Bill C-583 (Historical)

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

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.

Criminal Code

[Ryan Leef, Conservative, Yukon, YT]

moved that Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be read the second time and referred to a committee.

Mr. Speaker, it is a pleasure to rise and speak to Bill C-583.

However, before I do that, I would like to take one more opportunity to express my sincerest condolences to the families of the members of the Royal Canadian Mounted Police who lost their lives yesterday. I would also like to express, at least from my point of view and the point of view of the member for Kootenay—Columbia, who is a former member of the Royal Canadian Mounted Police, that our thoughts and prayers are with the members of the RCMP, their families, and the entire community of Moncton. We hope that there is a fast and safe resolution to the capture of the suspect.

Before I begin on Bill C-583, an act to amend the Criminal Code in respect to fetal alcohol spectrum disorder, there are a few requisite messages of thanks that I need to put out there. First and foremost, I must thank Rod Snow and Heather MacFadgen of the Yukon division of the Canadian Bar Association. Both of them spent a great deal of time and effort, long before this crossed my radar as a member of Parliament, in diligently forwarding the cause of people with FASD, particularly as it relates to justice issues and what we can do. My gratitude goes out to them for helping it get this far and for their continued effort and support.

I would like to thank the Options for Independence Society in the Yukon, which has created a great social support network, providing affordable and available housing. It has also created the appropriate and needed social support networks in our territory for people living with FASD to make sure, in the first instance, that they do not find themselves in conflict with the law.

Of course, I must thank the Fetal Alcohol Syndrome Society Yukon, which has done a lot of the heavy lifting on this file to make sure that people who are disadvantaged and living with FASD find the opportunities that they need and clearly deserve in our society.

There are a host of other groups and organizations nationally, internationally and here in the North American continent that have reached out to me. A total of some 1,500-plus stakeholders have reached out to me directly in my office to offer guidance and suggestions, and just to be there to support what I am trying to achieve in Bill C-583. To each and every one of them, too many to list, I give my thanks.

I would also like to extend my gratitude to the legislators of the Yukon Territory and the Northwest Territories, both of which recently passed unanimous motions calling on the Government of Canada to support Bill C-583. I would say that it was done in an admirable and non-partisan manner.

In the Yukon, the motion was tabled by Liz Hanson, the leader of the opposition, and supported by Minister Nixon, the hon. minister responsible for justice in the Yukon. I appreciate their ability to come together in a non-partisan fashion and provide support and important information to the Yukon through their legislature about the challenges of people living FASD as they relate to the justice system.

Getting to Bill C-583, what does my private member's bill propose? It would do three fundamental things.

It would define FASD in the legal context. I say that not as a word of caution, but as a word of explanation. Sometimes we have social definitions and sometimes we have medical definitions of words that do not always mirror each other or connect properly. What I have tried to do in Bill C-583 is come up with a definition that would meet the test of the legal mind and the legal definition. Sometimes, there is a little bit of variance between social definitions and medical definition, but importantly, I have seen broad public support, including group and organization support, for the definition that I have arrived at.

That is an important step, because in the absence of a definition, the courts are very much limited in their judicial notice of being able to account for what I will get into as somewhat of an explanation for criminal conduct. It is not an excuse, and I will talk about that in a little more detail as I get into subsequent sections of my bill.

The first part is how the bill defines FASD. Second, it would allow the court to order assessments where they have reasonable grounds or evidence to believe that FASD may be present in an accused, and that it contributed to the offence or criminal conduct.

Finally, the bill seeks to allow the court the discretion to consider FASD to be a mitigating circumstance in the sentencing phase. I will touch on that just a little bit, to explain any confusion that might exist among the general public about what mitigation means.

It is important to understand that mitigation is not absolution. It is not an excuse for poor behaviour, but it is an explanation. I am going to talk about some of the symptoms of FASD that make this bill warranted and reasoned when we consider diminished responsibility and mitigation, and why mitigation could be so important for people and for the courts to have with regard to FASD.

One could ask why we would choose FASD, and so I will give some concrete facts on that.

FASD is one of the leading causes of brain disorders in our country, affecting nearly one in a hundred Canadians at birth. That is an alarming rate. Right now, we know that nearly 60% of people living with FASD will at some point run into conflict with the law, which is also an alarming figure.

I want to be clear that FASD does not instantly and immediately equate to criminality. Indeed, it does not. I was at a conference not too long ago in Vancouver where I met wonderful people who live with FASD day to day. Undoubtedly they have challenges, but they are contributing. They are working hard in our society. They are living with these challenges and they are able, through a tremendous amount of personal, family, and community support, to keep away from any conflict with the law, but they are not free from challenges.

Indeed, I heard the story of one young lady who is an intelligent, well-spoken gal. She talked at this conference immediately before me. I must say that she did a better job of addressing a huge audience of 500 people than I did. It was remarkable to watch. However, she talked about some of the challenges she faced.

She talked about going to work in the morning and forgetting her keys and then returning home to get her keys, but then forgetting why she had come home. Then, when she finally realized what she was looking for, her keys, she forgot what she needed her keys for. She had to slow down and calm herself and deal with that confusion and frustration of not being able to really grasp exactly what she needed to get done. Eventually, through trial, challenge, and tribulation, she would get back on track with what she needed to do that day.

This is just one example of the challenges of people living with the real challenges of fetal alcohol spectrum disorder.

I am going to read something I think is relative and poignant to the debate. It came to me from a Yukoner, Chief Ray Jackson, who is the former chief of the Champagne and Aishihik First Nation, and Jenny Jackson, who wrote this book called, Silent No More! A Poetic Voice Breaks the Silence of FASD. It is about Crystal, who was kind enough to sign this book for me, and she gives a summary about one of the poems in the book. She writes:

This is a brief summary of how people might view their differences while longing for acceptance with FASD.

As an explanation for the poem, she says:

Everything is new each day because it is due to the lack of understanding of consequences. Every day is a new day. Yesterday is gone forever and people are living in the moment. There is an awareness of the different worlds, but people are inviting others to come and join them and they want them to accept them.

The poem reads:

We are living in our world where everything is new each day,
Again, we'll try to find our way,
A world that has its axis tilted to the right
A world that has no time and needs are out of sight
Come into our world
Be patient and kind, forgiving and blind
Tell us we are all right

I think the poem is saying that we need to enter this discussion. We need to understand and appreciate the challenges of people living with FASD.

I would offer that, as a government, we have been focused on a couple of things. We have been focused on making sure that perpetrators of crime are held to account; and that we have a solid, sound justice agenda to make sure our citizens are protected and public safety is paramount.

I think we have done an exceptional job of that. I think we have done a great job of making sure that people who are out to harm people in our society are held to account, that our citizens are protected in this country, and that any deviation from the law that is heinous in nature is reflected in the community's abhorrence of that behaviour.

At the same time, we have run an additional agenda: taking care of victims of crime, supporting our victims of crime, making sure that their voices are heard loud and clear. If we start from the position that people are indeed victims first, if they are born with a neurological development disorder because of exposure to alcohol before they were born, our government has made a clear commitment to make sure we protect victims first in our justice agenda. I would posit to the entire House, to every one of my hon. colleagues, that if we start from the position that people with FASD are victims first, then we are reaching a point where we can have a balanced discussion about this bill.

Undoubtedly, there is the challenge that a person then breaks the law and needs to be held to account for the breach in law. How do we deal with that? How do we make sure we balance public safety and the need for rehabilitative efforts and corrective measures to take place in a conventional world when we have a non-conventional client, when we have client who does not necessarily understand right or wrong in the same fashion as we do, or benefit from the same sentencing, sanctioning, or denunciation as we would as everyday citizens within the justice system.

I talked about it and touched on it a bit, that my bill is not absolution for misconduct; it is mitigation. It is not an excuse for bad behaviour, but rather an explanation. How does mitigation fall into this question mark and how do we maintain public safety when we do that?

My bill, in the mitigation section, talks about the very real elements, the symptoms of FASD, that could lead one down the path of criminality. Examples are the inability to understand the consequences of one's actions and the inability to control impulsive behaviour. Those things have direct and real links to criminality. In fact, those symptoms, statistically, in our justice system, account for the over 90% of administrative type justice offences that a person with FASD would find themselves in. What are those kinds of offences? They are breach of probation, breach of conditions, failing to show up for work as part of their release conditions because they cannot manage their schedule and do not necessarily understand those terms and conditions, because as is said in the poem, each day is a new day. They have to start a new day fresh and remind themselves of what they have to do. Sometimes that breaks down to not just days but hours and sometimes even minutes.

To balance public safety, I have written into my bill that the court shall consider to be a mitigating circumstance where those symptoms contribute to the offence, because as I said, FASD does not instantly equate to criminality. It is not as simple as to say people have FASD and therefore they are going to involve themselves in criminal conduct. That is absolutely not true. However, what will happen, or can happen, disproportionately, is that FASD, where those symptoms manifest themselves out at different times and at different places, can contribute to criminal behaviour, and we need to take that into account.

Mr. Speaker, I know my time is up and I could probably stand here and talk for another 20 minutes about this. I look forward to questions and comments from my colleagues on the bill, where I will be able to address some of the issues that are raised. However, I will leave members with this thought.

In our criminal justice approach, it has been a long-held defence that people who consume alcohol and behave in a particular way because they are intoxicated can offer that up as a reasoned defence. A 20-year-old who gets drunk and acts like a 15-year-old can offer up that excuse in law. However, someone who has been exposed to alcohol and has a neurological brain disorder and has an operating mind of an 8- to 15-year-old, in adulthood, cannot offer that up as a reason. That should generally just shock the consciousness of Canadians and us as members of Parliament.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I would like to salute my colleague for introducing his bill with great intentions. I have this question for the member.

Fetal alcohol spectrum disorder affects many aboriginal communities, communities in northern Canada and those that are rather remote. I would like to know whether the member can count on the support of his government for this bill, and whether his government is prepared to make additional efforts to help the communities and the people who are most vulnerable to these disorders, since they have often been marginalized and forgotten. I would like the member to answer these two questions.

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, I did not get an opportunity to talk about it in my speech, but I am very proud of the work that has been done by our federal government in investing. I speak exclusively to the north, to the Yukon territory, where recently, back in January, I was able to open a 14-unit house with federal government funding under options for independence, and that provided the necessary social support networks that keep people living with FASD out of the criminal justice system, to provide them opportunity, hope, and the necessary support they need.

I think we have done a really good job as a federal government through the health portfolio, through the housing portfolio, and through our education strategies. There has been a number of things that I have seen roll out in the territory since 2011 that our federal government has done, which I think are just tremendous.

Admittedly, that is really where the bulk of our attention and funding should be directed, prevention and social support, and not such a focus on what I see as a small piece of the bigger question mark around FASD and social support.

I am happy, and of course naturally I gravitate to a justice bill because of my background as a former police officer and a former correctional officer, where I saw first-hand the implications and impact on people with FASD in the justice system. However, truth be told, I think we still do need to focus a lot of the support on health, education, and social support. I think our government has done a fantastic job of that, and I am happy just to introduce something that I think will play a small part in a very dynamic and complex picture.

I do thank the member for that excellent question.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, in reading the bill, I am pleased to note it is an issue with which I have been somewhat associated for a number of years. At one point I was the health critic for the Liberal Party in the Province of Manitoba.

I believe that we underestimate the cost, both social and economic, of this brutal disorder. It is sad when we try to look at the numbers. I have yet to get a tangible number that I would believe of how many people are afflicted with this particular disorder.

I am wondering if the member might be able to enlighten the House. I do not know if he has been provided some tangible numbers. Does he have any sense of the severity, and how many people would he believe are actually identified as FASD? That is just the identification portion. There are many others who do not get identified.

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, my hon. colleague raises a good point and a great question. The most up-to-date figures we have right now and the common numbers used, and they do vary a bit, are that one in a hundred Canadians are born with FASD. That is the estimate.

He raises another good point about the misdiagnosis, because there is a tremendous amount of stigma around this, and there are a lot of reasons for it. There is no fault in this story about how it happens. There are a lot of complex issues and reasons that a person can be FASD-affected, but it does lead to diagnosis challenges in the first instance, and then because of the stigma, there is a tendency and a propensity to have it misdiagnosed as something else, ADHD for example, or just no diagnosis at all, just ignoring what we could clearly see to be the case.

The member raises a good question about the prevalence of it, and our government is actually funding prevalence studies at the provincial and territorial levels within the prison system. They are doing that in Yukon to identify at least some better handle on the numbers in the correctional system, but as a population nationwide, the numbers are alarming.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I am very pleased to be able to rise in this House today to speak to Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder).

I think it is important to consider the vulnerability of other people and everyone’s particular circumstances in determining sentences. Our society must recognize that each person has a different history and a different background and that we must take this into consideration in our legislation and in our justice system. Unfortunately, certain communities and certain people are much more vulnerable than others. My intention is not to point fingers at anyone today; I am just making an observation.

We are certainly going to support this bill and refer it to committee. However, I would very much like to express my dismay with the federal government and its virtually non-existent will to provide assistance to the communities that are unfortunately suffering from this kind of problem.

Let us talk about aboriginal communities. For the past few months, we have been asking the government to set up a commission of inquiry into murdered and kidnapped women and girls, but it has always refused to take any action on this. I think it is important to make a connection between these two issues today.

Since it came into power, this government has marginalized aboriginal communities and others in northern Canada that are more remote, abandoning them completely.

I would like to congratulate the member on introducing this bill, which is, I hope, an initiative that will reverse the direction that has been imposed by the Conservatives’ repressive criminal justice agenda. All of their bills clearly show us that the notion of rehabilitating offenders rather than punishing them does not exist in their Conservative ideology.

I am convinced that a fair system punishes those who have committed an offence, but at the same time takes social factors into account in its decisions, considering the impact that these social factors may have on some people. Our society has a duty to consider that not everyone has the same chances in life and to restore that balance.

As my colleague said, fetal alcohol spectrum disorder affects 1% of the Canadian population, that is, one out of every 100 people. The spectrum disorder may have serious consequences on the people it affects. There are birth defects linked to the consumption of alcohol during pregnancy. For instance, these defects may involve only physical malformations, or they may involve damage to the brain or the central nervous system, causing cognitive, behavioural and emotional deficits.

It is important to understand, and my colleague expressed it very well in his speech, that a person suffering from this spectrum disorder may not react in the same way as other people in a particular situation, or will perhaps not be able to tell the difference between right and wrong.

Our justice system proceeds from the assumption that an individual’s guilt makes him understand that he has committed an offence, for instance. People with abnormalities linked to these types of disorders may not read a given situation in the same way. For our justice system to be fair and balanced, it is important to take all of these elements into consideration in sentencing.

The intent of Bill C-583 is to define what fetal alcohol spectrum disorder involves. This is extremely important. This principle is already recognized in certain rulings, as well as in Criminal Code section 718.2, but the recognition is implicit.

This bill defines fetal alcohol spectrum disorder. In addition, it establishes and informs the court that it may be considered a mitigating factor in sentencing.

The bill makes it possible to establish a procedure whereby a court can order the assessment of a person who it suspects may suffer from fetal alcohol spectrum disorder. This will make things easier for the court in determining a sentence, assessing an offence or convicting an individual.

At the time of sentencing, it is very important that the court consider all of the criteria and all of the circumstances that may have led an individual to commit an offence. This is why the bill is a light at the end of the tunnel of the Conservatives’ repressive and ideological agenda.

Sentencing an individual who has committed an offence is part of the initial assessment by a criminal justice system, but we must acknowledge as a society that these individuals are also part of society and that they must be reintegrated into it. We cannot merely sentence them to a term in prison; we must also enable them to return to society and even encourage them to do so. For an individual who suffers from a disorder he has no control over, it is important to ensure that the courts take this into consideration in determining his sentence, so that he is allowed to proceed with treatments.

My colleague referred to a conference in Vancouver that he attended, where he met people who suffer from this spectrum disorder. This shows that they are able to return to society. They are not necessarily criminals, as my colleague said. Even if they are, they are people who can doubtless be citizens like everyone else. As a society, it is our duty to inform the court that it must give these types of mitigating factors due consideration.

The Gladue principle comes from a landmark ruling by the Supreme Court that determines the significance and the scope of paragraph 718.2(e), which in fact says that family situation and background must be taken into consideration. Criminal Code section 718.2 places emphasis on the fact that even if an individual has committed an offence and is found guilty, the sentence that is imposed must take his family situation and background into consideration, for instance, if there is a history of violence or drugs and particularly if he suffers from fetal alcohol spectrum disorder.

I hope this bill will be the first in a long line of bills that will mean that the Conservatives abandon their repressive and ideological criminal justice agenda and finally understand that an ounce of prevention is worth a pound of cure. There must be an investment in our communities so that people no longer suffer from these kinds of disorders. We need to rehabilitate these people, not just take a repressive approach.

I certainly hope my colleague can make the Conservative government listen to reason.

[Kevin Lamoureux, Liberal, Winnipeg North, MB]

Mr. Speaker, this is one of those issues where there needs to be a higher sense of co-operation among the different stakeholders. In particular, we need to recognize that the most significant role to be played in this is likely at the provincial level. It is an issue that I have had the opportunity to address on many occasions. The whole area of fetal alcohol syndrome disorder is one that, as I put forward in my question, causes a great deal of cost to our society both socially and economically.

Because someone is diagnosed with FASD, it does not mean that the person is a criminal. There are many wonderful, outstanding young people, young adults and others who have FASD and have gone on to have wonderful, strong, powerful lives. We need to highlight that.

This is an issue about which I am quite passionate. When I was an MLA, I introduced a private member's bill that would have had warning labels on all alcohol bottles. Much like we have warning labels on cigarette packages, there should be warning labels on alcohol containers. I was surprised that it was not universally accepted within the Manitoba legislature. I believed I had the support of the Progressive Conservative Party and the Liberal Party at the time.

It is important that we recognize education. We need to ensure that people understand the cause of FASD. There are things we can do to better to educate the population.

When I was a teenager, I had no idea whatsoever what FASD was. I would suggest that many young ladies, teenagers and the like do not necessarily know what FASD is or the causes of it. Education was part of a promotional campaigns. This was not just coming from me; it came from many different stakeholders. We need to incorporate some sort of an educational component to combatting FASD. That goes right from our classrooms all the way to where alcohol is served.

Many might recall Sandy's law. It was brought in by the Province of Ontario. Signs were required to indicate what could happen if a woman was pregnant and drank alcohol.

There is a lot we can be doing, but we are not doing it. I can appreciate what the mover of the bill is trying to deal with, which is the consequences once it hits the courts. I applaud that. The Liberal Party supports the bill going to committee, but there is much more we could be doing prior to someone getting involved in a criminal activity and ending up in court. Some of what we could be doing it is straightforward.

A teacher who deals with FASD on a regular basis said that we should turn down the lights. We do not have to turn the lights off, but turning the brightness down in some of the classrooms could have a positive impact. We even have some schools that engage in that and whatever else they can do to assist individuals who have this disorder. There are things that can make a difference.

When I posed the question in terms of diagnostics or the actual numbers, it was because we do not know what the numbers are. We can speculate, and I appreciate the member's best guesstimate of one in 100 births, but it really varies.

I remember meeting with some nurses or nurse practitioners who were going out and about in our communities at a special event hosted by one of the stakeholders. A nurse told me that there are some communities where there is a very high percentage of individuals with FASD. I challenged her to tell me what she meant by “a high percentage”. Were we talking about 5%, 10%? I was totally amazed in terms of the percentage. This was someone with boots on the ground in some of the communities. I suggested 50%. She said it was much higher than that.

In Canada there are communities where it is higher than 50%. This is based on information that I heard third-hand, but when I shared that information with other stakeholders, they did not contradict it. I believe that the numbers are significantly higher than we anticipated.

I was encouraged when the member said the federal government is looking at it in one area, but I think we need to broaden it. We need to get the stakeholders, in particular the provinces and possibly school divisions, around the table and have a discussion to try to identify just how large and significant an issue this is and what we can do as a society to improve the circumstances and the lives of people who are affected by fetal alcohol syndrome.

If we took that holistic approach, we would have the type of difference that would hopefully make lives a lot better for a lot more people.

Speaking strictly to the legislation, the definition it provides gives a great explanation of what we are talking about. This is the definition in the bill that is being proposed:

“fetal alcohol spectrum disorder” or “FASD” refers to any neurodevelopmental disorder that is associated with prenatal alcohol exposure, and that is characterized by permanent organic brain injury and central nervous system damage that result in a pattern of permanent birth defects, the symptoms of which may include (a) impaired mental functioning, (b) poor executive functioning, (c) memory problems, (d) impaired judgment, (e) inability to control impulse behaviour, (f) impaired ability to understand the consequences of one’s actions, and (g) impaired ability to internally modify behaviour control

The Liberal Party critic has been fairly clear in our caucus as to how the bill is a good thing and what the member is trying to achieve. It allows courts the ability to take into account the profound impact of FASD on a child and the resulting behaviour that might arise when an individual is involved with the justice system.

It is an encouraging step from the member. We look forward to the bill going to committee.

Let me conclude my remarks by saying that we could be doing Canadian society a huge favour by providing stronger leadership in a more holistic way in dealing with FASD, an issue that is facing health care, social services, justice, and other departments in many different ways.

Let me conclude my final comments as I started, by saying that the majority of individuals with this disorder have an totally wonderful life and are not involved—

[The Speaker, Andrew Scheer]

Resuming debate, the hon. member for Kootenay—Columbia.

[David Wilks, Conservative, Kootenay—Columbia, BC]

Mr. Speaker, I am very honoured to rise on behalf of my colleague, the member for Yukon, on his private member's bill, Bill C-583, An Act to amend the Criminal Code with regard to fetal alcohol spectrum disorder.

Bill C-583 seeks to accomplish three things. First, it seeks to define FASD in a legal context. Second, it would provide the court with the authority to order assessments when there is evidence and belief that an accused has FASD. Finally, it would permit the court to consider FASD to be a mitigating circumstance in the sentencing of an offender if the symptoms of the FASD contributed to the offence.

On that last point, allow me to stress that mitigation is not absolution. It is a reflection that there is diminished responsibility, not absence of responsibility, and it takes into account an explanation for a behaviour, not an excuse. That said, it does recognize the influence a neurological development disorder can have on a person's conduct.

As a retired member of the RCMP, having served for over 20 years, I myself have seen the challenges associated with effective and balanced approaches to public safety and sentencing. Having served in a number of communities across British Columbia, I can say that along with other conditions, FASD is significantly present in the population.

The member for Winnipeg North wondered whether it was one in 100 or even more. I do not know what the numbers are, but I can say from an operational standpoint that it is significant. It is a challenge for police officers across the country to be dealing with it on a daily basis, specifically in the adult community. There are outreaches for youth and young adults in Canada, but we tend to have challenges when it comes to the adult population.

With that in mind, I would like to continue on with what I believe are some of the great opportunities that the member for Yukon has brought forward in his private member's bill.

The Consensus Statement on Legal issues on Fetal Alcohol Spectrum Disorder (FASD) from Edmonton, Alberta, in 2013 explores the implications for the justice system when the needs of FASD-affected individuals go unmanaged in the broader community and ultimately surface in the legal context. It does stress that the needs of the broader society need to be recognized as well, in that while FASD is a possible explanation for behaviour, it is not absolution for misconduct. It states:

At the same time, people who have FASD suffer from neurodevelopmental disorders and, in some cases, serious functional deficiencies that in all fairness must be recognized and taken into account in the administration of justice.

Elsewhere the document states:

The neurodevelopmental deficits associated with FASD present a fundamental challenge to the Canadian criminal justice system,

—especially in the adult system—

which is premised on assumptions that people act in a voluntary manner that is determined by free will and that they can make informed and voluntary choices with respect to both the exercise of their rights and the decision to commit crimes. It is presumed that a person intends the natural consequences of his or her actions, and that, for example, an individual would never make a statement against his or her interest unless it is either true or coerced.The evidence we have heard is compelling that those with FASD are likely to have a diminished capacity to foresee consequences, make reasoned choices or learn from mistakes. Therefore, their actions are likely to clash with assumptions about human behaviour at almost every stage of the justice system.Throughout their lives, individuals with FASD are more likely to be involved in the legal system than individuals without FASD.

One fundamental problem is that FASD represents a broad spectrum of symptoms of greatly varied severity giving rise to a range of disorders/disabilities and, consequently, varying degrees of diminished responsibility and capacity.

While the elements of the neurological damage associated with FASD are well established, their expression and intensity vary from one individual to another. In the absence of a simplified method of categorization, the legal system must adapt to individualized, context-specific diagnoses, and formulate manageable criteria or standards to deal with many different interactions with FASD sufferers.

About 60% of individuals with FASD come into conflict with the law.

The consensus statement continues:

The neurological impairments associated with FASD are likely to collide with the law, which generally assumes a level of intent, foresight and awareness.The evidence shows that, unless diagnosed, those with FASD are likely to be disadvantaged at the point of initial contact with police, in relation to the understanding of legal rights and options, as well as the ability to respond to investigative processes—particularly, interrogations--at the bail stage, the trial stage, and the sentence stage—where it is assumed, by the way of deterrence, that the risk of adverse consequences would lead to avoidance of those consequences—and then, of course, the post-sentencing stage. At each of these stages, it is assumed that offenders are capable of making choices, understanding the consequences of their action, and learning from their mistakes. These assumptions do not accord with what is known about the functional disabilities associated with FASD.

It continues:

Looking at all court cases for 2010/11, the proportion of all youth and all adult court cases involving an “administration of justice” charge as the most serious offence in the prosecution was [21%].We heard evidence that a leading characteristic of people with FASD is an inability to organize their lives, meet deadlines, keep appointments, learn from experience and understand the consequences of failure to do any of these things. Accordingly, what are called “administration of justice” charges in effect criminalize those with FASD by setting the person up for further charges (“the revolving door”).

Elsewhere the document states:

Although courts have recognized FASD as a mental disorder, they have been reluctant to hold that it renders the FASD accused incapable of appreciating the nature and quality of the act or knowing that it is wrong.The availability of a better-tailored defence of diminished responsibility for those with mental disabilities could provide the legal system with more flexibility in dealing with the diverse circumstances of offenders with FASD.Criminal justice is based on the principle that people who offend should be held accountable in proportion to what was done and the offender’s responsibility for the offence. The principles are laid out more explicitly in the YCJA than they are in the Criminal Code. However, it is reasonable that this general principle holds for adults as well as youths.

That is why, as I mentioned earlier, it is recognized more quickly with youth than it is with adults, because we do not recognize the two systems cohesively.

The consensus statement continues:

Proportionality is required for sentencing both in the adult and the youth justice systems.Proportionality is not defined explicitly. It could, however, accommodate various forms of diminished responsibility related to impulsivity and suggestibility associated with FASD. In particular, there is little judicial authority on how the “degree of responsibility of the offender” should be defined for those with disorders like FASD....

In closing, I believe the bill brought forward by the member for Yukon would better advance the criminal justice system and would make sure that those with FASD would be better served in the criminal justice system from here forward.

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, first I would like to thank my colleague from Yukon for introducing this bill. I would like to talk about an important issue regarding individuals with fetal alcohol spectrum disorder.

The purpose of Bill C-583 is to protect those vulnerable individuals born with fetal alcohol spectrum disorder. The enactment amends the Criminal Code to add a definition of fetal alcohol spectrum disorder and to establish a process for assessing individuals who are involved in the criminal justice system and who it is suspected suffer from fetal alcohol spectrum disorder.

It requires the court to consider, as a mitigating factor in sentencing, a determination that the accused suffers from fetal alcohol spectrum disorder and manifests certain symptoms.

Fetal alcohol spectrum disorder is an umbrella term used to describe any individual who suffers from a range of effects, including physical, mental, behavioural, and cognitive, and is caused by mothers who consume alcohol during pregnancy. Furthermore, it includes those who are diagnosed with fetal alcohol syndrome, partial fetal alcohol syndrome, alcohol-related neurodevelopment disorder, and alcohol-related birth defects.

As Sheila Burns explained in the Toronto Star:

Like Alzheimer’s, fetal alcohol spectrum disorder is an invisible, brain-based disability that impacts thinking. Individuals may appear capable but typically have significant limitations. They have difficulty recalling past experiences, anticipating consequences, adapting to new situations, solving problems and interacting socially.

Fifty per cent of those with fetal alcohol spectrum disorder meet the current definition of mental retardation.

The behavioural characteristics begin to develop in adolescence and can become more apparent in the adult years. These behavioural characteristics have been compared with those in autism, depression, and bipolar disease. Similarities include blaming others for one's mistakes and being emotionally volatile. People often exhibit wide mood swings that can escalate in response to stress, and they often do not follow through on instructions. As with other brain-based disabilities, the Criminal Code must also ensure that those with fetal alcohol spectrum disorder are provided an assessment on a case-by-case basis.

Fred Headon, the president of the Canadian Bar Association, has expressed his support and has emphasized the need for this amendment. He has called on the federal government to introduce a bill to give more authority to judges when dealing with an accused suffering from fetal alcohol spectrum disorder.

Statistics indicate that 60% of individuals with a diagnosis of fetal alcohol spectrum disorder have had difficulties with the law. With this in mind, the judges require access to tools to identify fetal alcohol spectrum disorder and the authority to order an assessment if needed.

During a meeting with Yukon Justice Minister Mike Nixon and other politicians in December, Mr. Headon said:

If we can get a recognition that the tools are required, then at least... [t]hat could mean making sure that they have the proper supports while they are there, making sure there are resources available to them while they’re in custody. It can also mean things like, when the prison discipline system is being invoked, making sure their condition is accounted for when discipline is being handed out and they’re getting fairly treated at that stage as well.

Research shows that the incidence of fetal alcohol spectrum disorder is considerably higher among aboriginal peoples and in rural, remote and northern communities.

I have personally met with families dealing with fetal alcohol spectrum disorder and heard their stories. Shelley adopted two young children with fetal alcohol spectrum disorder and describes how it affects their daily life.

Shelly adopted two young babies, a girl and a boy, who shared the same birth mother. At the time of the adoption, she was not aware that these two innocent lives had fallen victim to a horrible disorder caused by their mother drinking alcohol during pregnancy. Her children are two of 3,000 babies born each year with fetal alcohol spectrum disorder. Her daughter has been diagnosed with partial fetal alcohol syndrome, and her son will soon be diagnosed with an alcohol-related neurodevelopment disorder. In most cases, there are very few physical distinctions, and the impacts on their brains and overall mental development are not visible until their adolescent and teenage years.

Shelley has decided to spend countless hours to advocate for better support, education services, and understanding. She has been actively attending conferences, gaining media support, and teaching her community. Shelley's encounter with fetal alcohol spectrum disorder was unforeseen and continues to be a difficult journey. However, it was one well worth it. Her story tells us that intervention is needed yesterday.

We spoke about 60% of kids being affected by this disease. Imagine if we could prevent 60% of these kids from ending up in the justice system. If we could reduce that to 30%, we could use the money that is saved in the justice system to apply to research and to help the families that have difficulties with these children.

[The Speaker, Andrew Scheer]

The time provided for private members' business has now expired. The hon. member for Nickel Belt will have three minutes to conclude his remarks the next time this bill is before the House. We will move on and this item will be dropped to the bottom of the order of precedence on the order paper.

The House resumed from June 5 consideration of the motion that Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be read the second time and referred to a committee.

[Yvonne Jones, Liberal, Labrador, NL]

Mr. Speaker, I am pleased to rise today to debate Bill C-583. This is a bill I believe strongly in, and I would like to thank my colleague opposite, the member for Yukon, for introducing it. I would also like to acknowledge and thank my colleague, the member for Charlottetown, for his work on this bill and for his leadership in our caucus on this issue. I would hope that all parties and all members in this house can come together in support of this bill, recognizing the place fetal alcohol spectrum disorder has in Canada and in our justice system.

As the member of Parliament for Labrador, and our party's critic in northern Canada, I have seen the sad effects of fetal alcohol spectrum disorder, which causes a number of disabilities, including fetal alcohol syndrome, partial fetal alcohol syndrome, alcohol-related neurodevelopmental disorder, and alcohol-related birth defects.

Many Canadians may not be aware that fetal alcohol spectrum disorder affects our Inuit and aboriginal populations to a much higher extent than the rest of Canadians. As an Inuit woman, and with a large aboriginal community in Labrador, we have been working to recognize those who have been born with this disorder while also working with organizations to prevent prenatal alcohol exposure.

I have been receiving calls and emails from constituents about this issue, especially from those doing important work at the Labrador Correctional Centre in Happy Valley-Goose Bay. They understand the need for our justice system to include the fact that many individuals in the court system suffer from fetal alcohol spectrum disorder.

This past September, on International Fetal Alcohol Spectrum Disorder Awareness Day, the FASD Newfoundland and Labrador Network continued to raise this issue, as it does every day of the year, in my home province. I would like to thank them for their dedication. They know better than anyone that children affected with FASD have significant challenges in school and especially with other functions they are expected to participate in. The challenges due to brain damage resulting from FASD have certainly wreaked havoc. The lack of support for these children then leads to mental health issues and addictions and makes it difficult for them to hold down steady jobs.

One of the biggest issues is a lack of screening in many parts of the country or a national standard so that our health care and education systems are aware of persons who suffer from FASD and can take appropriate measures to offer special assistance. We cannot let Canadians fall through the cracks and go on to become societal outcasts.

Fetal alcohol spectrum disorder affects 2% to 5% of the provincial population, or between 10,000 and 25,000 people. Because of the higher magnitude with which the aboriginal population suffers from this disorder, I know that Labrador is more deeply affected by FASD than other areas of our province of Newfoundland and Labrador. In northern Canada, much more needs to be done to understand and prevent the disorder. In Nunavut, Labrador, Nunavik, and the lnuvialuit regions, we must work with the high-risk communities to make immediate change and help prevent more children from being born with FASD.

The Labrador Inuit Health Commission, which works with the Nunatsiavut government in Labrador, has done good work raising awareness about prevention and in educating local communities about this disorder by holding workshops and other information sessions, distributing posters, holding open houses, going into schools, and using other community outreach methods. It has done and continues to do tremendous work.

The health commission is working hard as well to address FASD, and it deserves to be commended for all the work it is doing, not only in our province but also across the country. The Nunatsiavut government has taken steps to ensure that schools in towns such as Hopedale and Nain can identify sufferers of FASD and offer a more tailored education experience to meet the needs of the students.

This bill would amend section 2 of the Criminal Code of Canada by adding the following:

“fetal alcohol spectrum disorder” or “FASD” refers to any neurodevelopmental disorder that is associated with prenatal alcohol exposure, and that is characterized by permanent organic brain injury and central nervous system damage that result in a pattern of permanent birth defects, the symptoms of which may include....

This is very important because these items are the fundamental piece of the bill, and the issue that we continue to deal with. The amendment continues to say that the symptoms:

...may include

(a) impaired mental functioning,

(b) poor executive functioning,

(c) memory problems,

(d) impaired judgment,

(e) inability to control impulse behaviour,

(f) impaired ability to understand the consequences of one’s actions, and

(g) impaired ability to internally modify behaviour control;....

As this list indicates, this is a very serious disorder that causes some very serious symptoms. This bill would help to recognize this when people who are before the courts suffer from fetal alcohol spectrum disorder. Clearly, our judgments must take these symptoms into account when sentencing individuals for their actions. It is no surprise that sufferers of FASD have difficult challenges during all stages of the criminal justice system.

I will elaborate on the above points briefly and how they face challenges while dealing with the courts.

As my colleague, the member for Charlottetown, has pointed out, poor memory and memory loss when a person is unable to recall prior events or parts of events is a huge issue. If individuals legitimately cannot recall how events have unfolded through no fault of their own, these individuals may end up incriminating themselves in court or during interrogation, as they become vulnerable to accepting events as they are presented to them.

An impairment in mental functioning, judgment, and reasoning leads people with FASD to sometimes make the wrong choices and end up running into conflicts within our legal system. This must be taken into account when a crime is committed by someone suffering from fetal alcohol spectrum disorder. These and other symptoms of FASD outline just how delicate a situation can be when dealing with a person who is suffering from this disorder while going through our criminal justice system.

When I talk to people who work in the correctional system in ridings like mine, I hear from them about their regularly seeing clients who suffer from FASD. They understand how this disease impacts these people's judgment, memory, and understanding of events around them. Many times they have expressed their concerns to me about these individuals who are experiencing FASD and going through the legal system. I could talk extensively on FASD in particular, simply because I deal with this issue on a daily basis within my own riding. I know the delicacy of this issue. I know how important it is to understand it from a public perspective, but also to provide education about it in our communities so that we can work harder to try to prevent this disease that, as we know, is preventable.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in the second reading debate with respect to Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

I welcome the opportunity to listen to the debate and engage in the discussion on the implications that fetal alcohol spectrum disorder, FASD, has on the criminal justice system.

I would like to begin by thanking the member for Yukon for bringing this very important but complex issue forward to attention of the House of Commons. The impact of FASD is a significant issue in his jurisdiction, as it is elsewhere in Canada. I would like to commend him on his leadership in attempting to address the complex issue of FASD and the criminal justice system.

FASD is an umbrella term used to describe permanent brain damage caused by prenatal exposure to alcohol. Although alcohol is not the only substance that can have an impact on a developing fetus, alcohol is the only substance that appears to affect both the physical structure of the brain and the brain's function.

As is the case with many other forms of mental disability, the vast majority of people who live with FASD do not demonstrate any physical characteristics. For this reason, FASD is often referred to an as invisible disability.

Many individuals with FASD suffer from cognitive impairments, such as impaired judgment, poor memory, and impulsiveness. They may also have difficulty linking events with their consequences, which makes it difficult for them to learn from their mistakes.

These impairments are sometimes referred to as primary characteristics of FASD, as they are the characteristics with which a child is born. They are associated with the structural and functional changes in the brain.

Individuals with FASD can also develop what are referred to as secondary characteristics. These refer to the disabilities that may develop as a result of a failure to appropriately and adequately address the primary characteristics. They are more behavioural in nature, and can include mental health concerns, employment problems, disrupted school experience, addiction issues, and trouble with the law.

The brain abnormalities associated with FASD are different for every person with this disability. There can be a significant disparity in the level of impairment among young persons diagnosed with FASD.

Owing to both the primary and secondary characteristics of FASD, individuals with FASD may be at an increased risk of coming into contact with the criminal justice system. Unfortunately, there is scant research on the exact prevalence of FASD in the criminal justice system.

Owing to the presence of individuals with FASD in the criminal justice system and the particular challenges that arise from their involvement in the system, there have been many calls for changes to legislation to specifically address the issue of FASD.

An FASD prevalence study is currently under way in Yukon to evaluate the prevalence of FASD in adult individuals who are incarcerated or on probation in Yukon. This could help to better understand this very complex problem.

The Yukon study will contribute to the understanding of how many people in the corrections system face challenges linked to FASD, mental health disorders, and substance abuse problems. I understand that the Department of Justice Canada has contributed to the development of this study. I look forward to learning about the results in 2016. I think it will provide a valuable contribution to the way forward on this challenging issue.

The Government of Canada has been actively engaged in many programs promoting access to justice for marginalized individuals for many years, including those with FASD. One example I would like to draw to members' attention is the aboriginal justice strategy. This is a federally led program that is cost-shared with the provinces and territories. It has operated since 1991 to support innovative community-based justice programs that help to address the overrepresentation of aboriginal people in the justice system.

The aboriginal justice strategy provides cost-effective alternatives to mainstream justice processing by ensuring accountability for low-level, non-violent offences according to the same principles used in non-aboriginal cases. The strategy provides funding to approximately 275 community-based justice programs that reach over 800 aboriginal communities in all jurisdictions. Many programs provide services specifically related to FASD, and all 275 programs indicate that those exhibiting FASD characteristics are among the clientele using their services.

In addition to the aboriginal justice strategy, the government also funds the aboriginal courtwork program, which works to ensure that aboriginal people in contact with the criminal justice system, whether as accused persons, witnesses, victims, or family members, have fair access to equitable and culturally sensitive treatment throughout the court process.

Each year, over 52,000 aboriginal Canadians in over 435 communities benefit from the access to aboriginal court work services. These services increase the efficiency of the court system, especially in remote communities, and promote outcomes that support healthy, safe families and communities.

By highlighting these programs and projects, I do not wish to give the impression that FASD is an issue that only affects aboriginal Canadians. However, anecdotal evidence indicates that rates of FASD are higher in aboriginal communities for a variety of historical, cultural and other reasons. Therefore, much of the government's response to date on this issue has focused on aboriginal people, but there is wide recognition that FASD has a broader impact.

This broad impact is recognized by Bill C-583, which would apply to all individuals with FASD. The bill proposes to amend the Criminal Code to do three things: it would define FASD in the Criminal Code; it would empower the courts to order FASD assessments for the purpose of bail and sentencing; and it would deem FASD to be a mitigating factor on sentencing if certain conditions were met.

I am sure all members can agree with the general intent of this bill. The goal of providing special treatment to individuals who suffer from a particular type of permanent brain damage, which may impact their level of criminal responsibility, is commendable.

When I read the bill, however, I found it raised a number of important questions that ought to be considered. For example, some people will ask why there is a need to address only FASD and not any other mental disability or mental disorder. Is FASD the only disability that has an impact on an individual's degree of responsibility for the purposes of the criminal law?

I also wonder whether the provinces and territories currently have the capacity to undertake assessments that would be ordered as a result of this bill. The bill would require medical assessments by various experts in the justice system.

Finally, given that courts can already take evidence of FASD into account for the purpose of sentencing but are not obliged to consider it for every case, we must fully analyze the impact of explicitly adding this to the Criminal Code.

In closing, while we support the intention of the bill to find alternative ways to address FASD in the criminal justice system, I believe we need to review and reassess the available options. I believe a study of the subject matter by the appropriate committee could be beneficial to all.

Again, I would like to recognize the efforts of the member for Yukon for raising this important and challenging issue, and I look forward to hearing from other members on the potential impacts of this bill.

I move:

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 for second reading be discharged, the bill be withdrawn, 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”.

[The Deputy Speaker, Joe Comartin]

It is my duty to inform hon. members that pursuant to Standing Order 93(3), no amendment may be proposed to a private member's motion or to the motion for second reading of a private member's bill unless the sponsor of the item indicates his or her consent.

Therefore, I ask the hon. member for Yukon if he consents to this amendment being moved.