That's fine. Please tell me if I go over. I have one of the fancy watches that's not very specific, but it's very stylish.
Thank you very much for the invitation. My name is Jonathan Rudin. I'm the program director at Aboriginal Legal Services of Toronto. At Aboriginal Legal Services we work with many clients who are affected with FASD. We also have a project funded by the Law Foundation of Ontario. It's a research project that provides diagnoses for aboriginal inmates who are on remand and awaiting sentence. That's a research project to see what the impact of an FASD diagnosis is on sentencing. When judges know something about the individual does that change the sentence?
The other reason I think I'm here is that I'm also the chair of the FASD Justice Committee. The FASD Justice Committee is responsible for a website: FASDJustice.ca. It is the major site in Canada for information about FASD and justice. It is also used by people around the world. We've had 1,710,650 visitors to the site since we began about 10 years ago. The site is designed for justice professionals. It contains a list of reported cases on FASD across the country, along with specific information that's useful for judges, and crown and defence counsels, in terms of working with people who are affected with FASD.
To begin my presentation let me emphasize that, although I work with Aboriginal Legal Services, FASD is not an aboriginal issue. We do not know—and I know Ms. Popova will be speaking about this—the prevalence rates of FASD in the general population in Canada. It's impossible to assume or to guess that those rates are higher in the aboriginal population. We have no way of knowing that. What we do know is that aboriginal people are overrepresented in the criminal justice system. We also know that people with FASD are overrepresented in the criminal justice system. It stands to reason that among those people who are found to have FASD in the criminal justice system a large percentage will be aboriginal. Contributing to that is the fact that, when you look at our case law on our website, awareness of FASD is greater in western Canada than it is in eastern Canada. In terms of a sort of bias, because aboriginal people make up a significant proportion of those before the courts in the west, you see a preponderance of people with FASD who are aboriginal in reported cases. I caution against making any other assumptions. It's also fair to say that the aboriginal community has been at the forefront of working toward prevention and coming up with strategies to work with people with FASD.
Our understanding—and that means our understanding as legal professionals and also in the medical field—about FASD has changed over time. The original notion of people with FASD as those people who had particular physical characteristics we now know is not the bulk of people who are affected with FASD. The majority of people with FASD have no discernible physical characteristics that would single them out as opposed to anyone else. The difficulty and the challenge for the justice system is that in court the FASD-affected individual looks like anybody else. In our daily lives, and certainly in the courts, we work on a couple of presumptions.
One is that, unless we are told differently, the people who come before us are fully capable and competent, and have the same level of cognitive development that we do. We look at someone and we say, “You look like you're 22, you sound like you're 22 because you can speak, you seem articulate, and I'm going to assume you're 22.” The criminal justice system works so quickly that we often don't have any stop signs. There's nothing to say to people, “Wait, take a look at this person.” If you walk into court with a cane and dark glasses, we know you're blind and we take that into account. FASD is largely an invisible disability and that is why it's so important that we find ways of addressing it in criminal justice. Failing to do so means that we miss these individuals and we don't sentence them properly.
There is even now, when you look at the case law, a lot of misinformation about FASD. It is not unusual to hear judges or crown attorneys arguing that because someone has FASD they should be put in jail. The assumption is that their behaviour can't be dealt with in the community.
Some people—mistakenly, I think—will say, “If you have FASD, you have difficulty. You need structure in your life. Where can we give you structure? I know where we can give you structure: jail. There's structure in jail.” But what's missing in that analysis is that people with FASD are often heavily exploited when they're in jail because of their social limitations. They try to make friends and they are very easily exploited.
The other difficulty with jail is that most of the programming in jail is not in fact designed for people with FASD. The trend in corrections now is to move towards group work and programs that are based on cognitive behavioural therapy, where you think about what you did, talk about what you did, talk about why it didn't work, and those types of things. Those do not work well with people who have FASD. People with FASD often don't work well in groups because they don't pick up on the social cues and they don't do well with cognitive behavioural work. This is not to say that people with FASD cannot learn, because they certainly can. The problem is not with them; the problem is the way we deal with people with FASD.
I also want to draw the attention of this committee to a recent decision by the Judicial Committee of the Privy Council in the U.K. We don't talk much of the Judicial Committee of the Privy Council, because in Canada we have not relied on it since before World War II, but they've just issued a very interesting decision in a New Zealand case called Pora v. the Queen. The decision was delivered on March 3, 2015. The case is significant because it's about an individual who was convicted of a murder in New Zealand and who on appeal, while he was in custody, was diagnosed with FASD. The significance of that diagnosis for the Privy Council was that it threw his confession into question. He confessed to an offence, and the jury obviously believed that confession, but the judicial committee said that could not be relied upon because the effects of FASD on an individual make their confessions totally unreliable.
I don't have time here, obviously, because I don't want to take time from anyone else, but it's a very significant decision. There's a discussion of specifically the FASD analysis, the FASD evidence, on pages 11 to 17 of the decision. What's important here is that absent the diagnosis, which was only obtained when Mr. Pora was in custody subsequent to having been convicted—it was in the process of the appeal that he was assessed—only then did the evidence come before the judicial committee.
The judicial committee, having heard and read the evidence of the two experts who diagnosed the individual with FASD, concluded the following, which is at paragraph 55:
The evidence of Dr McGinn and Dr Immelman unquestionably establishes the risk of a miscarriage of justice. It provides an explanation as to why Pora’s confessions may have been false. This is of central and critical importance to one’s approach to the question whether his convictions can be regarded as safe.
I really commend this decision to you, because it is the latest, and we have not had a significant decision on FASD like that in Canada at this point.
I have one last point before I turn it over. I do want to stress that what is very important in the context of FASD is a diagnosis, not the fact that the person has been assessed. If I'm defence counsel, and I stand up and say, “Your Honour, my client has been diagnosed as being affected with FASD”, without actually having that diagnosis, without knowing how that manifests itself in the client, the diagnosis is not particularly helpful.
It's very important that if we get diagnoses they're provided to the court, because it's only then that the court can truly take into account the circumstances of the individual.
Thank you. Meegwetch.