benches should be familiar with. The Conservative MPs all have the advantages of the Department of Justice: they can consult people ad nauseam and get legal opinions from the top legal minds in Canada. They do not even take advantage of that. They keep passing bill after bill that gets hammered in the courts all the way to the Supreme Court.

Some denigrate the Supreme Court by claiming that it is engaging in legislative activism. That is not the case at all. The Supreme Court tells us legislators that we cannot do certain things, and reminds us that there are laws in this country and that we have a Constitution and a Charter of Rights and Freedoms. It tells us that we can go ahead and pass the legislation that we want, that it is our highest prerogative, but that there is still a framework to be respected. If people are not satisfied with this framework, then it is up to us as legislators to change that. However, we have to work within the Charter of Rights and Freedoms and the Constitution. This is not about judicial activism.

I will digress for a moment to talk about Edgar Schmidt, a former public servant who is involved in a case against the Attorney General of Canada that is currently before the Federal Court. He said that he received orders not to follow the charter at all or to just aim for 5%. A 5% chance of winning was enough to move forward. That is ridiculous. This government does not take its role as the executive and as a legislator seriously. That leads to the results we get when we end up before the Supreme Court of Canada.

Bill C-12 will not end up before the Supreme Court of Canada. That is clear. We would not support it if that were the case. Nevertheless, in my opinion, this bill will not accomplish what it is supposed to. Unfortunately, the bill will only delay the action that could be taken to do much better. If only the government would listen to the heartfelt pleas of the people who told us in committee what the government should do instead of cutting rehabilitation and support programs for people with serious drug addictions, then we might achieve better results.

As the Commissioner of Penitentiaries told us, given all the bills with longer and longer mandatory minimum sentences, prisons have no incentive to place these people in rehabilitation programs until just a few years before they are released on parole. Take for example someone who is serving a sentence of seven or 10 years. That individual will not necessarily be placed in a rehabilitation program immediately. The prison might wait until that person has been incarcerated for five years or until he has only one or two years left before he is eligible for parole. What kind of hardened individual have we created in the meantime?

If we claim to want safer communities, what is our responsibility as legislators? When it is time for these people to leave prison, I would like them to be able to reintegrate into society. What will happen if we do nothing to help them? This is not about being a bleeding heart. I would say that there is a certain measure of self-interest. I want to make sure that these people will not be a threat to my family, my friends, my community or me. We must implement the kinds of measures that will achieve these results. This government does not see it like that and, after four years, we are familiar with their approach. We were not born yesterday. This government likes to use grand titles.

This afternoon, we will probably hear about tons of budget measures that earned us the Conservatives' ridicule just for mentioning them. The Conservatives are going to appropriate them to further their interests and to strut around in the next few months, in a manner that I will not even describe, simply to boast about their magnificent agenda, as though this was the best government Canada ever had. They will want to make everyone forget all those years in the past when they were unable to bring forward a balanced budget.

All the Conservatives have done, in fact, like the good economists they are, is to add to the national debt, after everyone had tightened their belts under the Liberal government of the 1990s. That will not stop them from having a splendidly grand title for their budget, as they did for BillC-12.That is unfortunate. I do not know whether this is what the Conservatives are looking for, or whether it just reaches a portion of the population that is on their side. However, even for those who claim they are tough on crime and believe what the government says, I would tell them to go and read the bill. It is worth doing. I was able to read the bill designed to get drugs out of our prisons in exactly one minute. That gives you a good idea.

If someone listening to me believes that Bill C-12 will help solve the problem, I take issue with that. We should talk because, seriously, no one in their right mind will believe that Bill C-12 will help eliminate drugs from prisons. This is what I call misleading the public.

In my opinion, it is shameful for a government that otherwise proclaims itself to be serious to think it will succeed in slipping this “quick fix” past Canadians. Again, it is unfortunate that when bills have some appeal, like Bill C-583 and others, the government succeeds, through all kinds of procedural tactics, in derailing it.

Moreover, when the Conservatives do not want us to talk too long about something, they bring in time allocation motions. People are no longer fooled, and I saw that firsthand on the ground over the last two weeks. People are aware of this. I am comfortable with that, because the message I am sending to the government is what we have succeeded in doing with BillC-51. That bill had a fairly strong measure of support when tabled in the House, but that is no longer the case. People are not fooled. They understand, because we explain it to them. We are doing our job as the official opposition. We do not do so just on the basis of polls. We do so on principle. We have stood firm.

Some parties may have changed their ideas along the way when they saw they were perhaps on the wrong side of the fence, like the Bloc Québécois. Others, like the Liberal party, decided to persist in their error and continue to support the Conservatives. That is not surprising, because they are much alike.

That said, people are not easily fooled. We too will have the time to explain what is going on, although we perhaps do not have the same budget as the Conservative government, which will spend millions of dollars, not to say hundreds of millions of dollars, on advertising during our hockey games, for example, to tell us how great its budget is.

However, people are not fooled, and they will be able to tell this government that the time has come to stop mocking them and making them believe it is doing things that it does not do at all.

March 25th, 2015 / 4:30 p.m.
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Ève Péclet NDP La Pointe-de-l'Île, QC

Thank you very much, Mr. Chair. I also thank the witnesses for being here with us today.

My first question is for Chief Alexis.

It was interesting to hear what you had to say about the discretionary power of judges. You are not the first person before the committee to have said that mandatory minimum sentences undermine judges' discretionary power to personalize the sentence.

Howard Sapers, the Correctional Investigator of Canada, said that that there was a contradiction in the Criminal Code. There is a requirement that all of the circumstances be taken into account in sentencing. However, at the same time, minimum mandatory sentences are imposed.

The Canadian Bar Association proposed an amendment to Bill C-583 that would introduce an exemption in section 718 of the Criminal Code to give the courts the discretionary power to set aside the mandatory minimum sentence when it would cause an injustice.

My colleague asked you a question on that, but you did not have time to reply to it. Do you think that principle should have precedence over mandatory minimum sentences in regard to certain problems such as fetal alcohol spectrum disorder, mental troubles, or consideration of the Gladue principle?

March 25th, 2015 / 3:55 p.m.
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Françoise Boivin NDP Gatineau, QC

Thank you, Chair.

Thank you to all witnesses here today. It was very enlightening and informative, I must say.

I thank you, Ms. Ross, first of all because of all the work you do. I think it's very important, and sharing your story helps us to understand.

I will keep in mind what you said about how we need more diagnostic centres. I look at the legislation, which in quotation marks is not necessarily even “in front of” Parliament anymore. I think this is important because we're in discussion mode, and we'll make recommendations. Sometimes, maybe it's my age, I get impatient because I think we were all pretty much aware of the situation, but I always learn something and so I'll keep that positive. At the same time, I don't think we'll be able to move it as far forward in this legislature as I wish we could.

However, the point on more diagnostic centres is a very important one because if, at some point in time, we do have a piece of legislation that comes into force, has an impact on the Criminal Code, and changes different things, it will be all fine and dandy but there are a lot of courthouses in this country. It's a big country, and if all the centres for diagnosis are in certain areas, there will be a lot people who will not be able to benefit from this situation. I'm a strong believer that justice should be rendered the same way for everybody.

I think in your testimony, there was some emphasis made by Professor Pei—I hope I say your name right, but believe you me, the way anglophones say my last name, I'm sorry, but not that much.

Anyways, Professor Pei, you were talking about moving beyond a one-size-fits-all system and the fact that we need more diagnostic centres. I am addressing my question maybe to you. How many of those exist in Canada?

Second, the more I hear about FASD, the more I wonder if section 16 of the code in any shape or way could find application because 16.1 says the following:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that renders the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

I am curious to hear your view on the matter.

For Chief Alexis, thank you very much for the points you made, which were very, very important, because I was also going to say that mandatory minimum sentences defeat the purpose of Bill C-583. I understand from your recommendation, and I'm sure the other members on the panel today would agree with you, that Bill C-583 or whatever shape it will come back in during a new legislature should give precedent to this over any mandatory minimum sentencing.

Those are my questions.

March 25th, 2015 / 3:50 p.m.
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Chief Cameron Alexis Alberta Regional Chief, Assembly of First Nations

Thank you very much.

Boozhoo. Tanisi. Aaniin.

I want to thank previous speakers, and also to thank the House of Commons committee on justice and human rights for allowing us to participate in this very, very important presentation.

My name is Cameron Alexis. I am the regional chief for Treaty 6, 7, and 8 in Alberta, and I lead the work on behalf of the Assembly of First Nations executive in the area of justice. I was an RCMP officer for 23 years.

I am honoured to speak to you today about this private member's bill, Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

The Assembly of First Nations has always stressed the importance of flexibility in sentencing. First nations are overrepresented in the criminal justice system. While our population is approximately 4% of the general population, we make up almost a quarter of the present criminal justice system population and over 50% in the western provinces. This current situation is the result of many factors that this committee is well aware of, including colonization, disposition of lands and culture, the intergenerational impacts of residential schools, and the failure of the child welfare system, to name a few.

Currently, paragraph 718.2(e) of the Criminal Code requires that the particular situation of aboriginal offenders be considered at sentencing and requires that a report outlining the individual's background—also known as the Gladue report, from British Columbia—be provided at pre-sentencing.

Bill C-583 would add a definition of fetal alcohol spectrum disorder, or FASD, to the Criminal Code, as well as other provisions for FASD assessment, evidence provisions, and sentencing considerations for accused with FASD. Adding these new provisions to the Criminal Code would allow judges to identify and consider the effects of FASD in the sentencing of the accused.

Some first nation communities have experienced disproportionately high rates of FASD, and the proposed amendments could provide additional context to sentencing and act as a supportive companion to the statement of purposes and principles of sentencing set out in section 718 of the Criminal Code.

We are concerned that recent amendments to Criminal Code requiring mandatory minimum sentences remove from sentencing judges the discretion to appropriately and effectively determine which sentence can best balance all the fundamental objectives of sentencing. Therefore, to achieve its objectives, the bill would require provisions making the mandatory minimum sentencing provisions subject to the proposed provisions of Bill C-583. Otherwise, the bill would fail to provide judges the required discretion to provide creative sentencing, better reflecting the situation and the capacity limitations of accused persons with FASD.

The current criminal justice system has profoundly failed first nations. It has done so in failing to respect cultural differences, failing to address the system's biases against our people, and denying them an effective voice in the development and delivery of service. The introduction of mandatory minimum sentences furthers this fundamental miscarriage of justice and the failure to respect and uphold aboriginal treaty rights and human rights.

In effect, the justice system is investing in the present system instead of preventative measures and proper supports and services for those suspected of and/or diagnosed with FASD, rights including court-ordered FASD assessments as long as the client is not inhibited by lack of funds for costly diagnoses and also that the courts ensure clients are provided with proper supports that respect their rights and those of their biological mothers. This bill cannot have the needed impact while the unique considerations of first nations, including those with FASD, are subject to non-discretionary sentencing conditions.

We have seen the damaging effects of colonization and the residential school system in our communities. The current criminal justice system has consistently and profoundly failed first nations. Without the proper modifications of this bill, it will ensure that this unfortunate legacy continues.

In closing I just want to add a few quick things.

I want to thank all of you for your valuable interventions. I really thank the speakers before me. I also want to thank Ryan Leef from the Yukon for stepping up on this.

As first nations, we continue to struggle with this, and I know from sentencing circles and restorative justice initiatives that we, by and large, cannot factor in FASD. Our people continue to suffer and correction is not the answer. We need prevention.

I deal with people in my own family and in my own community with this almost on an everyday basis. You have to repeat yourself more than several times to even get your message across. We need a different mechanism, and I support the amendment to this bill.

Respectfully, thank you, members of the committee.

Ish nish. Thank you.

March 25th, 2015 / 3:30 p.m.
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The Chair Conservative Mike Wallace

Ladies and gentlemen, let me call this meeting of the Standing Committee on Justice and Human Rights to order.

This is meeting 68, and according to the orders of the day, pursuant to the order of reference of Wednesday, November 26, 2014, the subject matter is Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

We have four witnesses with us today, but the final witness, Ms. Bradley, from the Fetal Alcohol Syndrome Society Yukon, has already presented. We weren't able to get her for the question-and-answer period, so she has kindly rejoined us today.

We have three presentations of approximately 10 minutes each.

Our first presenter, Ms. Ross, is from the Fetal Alcohol Spectrum Disorder Group of Ottawa. By video conference from Edmonton, we have, as an individual, Ms. Pei, associate professor at the University of Alberta. As well, from the Assembly of First Nations, we have Mr. Alexis, Alberta regional chief. Then, of course, from the Yukon, we have Ms. Bradley, also by video conference.

With that, we'll get started.

Ms. Ross, the floor is yours.

Justice and Human RightsCommittees of the HouseRoutine Proceedings

March 24th, 2015 / 10:45 a.m.
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Mike Wallace Conservative Burlington, ON

Mr. Speaker, I have the honour to present, in both official languages, the 16th report of the Standing Committee on Justice and Human Rights in relation to the subject matter of Bill C-583, an act to amend the Criminal Code in relation to fetal alcohol spectrum disorder.

The committee requests a 45-day extension to consider it.

March 23rd, 2015 / 5:45 p.m.
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Ève Péclet NDP La Pointe-de-l'Île, QC

My second question has to do with the $4,000 we have to pay to assess someone. How does the cost to the state for assessing people and redirecting them to good resources compare with just saying, we're not going to assess them and we're going to put them in jail? I would be interested in knowing which policy is better for the state to have.

It's really interesting because my second question would be for you, Ms. Cook. I have a letter written to the committee by the Canadian Academy of Psychiatry and the Law. I'm going to read it in French because I have it in French. It says:

The proposed distinction in Bill C-583 is not supported by psychiatric diagnostic standards. In fact, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association, the North American authority in diagnostics, does not recognize FASD as a separate or distinct disorder, but rightly includes it with other forms of developmental delay.

I would just like to have your comments on that. Have you read the definition in the bill and what would you say about this paragraph in the letter?

March 23rd, 2015 / 5 p.m.
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Rodney Snow As an Individual

Thank you, Mr. Chairman.

I am, as you say, Rod Snow. I work as a lawyer in Whitehorse in the Yukon, but I appear today as an individual and not on behalf of any client or organization.

Let me start with full disclosure. I'm not an expert. I'm not an expert in criminal law and I'm not an expert on FASD, but over the last 10 years I have taken part in the national conversation on the treatment of individuals with FASD in the criminal justice system. Today I want to tell you about some of what I've learned and about how you can make a difference, I think, in the lives of individuals with FASD.

At the risk of repeating some of what you may have heard already, let me start with some of the key facts that have framed elements of this national conversation. First, FASD is a permanent organic brain injury. There is no cure, although outcomes can improve with treatment. Second, characteristics of individuals with FASD include impaired executive functioning, lack of impulse control, and difficulties understanding the consequences of their actions, so they often don't learn from their mistakes. Third, criminal law assumes that individuals make informed choices, that they decide to commit crimes, and that they learn from their own behaviour and the behaviour of others. Fourth, these assumptions are often not valid for individuals with FASD, so our criminal justice system fails them and it fails us.

So what do we do?

I start from the proposition that nobody is more morally innocent than a baby born with a disability. When that baby grows up and is unable to meet a legal standard of behaviour because of his or her disability, the state does not deliver justice by punishing, yet that is what we do in Canada.

The tools that Parliament has given crown counsel and judges are limited. If you speak to people who are working on the front lines, you will hear the same story over and over again. It goes something like this. They will tell you that too often children with FASD start out in the child welfare system. They proceed into the youth criminal justice system as teenagers, and then move into the adult criminal justice system, where the cycle starts all over again. They know that jail time will not rehabilitate, deter, or cure the individual with FASD, but they have few tools to stop this revolving door. Eventually everyone gets out, but the time in jail has done little to help the individual or to improve public safety. This is where you come in, as members of Parliament. We need you to support changes to the Criminal Code and our corrections system so that they are smart and effective on crime.

We know that the old approach is not working. We need a new one that's designed to succeed. I think it was Einstein who said that doing the same thing over and over again and expecting a different result is the definition of insanity. There's a broad consensus that law reform is needed. In 2010, with the support of crown prosecutors and defence lawyers, the Canadian Bar Association supported initiatives in this area by federal, provincial, and territorial justice ministers and called for measures to decriminalize FASD. Then justice minister Nicholson quickly said FASD is a huge problem in the justice system—“huge problem”, his words, not mine.

Provincial court judges support the bar association's call for reform. FPT justice ministers committed to dealing with FASD as an issue of access to justice, and in August of 2013 Justice Minister MacKay made a public commitment to act on this issue. So I was excited when Ryan Leef introduced Bill C-583.

Bill C-583 has three main elements. First, it defines FASD. Second, it allows a judge to order an assessment, and third, it allows FASD to be considered a mitigating factor in sentencing. All three elements are important, but I want to draw your attention to the section that allows a judge to presume that the cause of FASD is maternal consumption of alcohol if there is good reason why that evidence is not otherwise available. We want to avoid situations where everyone knows that FASD is involved, but an assessment remains inconclusive because this evidence is missing.

I don't have to tell you, Mr. Chair, that Bill C-583 received support from all parties. I sat on the Yukon legislature when Yukon MLAs unanimously passed an NDP opposition motion to support Bill C-583, and I understand that MP Casey has introduced Bill C-656 that adopts much of Bill C-583 and goes further in the areas of external support orders and corrections reform.

I was disappointed when Bill C-583 was withdrawn. Many of us thought that, with support from all parties, it had a chance. Now we turn to you and your committee, because we feel that it's the best hope for reform. I urge you to listen, and listen carefully. Please consider action that can be taken to prevent FASD, to encourage assessments, and to improve outcomes for those in the federal penitentiary system.

I also encourage you to hear from people with this disability and their families. People with disabilities have often said, “There should be nothing about us without us.” When you report, please do not confuse the need for more medical research or scientific study with the value of Bill C-583. Do not say that this is a complex, intractable issue, and therefore, Bill C-583 or its equivalents need more study before action. It needs more political courage and leadership.

I think Ryan Leef has done his part, with limited resources. It is now time for Minister MacKay, with the resources of the Department of Justice at his disposal, to honour his 2013 commitment to act.

When you report, say that the criminal law needs to be reformed and that Bill C-583 is a good start. Please say that unequivocally and unanimously. Do not sacrifice the good in the pursuit of the perfect. If you back Bill C-583, you'll make a positive difference in the lives of individuals with FASD.

Parliamentary leadership matters. By doing so, you will encourage further action in our communities, provinces, and territories, and that, too, is good.

Thank you very much.

March 23rd, 2015 / 4 p.m.
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Sean Casey Liberal Charlottetown, PE

Thank you, Mr. Chair.

Madam Boivin asked you about the recommendations of the Canadian Bar Association from a couple of years ago. I'd like to focus on one of those recommendations, because it is directed right to Corrections Canada and also because it wasn't in the piece of legislation that was withdrawn; Bill C-583 does not contain any reference to it.

Let me read to you the recommendation from the Canadian Bar Association of August 2013:

The Corrections and Conditional Release Act should be amended to expressly require the Correctional Service of Canada to accommodate FASD as a disability when providing correctional services to inmates who have or likely have FASD.

Could I hear from you concerning your thoughts, recommendations, opportunities, limitations, or the advisability of including that recommendation in legislation—whatever comments you have with respect to that recommendation from the CBA, please?

March 23rd, 2015 / 3:50 p.m.
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Françoise Boivin NDP Gatineau, QC

So let me come back to the parallel I was drawing with the Canadian Bar Association's five recommendations. They urged the federal government to amend the Criminal Code based on five principles: that legislation should define FASD (that is in Bill C-583); that courts should be authorized to order assessments (that is also in Bill C-583); that FASD should be a mitigating factor in sentencing: that courts should be authorized to make orders for external support plans for those with FASD; and that Correctional Service Canada should be required to accommodate those with FASD receiving sentences of two years and more.

That background seems well reflected in Mr. Leef's bill. It seems to include it all, in an overall way, starting from the time when a person enters the legal system because they are charged with something.

March 23rd, 2015 / 3:45 p.m.
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Françoise Boivin NDP Gatineau, QC

But, Mr. Zinger, Bill C-583 provides for that proactive work, not just the punishment aspect of the sentence. It is also a matter of what aspects the judges see. Bill C-583 goes further; it is much more complete. The matter of the syndrome can be included and put before the court, which will then adapt the sentence.

Is that not a new way of working proactively?

March 23rd, 2015 / 3:45 p.m.
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Françoise Boivin NDP Gatineau, QC

But how do you explain that? As I understand it, you do not think that Bill C-583 will change a thing. As the Aboriginal prison population has increased, it seems that the principles of the Gladue case have not borne fruit. That is what I understand from Mr. Sapers' presentation.

Has there been any analysis of the reasons why it has not worked? Is it because it has not been talked about during the trials, because the courts have not considered it? Do we have any data, or do we take it for granted that, notwithstanding the Gladue case, courts just send people to prison? Does that suggest that, even with FASD, the principles of Bill C-583 would not change anything at all? It seems to me that the statements of principles in the bill are pretty solid.