Bill C-235 (Historical)

An Act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder)

This enactment amends the Criminal Code to establish a procedure for assessing individuals who are involved in the criminal justice system and who may suffer from a fetal alcohol disorder. It requires the court to consider, as a mitigating factor in sentencing, a determination that the offender suffers from a fetal alcohol disorder.
The enactment also requires the court to make orders to require individuals who are determined to suffer from a fetal alcohol disorder to follow an external support plan to ensure that they receive the necessary support to facilitate their successful reintegration into society.
Lastly, it makes consequential amendments to the Corrections and Conditional Release Act.

Criminal Code

[Larry Bagnell, Liberal, Yukon, YT]

moved that Bill C-235, An Act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder), be read a second time and referred to the Standing Committee on Justice and Human Rights.

Mr. Speaker, I am pleased to be here today on the traditional territory of the Algonquin people.

I am moved today to start the debate on my bill, Bill C-235, an act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder).

We have all seen television episodes of someone wrongly imprisoned and how that devastates their lives and how heart breaking it is. I am sure that has moved many members to tears. We have it in our power with Bill C-235 to end a number of cases of needless suffering of innocents. It is not one, not two, not three, but potentially over 2,000 cases a year. In fact, for people alive in Canada today, it could potentially affect 180,000 Canadians. This is an immense challenge and humanitarian opportunity.

First, I will explain the bill briefly. FASD, fetal alcohol spectrum disorder, is permanent brain damage caused by prenatal exposure to alcohol. In a vast majority of cases, unlike other ailments, it is an invisible affliction. Among the symptoms of the resulting defects in the central nervous system are impaired mental functioning, poor executive functioning, memory problems, impaired judgment, inability to control compulsive behaviour, and impaired ability to understand the consequences of one's actions. These distinct set of attributes are capably diagnosed by today's modern assessments. Through no fault of their own, those born with this have brains that do not have the ability to keep them from committing crimes or understanding the consequences. Therefore, normal sentencing, normal incarceration, normal release do not make any logical sense in their regard, and do not fulfill the purposes for which they were created.

The bill comprises four recommendations from the Canadian Bar Association, which represents the thousands of lawyers and judges who deal with this affliction every day. First, it would allow the court to order assessments of an offender to see if they have FASD. Second, if they have FASD, it would allow them to use that as a mitigating factor in sentencing. Third, when a person with FASD is in custody, the bill directs that they be treated specially for that. It would be added to a list of other conditions and groups of people treated specially in the correctional system. Fourth, when a person with FASD is released they would have an external support plan so they do not miss probation, for example, and end up, as judges say, through the revolving door and back in prison.

While prima facie, it is a simple bill, many bills can be improved in committee and I would welcome any logical amendments to it.

My goal is to reduce unnecessary, tragic human suffering, but some may want to know the financial savings. Assessments cost in the order of $5,000. If Ontario were to keep one-half of the early potential 840 FASD offenders out of jail for just one year, at $100,000 a year, it would provide the province with over $40 million a year for more logical, just, humane, effective ways of dealing with these offenders and their afflictions.

It is important to note that in the last Parliament, similar bills to this were twice before the Parliament. One was Conservative and one was Liberal. However, there was not enough time for them to complete the legislative cycle. We will shortly hear some of the excerpts from that debate. Speakers from all parties supported and spoke in favour of that bill.

It is important to recognize that this bill is only a small piece of the much larger puzzle of steps needed to alleviate the suffering, and sometimes tortured existence, of people with FASD. Other steps that need to be taken include prevention. This is a totally preventable condition. They include steps to prevent contact with the justice system in the first place, further research, special services, restorative justice, information sharing, targeted interventions, and supportive living arrangements.

These are important tasks for others, but this bill only deals with FASD sufferers who are involved with the justice system. That is about 60% of them. Yes, I said 60%.

As I outlined at the beginning, and as we can see, the need is staggering. It is estimated that one in 100 Canadians is afflicted with FASD and studies have indicated that, minimally, between 10% and 30% of inmates in today's prisons have FASD, costing us tens of millions of dollars.

This is perhaps why in its call to action No. 34, the Truth and Reconciliation Commission calls on the governments of Canada, the provinces, and the territories “to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD)”.

As I said, I am open to amendments, and I will just give members four questions that people might want to debate in committee.

First, should the judge have the power to make assessments mandatory?

There are mixed views on this. There are already precedents in the criminal justice system for ordering assessments, but if parliamentarians feel that these should not be mandatory, then it would be easy to amend the bill. We do have to protect the offender from self-incrimination during these assessments. If parliamentarians wanted, they could expand the assessment section to clarify Criminal Code assessment powers in general, and that would also include FASD assessments. To the credit of the territories and the provinces, assessments are much more widely available now than in the past.

Second, what about people with other inflictions who are not included in the bill?

First, they are not filling our jails in the thousands like the FASD offenders are; second, if there were a big need in other identified afflictions needing special conditions that could be prescribed, someone would have proposed legislative remedies for that situation; and third, most other conditions are visible and otherwise known to the judge, while FASD is known as the invisible affliction because, until diagnosed, many people, including judges, would not know the offender had FASD and impaired brain and central nervous functions. Indeed, some have high IQs but still have the interaction deficiencies that I outlined at the beginning of my speech. Fourth, if another condition and its deficiencies and special provisions were presented to the committee, these could easily added to the bill now or to the Criminal Code at a later date. To date, no serious evidence has been presented to us of another condition with near the magnitude of a problem that FASD poses in our present day justice system, as identified by lawyers, judges, and FASD workers across Canada.

A third question that members might want to debate in committee is the following. What if, in the rare violent offender FASD cases, the assessment results in the offender being put in protective custody for a longer time than would have occurred without the assessment, for the safety of both himself and the public?

I say, so be it. As an evidence-based government, it is better to have more evidence to make a decision.

A fourth question is, should the external support plan be approved by the judge or the probation officer, and should it be voluntary, after the time of a normal sentence of a person who does not have FASD?

Those are four items we could discuss. As I said, I am open to amendments.

We can save thousands if we act now, from injustice and needless suffering. Perhaps, in the future, we could even add a few more if a condition and its legislative remedies are identified and documented. However, there is no reason to delay. If in fact someone launched and won a challenge and were added to the criminal justice system, then our pioneering efforts would have paved the way for that to happen, for that person or that group to have justice, too.

There is a huge desire on the part of MPs on all sides of the House to improve greatly our dealing with mental health issues in Canada. What a great humanitarian advance it would be if we could improve the lives of thousands with this mental deficiency. It goes without saying that in Canada, and in fact around the world, there is great support for legislative assistance for people afflicted with FASD who come into contact with the legal system. When a similar bill was before Parliament, the Conservative proponent said he had 1,500 stakeholders supporting his efforts. I have my own large network of support.

The Conservative member also said, on June 5, 2014, in Hansard:

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 to support Bill C-583.

Some FASD workers in other countries applaud Canada for these pioneering efforts and want to use them as models in their own nations.

However, it is not only FASD experts in the field who are so passionate and excited about the bill. We must remember that the bill is different from a lot of normal private member's bills that may not have a legislative background. The bill is comprised of only the four recommendations from the Canadian Bar Association, and crafted by its president at the time Rod Snow, thousands of its member lawyers, legal experts, and judges who deal constantly in the courts and corrections system with offenders who suffer with FASD. Who better to craft the legislative improvement?

The purpose of sentencing is to protect the public by presenting a deterrent to offenders so that when they get out, which virtually all of them do, they do not reoffend. However, the damaged brain of FASD offenders often do not connect the crime with the punishment. Therefore, if they do not know why they are being punished, why would we continuously, cruelly, and senselessly incarcerate them, at the cost of tens of millions of dollars, instead of treating and supervising them appropriately on the basis of the reality of the sad truth of their physical brain deficiency?

I want to quote again from the Conservative speech from Hansard, when the bill was before Parliament on June 5, 2014. It is a quote about a young FASD woman speaking at a conference. It states:

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.

Imagine this young woman being tasked with making a number of probation or court appearances or appointments. What happens if she misses an appointment? She would go back to jail because of an administrative breach. These people have a damaged nervous system and little concept of timing, and we are irrationally and unjustly sentencing them to a painful and personal purgatory.

Our current federal justice minister said it as well as anyone I have heard, when she said this to the Canadian Bar Association last February:

The truth is that many offenders have some combination of mental illness and addiction....

Imagine if we could change the system to better align it with the needs of all Canadians. What if an offender's first interaction with the criminal justice system did not become the first in a series? What if it triggered mechanisms designed to address the factors that inspired the criminal behaviour in the first place?

It has been a long day. Let us imagine we are going home. However, what if after we have walked a couple of blocks from here, to our horror, we are picked up by the police and put in jail for a couple of years, far from our friends and family, and we did not know why? Then, when our time was up and we got out of this horrible situation, we were picked up by a police car again and told that we missed an appointment and we were thrown back in jail. We would wonder how people could be so cruel.

Colleagues, let us show what it means to be Canadian and end the suffering of thousands who, through no fault of their own, cannot help themselves.

[Karen Vecchio, Conservative, Elgin—Middlesex—London, ON]

Mr. Speaker, I know within my own riding of Elgin—Middlesex—London I deal with several cases of FASD. Therefore, I recognize it is in the member's community, but we also see it all throughout Canada.

I have some concerns, but perhaps you can help me with this. I have spoken to different people in the justice system to get some advice because I have worked with these clients and want to make sure that the best outcome is there for them. However, I have been assured that when they are in the court system this disorder is being looked at and it is being recognized that they have fetal alcohol syndrome at the time of sentencing, if it gets to that extent.

Am I absolutely wrong on that or have I received the wrong information? Maybe you can clarify that because I have been advised that during the sentencing process for FASD victims, and that is how I see them as it is not their fault, their condition has already been taken into consideration.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

I want to remind the hon. members to speak through the Speaker as opposed to directly across.

The hon. member for Yukon.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, the answer is yes and no. I think it depends on what part of Canada one comes from.

The member mentioned a very good point, which is that it is in certain parts of Canada. In certain areas like mine, where people are used to it, the judges and lawyers understand this and they make those special provisions. Sometimes the judges will go out on a limb without any legislative backdrop to do that and use it as a mitigating factor when maybe they should not.

However, there are parts of Canada where they do not understand this yet, even though people drink and have babies, so it is just as prevalent. They do not know it and do not realize this could be a factor. If they put it right in the system, it gives them the authority so that they are not stepping outside their bounds. Also, it educates those who do not understand that these people need to be treated in a different way.

[Sheila Malcolmson, NDP, Nanaimo—Ladysmith, BC]

Mr. Speaker, this is such a good idea that it is distressing it has not happened already. I was at a conference last week and spoke with women who suffered disabilities. They told me that 40% of women who were incarcerated had suffered a brain injury. Of course, they would have volatile, unexplained behaviour that would get them in trouble and very much go down the path that the member described.

I am in full support of the bill. I hope the member can give us some indication of why we are so far behind on the science of understanding how injuries to the brain affect behaviour and then intersect with the criminal justice system.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I listed some of the concerns. There is excellent research now, so it is speeding up a lot more. Some of the reasons have been more political as opposed to research. I tried to address any legislative concerns people might have with the bill.

That is a good question and it gives me an opportunity to say something brand new. There is some very fascinating research going on now. By testing genes and chromosomes and their reaction to alcohol, there may soon be a way of doing biological testing, which there never was before. This would be a huge advance if that research, which is taking place somewhere the Prairies, is successful. It would be great for all of us.

[Robert-Falcon Ouellette, Liberal, Winnipeg Centre, MB]

Mr. Speaker, I would like to salute the hon. member for Yukon for this wonderful initiative.

I would also like to highlight that in the annual report of the Office of the Correctional Investigator, 2014-15, he indicates that between 10% and 23% of people incarcerated perhaps suffer from this disorder. He states that CSC does not have a reliable or validated system to screen, assess, or diagnose this spectrum disorder at intake and this lack of reliable prevalence data means offenders with undiagnosed FASD may not be benefiting from specialized interventions that take into account an offender's mental health needs, as per legal requirements.

It is something we need to look at and it is well-documented. This is important.

[Larry Bagnell, Liberal, Yukon, YT]

Mr. Speaker, I, the correctional investigator and the member for Charlottetown all spoke at a conference on this. The investigator is quite supportive and understands the correctional system and those needs very well. It is good that the member mentioned it was reflected in his report. It is pretty obvious to the people who work in the jails that there are special needs.

[Michael Cooper, Conservative, St. Albert—Edmonton, AB]

Mr. Speaker, it is a privilege to rise this evening to speak to Bill C-235, introduced by the hon. member for Yukon. l believe this is a very well-intentioned bill to deal with the incredibly complicated issues surrounding fetal alcohol spectrum disorder within the context of Canada's criminal justice system.

Fetal alcohol spectrum disorder, or FASD, is a non-clinical umbrella term to describe individuals who suffer permanent brain damage as a result of prenatal exposure to alcohol. FASD is not new, however. Over the last number of years there has been increased awareness about FASD and its effects.

There is no doubt that persons who suffer from FASD are more likely to be caught up in the criminal justice system. While it is unclear exactly what percentage of offenders within the criminal justice system has FASD, the fact is that because there is increased awareness about it, the issues of FASD are becoming relevant in more and more reported criminal cases throughout our courts.

Our criminal justice system is based upon a number of different assumptions. One of those assumptions is the presumption of voluntariness, that individuals act in an informed manner when they commit a crime. In that regard, it is only in very narrow circumstances that an individual may be exempt from the imposition of criminal liability in a mental health context.

Normally, in order for an individual to be exempt from criminal liability on the basis of mental health, the mental illness defence would need to be made out. In order for that defence to be made out, it would have to be established that the individuals suffered from a severe impairment that went to their ability to comprehend the wrongfulness of their actions or the harm that their actions brought about. It is again only in a very narrow set of circumstances, and indeed there are many instances involving FASD or other mental illnesses that would not meet the threshold for the mental illness defence to apply.

Given the increased prevalence of cases involving FASD, many of the assumptions that have long underlined the criminal law in Canada are being challenged every day, including principles of voluntariness and free will.

One of the most common areas in which the issue of FASD becomes an issue in criminal cases is at the sentencing stage. Bill C-235 seeks to amend the Criminal Code by establishing a presumption that FASD is a mitigating factor for the purpose of sentencing. The principles of sentencing are set out at sections 718-718.2 of the Criminal Code. The most important principle in sentencing is set out at subsection 718.1 of the Criminal Code, which provides that a just sentence is based on the degree of responsibility of the offender.

Whenever judges apply the principles of sentencing under the Criminal Code, including assessing the degree of responsibility of the offender, it is a very complicated task. It is one of the most complicated tasks, usually, in the course of a criminal trial. That task is made all the more complicated when dealing with offenders with FASD.

While Bill C-235 seeks to establish a presumption that FASD is a mitigating factor for sentencing, it should be noted that the courts have not responded in a uniform way on that particular issue. There are many reported cases in which the courts have taken into account the particular facts and circumstances of the case and the particular facts and circumstances surrounding the offender, and determined that FASD should be a mitigating factor for the purpose of sentencing.

However, there are other cases in which the courts have held quite the opposite in finding that FASD should be an aggravating factor. One such case, for example, is the I.D.B. case in which a provincial court judge in Alberta found that it was an aggravating factor. The decision of the provincial court judge was upheld by the Alberta Court of Appeal.

The bottom line is that, any time we are dealing with a case involving FASD, every case is unique, no case is the same, and each case is incredibly complex. I certainly note that Bill C-235 seeks to amend the Criminal Code by creating this presumption. I do have some questions as to whether that presumption is appropriate, given that there is no one-size-fits-all case involving offenders with FASD, and yet to some degree part of Bill C-235 could create a one-size-fits-all approach in terms of sentencing, arguably, in terms of at least establishing this presumption of it being a mitigating factor. That being said, it would be only a presumption.

Second, I do have some concern with the fact that Bill C-235 deals exclusively with offenders with FASD, but it does not encompass offenders who have other illnesses, including the fact that it creates a specific presumption for persons with FASD but would not extend that presumption to persons who suffer from other mental illnesses. In that regard, I have some concern that the bill could perhaps create an inconsistency in the Criminal Code that could potentially be problematic.

In closing, I want to congratulate the member for Yukon for bringing forward the bill. It is an important issue, a complicated issue, and I look forward to the debate this evening on it.

[Sheri Benson, NDP, Saskatoon West, SK]

Mr. Speaker, I rise today to support Bill C-235.

I have had the privilege over the past year since my election as the member for Saskatoon West to meet with a wide range of groups and individuals in my community. One meeting which stood out for me was the one with representatives from the FASD Network in Saskatoon.

The FASD Network of Saskatchewan is a provincial organization that works with families, children, and adults affected by fetal alcohol spectrum disorder. It is a group of dedicated parents who came together in the early 1990s, seeking support and understanding. They have common concerns about the challenges related to parenting children affected by prenatal exposure to alcohol.

When the network began, very little was known about FASD. Families faced stigma, lack of services, and misunderstanding. Now, 20 years later, the network is a community-based, provincial organization with an office in my riding in Saskatoon. Over the years, the level of knowledge and understanding in Saskatchewan communities has grown along with the network. Today, the network offers support, training, and events across the province.

Before I speak to the bill itself, I would like to reiterate and emphasize some facts about FASD, some of which we have heard already.

FASD is the biggest single cause of mental disabilities in most industrialized countries. According to Health Canada, FASD affects nine in every 1,000 babies in Canada, or 3,000 births per year; 300,000 Canadians are currently living with FASD.

As we have heard, FASD is an umbrella term to describe a range of disabilities and diagnoses, the severity of which may be affected by how much alcohol was consumed by the mother and when.

The effects of FASD, such as difficulty reasoning, inability to remember things like appointments, trouble learning from past experiences and not repeating mistakes, can often contribute to other problems, including mental health issues, dropping out of school, trouble with the law, chronic unemployment, drug and alcohol addiction, and homelessness.

Amy Salmon, executive director of the Canada Fetal Alcohol Spectrum Disorder Research Network (CanFASD), has said:

We know that people with FASD are overrepresented--both as offenders, but also as victims--within the justice system. And we know that in many places around the country, people with FASD are also overrepresented among those who are incarcerated.

Living with FASD is about more than a diagnosis. It is also about living with strengths and struggles. It is about living with a disability. All across Canada, infants, children, youth, and adults live with FASD and experience a range of primary disabilities caused directly by prenatal alcohol exposure. No two individuals experience the primary cognitive, behavioural, physical, or sensory disabilities in the same way.

FASD affects not just the individual, but families and their communities as well. There are no confirmed statistics on the number of Canadians living with FASD, but the commonly stated rate is 1%. Using that rate, about 153 Saskatchewan babies were born with FASD in 2014.

It is a lifelong disability, but when we have the right attitudes and put the right supports in place around both the families that are going to be having children and the families that may be living with children who live with FASD, we can set people up for success.

Here are some sobering numbers. An estimated one out of 100 newborns are affected by FASD in Canada and, of that population, 60% of those individuals will have interaction with the justice system. In 2014-15, the cost of incarceration for individuals ranged from $199 for provincial jails to over $300 per day federally. FASD is an invisible disability, thus, opting for FASD testing and referrals to community services and support systems will decrease the fiscal impact of high cost incarceration, while ensuring continuous support from the community.

This combination of individual, professional, and systemic factors converge to result in a disproportionate number of youth with FASD being incarcerated. In fact, youth with FASD have been found to be 10 to 19 times more likely to be incarcerated than youth without FASD.

In another sample of 253 individuals with FASD, 60% reported a history of being charged, convicted, or in trouble with authorities, and 42% of adults had been incarcerated. Recent data from the forensic outpatient clinic in Saskatchewan revealed that the rate of FASD diagnoses was 55% in its adult population. All of the available evidence to date indicates both the necessity and value of incorporating FASD screening and diagnosis into the justice system.

In the absence of a full diagnosis that requires a multidisciplinary team, several screening tools have been developed and validated, including the FASD checklist and the Youth Probation Officers' Guide to FASD Screening and Referral.

With improved understanding and recognition of FASD in the criminal justice system, appropriate and early interventions and management plans can be implemented. Whether encountering the justice system as a witness, victim, or offender, individuals with FASD have unique and often complex needs that are not supported in the current justice system model. With improved training of FASD for front-line workers, individuals with FASD will have access to equitable justice outcomes.

The framework for action on FASD, unveiled in 2003, recognized that:

The costs of FASD to society are high—without taking into account the lost potential and opportunity, direct costs associated with FASD over a lifetime have been estimated at about $1.5 million per person with FASD.

I am in full agreement with FASD Saskatoon when it says it is imperative for Canada to recognize FASD as a cognitive disability that reduces moral culpability and thus should be a mitigating factor during sentencing. FASD is brain damage.

While Bill C-235 should not eliminate culpability, the courts need to question the ethics and fairness around proposing sentences without accounting for organic brain damage, which could result in charges that the person does not understand stem from his or her actions.

It is essential to have mandated training for front-line workers to increase awareness and understanding of the impact an FASD diagnosis has on individuals entering the justice system.

As is so often the case, when formal systems fail, the community steps in to address and support individuals who fall through the cracks. In my community, I am grateful for the work of the CUMFI Wellness Centre and the FASD support network, and now they need government to partner to ensure equity and fairness for individuals living with FASD.

With training, the legal system can adapt to these individuals with FASD and formulate manageable criteria for interaction.

Since the inception of Saskatoon's Mental Health Strategy court, the network staff in Saskatoon have connected with 29 individuals who live with FASD. Of those 29, 22 became part of the support program's case management and were supported through and after the court process. Of these 22 individuals, three are still going through and being supported through the court process. So far, of the 19 people who have been supported and sentenced through the mental health strategy Court, 17 have not re-offended.

The evidence is clear. People with FASD need support systems both within and without the court system.

Because this disability is often overlooked, those working in the justice system need to be trained to recognize it, and there must also be recognition that individuals and their unique circumstances matter in the pursuit of justice.

It is about making the sentence fit the crime and letting judges exercise discretion based on the facts of the case. In other words, it really is the antithesis of the prescriptive, costly, often ineffective, and frequently unconstitutional approach taken by previous governments, which really removed a lot of judicial discretion in favour of a one-size-fits-all minimum sentence.

We in the NDP support quick passage of this legislation, which has been introduced in past Parliaments and enjoyed support across parties. We look forward to studying the bill in committee.

[Sean Casey, Liberal, Parliamentary Secretary to the Minister of Justice and Attorney General of Canada]

Mr. Speaker, it is my pleasure to speak today to Bill C-235, an act to amend the Criminal Code, regarding fetal alcohol spectrum disorder.

I would like to begin by thanking the member for the Yukon for his long-standing advocacy on this important issue. By introducing this private member's bill, he has focused the attention of Parliament on a disorder that goes too often unnoticed in society. For this he is to be commended. He is clearly motivated by a desire to help society's marginalized and in the process create a safer and more just society. This private member's bill proposes to make changes to both the Criminal Code and the Corrections and Conditional Release Act to address the pressing challenge of persons with fetal alcohol spectrum disorder in the criminal justice system.

The issue of FASD was discussed by federal, provincial, and territorial ministers responsible for justice and public safety at their recent meeting this past October. At that meeting, the ministers approved a report from a steering committee of officials who were tasked with examining the issue. The report, which is now publicly available, sets out several comprehensive recommendations for addressing FASD in the criminal justice system. I will return to that report in more detail in a few minutes because it raises some key points.

First, though, I would like to say a few things about FASD itself.

As we have heard, FASD is a diagnostic term used to describe brain damage caused by prenatal exposure to alcohol. When a woman consumes alcohol while she is pregnant, the alcohol can impact the developing fetus and alter both the physical structure of the brain and the brain's capacity to function. This brain damage is permanent and has lifelong and far-reaching impacts on the individuals it affects and on society as a whole. FASD poses challenges for the criminal justice system, because without appropriate supports, individuals with FASD can be impulsive, unable to regulate their behaviour, and may be unable to learn from their mistakes. In fact, one study has estimated that 60% of individuals with FASD end up in trouble with the law.

This concern is compounded when combined with the limited available data about the number of individuals with FASD who are incarcerated in Canadian prisons. The most recent data on FASD in corrections comes from the Yukon. In that jurisdiction, the prevalence of FASD among convicted offenders is at least 17%. This number could in fact be as high as 34%, but given the challenges in confirming maternal alcohol consumption, the diagnosis cannot be conclusively made for these other individuals.

When faced with an overwhelming challenge to the criminal justice system such as FASD, often the first instinct is to look for a legislative solution. Amending the Criminal Code to specifically address FASD seems like an obvious place to start. However, as with many complex social issues, the most effective solution is often just as complex and may not be found in legislation. I would encourage all of us to think about the most effective way to truly have a positive impact on the lives of people with FASD.

It is worth noting that the report approved by federal, provincial, and territorial ministers in October, which I mentioned earlier, was the product of several years of study by the Steering Committee on FASD and Access to Justice comprised of officials from across the country. Their report did not recommend specifically naming FASD in the Criminal Code because that would single out one disorder to the exclusion of all others. Rather, it recommended further study of whether a more general assessment power for all mental disorders, including but not limited to FASD, would be a useful reform to assist courts in sentencing persons who are living with these conditions. Such a recommendation, especially from this source, merits consideration.

I would like to spend my remaining time discussing some of the specific proposals of Bill C-235 that raise some thought-provoking issues.

Bill C-235 proposes a legal definition of the term “fetal alcohol disorder” for the purposes of the criminal law. I note that this is slightly different from the medical term that is used to describe the condition, which is “fetal alcohol spectrum disorder”.

As part of the legal definition, the bill also lists some common symptoms of FASD, including impaired mental functioning, memory problems, and the inability to control impulse behaviour. I would note that this element of the bill would be a significant change in the Criminal Code, which currently does not single out specific disorders for differential treatment. The current approach is to use the general definition of mental disorder in section 2 of the code, which, according to the Supreme Court of Canada, can include an “illness, disorder, or abnormal condition which impairs the human mind and its functioning”.

I am given to understand that FASD is already considered a mental disorder for the purpose of criminal law, so it is entirely fair to ask whether it is necessary to create a separate definition specifically for FASD. Should we be concerned that this may result in pressure to single out other disorders in the Criminal Code?

The bill also proposes to permit the courts to order FASD-specific assessments for the purpose of bail and sentencing. It would require a sentencing court to adjust the sentence of the offenders if it was shown that they had FASD and that the FASD contributed to the commission of the offence.

These elements of the bill appear to be aimed at ensuring that the court has the necessary information to make appropriate decisions about a particular individual at the bail stage and to be sure that any sentence imposed is proportionate to the degree of responsibility of the offender. These are commendable objectives and ones that I know are shared by all those who advocate for a fair and effective criminal justice system.

The proposal for an assessment at the bail stage raises questions about the potential impact on the presumption of innocence and the liberty interests of accused persons who are suspected of having FASD. In particular, the bill would permit an accused to be held in custody for up to 60 days in certain circumstances while the assessment was undertaken. Given that this would occur before any trial on the merits of the charge, or potentially even before the bail hearing itself, it is possible that an assessment could in fact work to the detriment of the accused in some cases.

At the sentencing stage, it is fair to question whether the objective of imposing a proper sentence should only apply to individuals with FASD or whether there may also be a pressing need to consider the relevance of mental disorders or disabilities more generally, as the report from the federal-provincial-territorial steering committee recommended.

Finally, the bill proposes amendments to the Corrections and Conditional Release Act, which would further require the Correctional Service of Canada to provide FASD-specific programming for individuals with FASD who are serving a federal sentence.

In conclusion, I would like to thank the member for Yukon for providing us with an opportunity to debate this important issue facing the criminal justice system. As he indicated, this is an issue that was presented in the form of two private member's bills in the last Parliament. They never did make it to the stage of having gone through committee, in part because of the call of the election and also in part because of some determination by the former member for Yukon to withdraw the bills to have them converted into a study.

It is a timely debate. It is one that needs to be had. The member for Yukon is doing the right thing by bringing it forward, and I look forward to hearing from other members of the House on this important issue.

[Len Webber, Conservative, Calgary Confederation, AB]

Mr. Speaker, I am pleased to rise today to contribute to this important debate on Bill C-235, which aims to assist those with fetal alcohol spectrum disorder.

The proposal before us today is to require that the courts take into account that fetal alcohol spectrum disorder may be a mitigating factor in the Criminal Code infraction and should be taken into account during sentencing. It also proposes to address the fact that those with fetal alcohol spectrum disorder, or FASD, would require additional support to reintegrate into society following the serving of any sentence. There are a number of other proposed changes, but the principal focus are those I have just outlined.

My perspective on this subject is somewhat different than many. In the past, I served on the Alberta Alcohol and Drug Abuse Commission for a certain number of years before I began my political career. Through direct interactions with people with FASD, with those working with them, and with those affected by their actions, I got to know the issue quite well. However, just when we think we have seen and heard it all, something happens to remind us that this subject is so broad and complex that a lifetime is not enough to become an expert in this field.

FASD cannot be cured. It affects about 1% of the Canadian population. Of course, we know that the rate of incidence is much higher among certain populations and in certain areas of our country. These communities are looking to us for help, understanding, compassion, and strength. As I mentioned before, I served on AADAC, the Alberta Alcohol and Drug Abuse Commission, and this work took me to many communities around Alberta, communities impacted by FASD. Sadly, this is a common issue in first nations communities, often in remote locations, which makes education and treatment work much more difficult.

Having also served as Alberta's aboriginal relations minister for a number of years, I also saw first hand the devastating outcome of Alberta's aboriginal communities from this increasingly common condition of FASD.

One of the challenges is identifying this disorder early in order to deal with it appropriately. The average assessment alone costs around $4,000 to $5,000. Then, there is the never-ending stigma attached to this mental illness. Families often do not even seek help for their children because of this alone.

Sadly, we know that those born with FASD are already facing an uphill battle in life. Many are born into poverty and often into a world of substance abuse, neglect, and endless other challenges. We know these conditions are the base conditions for problems later on.

FASD victims, and I call them victims as they suffer due to the negligent actions of others, specifically their biological mothers, are more likely to be involved in the criminal justice system and experience health and learning challenges.

Before I go any further, this bill will not improve or change the situation for people affected by FASD. We know judges already, in every court case, are required to exercise their judgment and discretion when sentencing. I do not think the bill will change that.

As with many mental health issues, talking publicly about it goes a long way to helping everyone understand and cope. The justice system is becoming much more aware everyday of this mental illness. I am concerned that we are singling out FASD for special consideration from other mental health conditions. We need to understand that the situations faced by one's mental illness often and significantly overlap with those faced by another. Why only help those suffering from one mental condition?

As a nation, we are quickly opening up the conversation on mental health issues, and this is a good thing. It was inevitable that we would end up discussing mental health in terms of the Criminal Code. We know that those with mental health issues are at a much higher risk of having a relationship with our criminal justice system.

Our justice system holds Canadians to a certain standard of conduct and a certain standard of compliance. It presumes rational thinking and it presumes certain sensibilities.

We know that mental illness makes these societal expectations go beyond the reach of those suffering from a mental health condition. The challenge is balance. How do we balance the expectations of large portions of a population that expects people to follow all the rules with another portion of the population that is not fully capable of doing so? If something goes wrong, who is the real victim? I say they both are.

We need to be compassionate and understanding to realize that both are victims, one long ago and one more recently. This is the challenge that we face as a society, as 90% of those with FASD have behavioural issues and more than 40% have mental disabilities and intellectual impairment. More than 40% have issues with depression. Often these issues overlap and make treatment even more difficult to tailor to that particular individual.

The statistics are really shocking. According to research by University of Alberta Professor Jacqueline Pei, 95% of people who suffer from FASD have been diagnosed with mental health problems such as anxiety, depression, and schizophrenia. This makes daily functioning in our society an extreme challenge and explains their high interaction rate with the criminal justice system.

The executive director of the Fetal Alcohol Syndrome Society of Yukon explained it before a parliamentary committee quite succinctly. Wenda Bradley said that FASD suffers can often speak at a normal adult level, but end up understanding at a grade four level. Imagine how this causes issues on the streets in their interactions with the police or when they seek medical care.

As the May 2015 parliamentary report by the Standing Committee on Justice and Human Rights noted, it is estimated that each individual with FASD creates roughly $1.5 million to $2 million in direct costs to the federal, provincial, and territorial governments over their lifetime. Each individual is cause for $2 million in costs.

Many witnesses reported that people who care for a child with FASD also bear a heavy burden psychologically, socially, and financially, as well as in their professional and marital lives.

A great deal of work was done on this issue in the last Parliament and the conclusions were clear. We need better, more rapid diagnosis, and we need timely and appropriate interventions to mitigate the negative impacts of this disorder.

The bill, while well-intentioned, fails to capture the fact that this FASD involves a variety of mental illnesses and disorders that result in criminal justice issues.

I urge my colleagues to do what they can to assist FASD affected people. My experience has shown that they often cannot speak for themselves. They know what they need, but they often cannot articulate their needs.

They often live beyond the reach of urban support programs. They often lack any family support for treatment. They often suffer alone. I believe that we can do a better job of helping them before they become part of our criminal justice system.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

The hon. member for Abitibi—Témiscamingue has three minutes remaining, which she can use when debate resumes.

[Christine Moore, NDP, Abitibi—Témiscamingue, QC]

Mr. Speaker, I am pleased to rise in the House today.

We need to be aware of the damage done by FASD, which is often under-diagnosed. It would be nice if women were as honest as possible with their doctors, but it can be uncomfortable for them, especially if they are grown 20-, 25-, or 35-year-old women, to admit that they cannot help getting drunk every night even knowing it can harm their baby.

That is why the disorder is often under-diagnosed, and that can have significant repercussions. It often becomes clear later on, but many people have grown up being told they were unruly when really they were not properly diagnosed.

This addition to the Criminal Code is about recognizing that FASD can cause defects such as impaired judgment that make it hard for people to tell right from wrong. This will help make better treatment available for people convicted of a crime, ensure they receive appropriate behavioural therapy, and make sentencing commensurate with their intentions.

It is good to have this bill back in the House. I had an opportunity to speak to the subject when a similar bill was introduced by Ryan Leef, a member for Yukon who was not re-elected. I sincerely hope that we will be able to adapt our justice system to this important reality.

[The Assistant Deputy Speaker, Liberal, Anthony Rota]

The time provided for the consideration of private members' business has now expired, and the order is dropped to the bottom of the order of precedence on the Order Paper.