Justice Committee on March 23rd, 2015

[Howard Sapers]

Absolutely, and I actually take your question to heart. It is related to the earlier question as well. Where do you intervene and where would we get the most value for an early intervention? Typically, prior to somebody coming into negative contact with the criminal justice system would be the place to do that. Often, people like ambulance attendants and police constables are the first contact for people. If there were resources that were available to them, other than arrest and charging, that would probably make a huge difference.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Even the social workers apprehending children of parents who have FASD would have to struggle with that, but enough said.

What kinds of impacts do you think more adequate training would have on the criminal justice system? Do you anticipate that it would have a significant impact in actually dealing with the rehabilitation of offenders struck with this?

[Howard Sapers]

If you'll permit me to speculate with you for just a minute, when I think this through, this is what occurs to me. We have a population of individuals whose lack of judgment and behaviour has brought them into conflict with the law. It's landed them in a federal penitentiary. That same behaviour that's linked to the disadvantage they have as a result of being FAS-disordered follows them into the institution, so that same lack of judgment, the same behavioural challenges, follows them into the institutional environment.

Prisons are really based on people being able to obey rules, follow instructions, and if you don't, you again bring negative attention to yourself. These are the individuals who are constantly running afoul of institutional rules and regulations, being charged with both minor and major infractions of institutional rules, perhaps receiving punitive sanctions inside because they've been charged with a major infraction where they've had to appear before an independent chairperson. These are folks who don't fair well in front of parole boards. They tend to spend longer time in higher security levels, and they tend to attract segregation placements, etc., so their correctional outcomes are compromised. That's a burden on the system, as well as being a burden on them. They're also more difficult to manage and more expensive for the system.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

Your suggestion is that this type of a system wouldn't bring very good results in rehabilitating them.

[Howard Sapers]

I think that the ability for rehabilitative programming diminishes based on the ability of the individuals to successfully participate in the programs. What we do know from the little bit of research that's been done is that those people who we know are FAS-disordered have a lower participation and completion rate in those correctional programs.

[Robert Goguen, Conservative, Moncton—Riverview—Dieppe, NB]

When you suggest that FASD should be a factor in mitigation, would you go so far as to say that perhaps rehabilitation should be favoured in all instances with these people? Their sense of culpability really isn't there, not because they want it to be or don't want it to be but because they're afflicted.

[Howard Sapers]

I want to make sure that I understand your question. In terms of the emphasis on rehabilitation, I think that both aspects of the Correctional Service of Canada's dual mandate of safe custody and preparation for release start on the first day of the sentence, so engaging somebody in the array of programs and opportunities that will prepare them for safe release back to the community is very important. I think that the service will have to do that regardless of the neuropsychological health of the individual. But it's a matter of preparing that offender realistically and also providing programs that they're going to be able to benefit from based on their own intellectual abilities.

I think my colleague wanted to add something.

[Dr. Ivan Zinger]

With respect to correctional programs, the Correctional Service of Canada basically delivers cognitive behavioural treatment to many offenders. The treatments are based on three principles.

The first one is a risk principle, which states that more intensive treatment should be given to higher-risk offenders. The second one is the needs principle, which suggests that you should target criminogenic needs—areas that are linked with reoffending. The third is the one we're concerned with here. It is called the responsivity principle. It suggests that the style and mode of learning should be taken into account when delivering a program. When that is done, people with FASD can go through treatment successfully and make some gains and lower their recidivism rate.

The service is required to look at responsivity. That means, for example, that if there is a cultural element, it should deliver the program in cognizance of that different culture. But it also comprises the notion that any sort of cognitive impairment should also be taken into account. That might mean providing more repetition, being clearer and simpler in the delivery of the program, or focusing more on reinforcement.

You can have some good outcomes, but that result is predicated on the notion that you are screening people systemically to see what types of impairments they have and that you have the ability to adapt the programs. As Mr. Sapers said, there's no such thing as a program specifically for FASD currently in the system.

[The Chair, Conservative, Mike Wallace]

Okay.

Thank you very much for those questions and answers.

The next questioner, from the Liberal Party, is Mr. Casey.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

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

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

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

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

[Howard Sapers]

Thank you.

It's a tall challenge for the Correctional Service of Canada. Over the years, we've made many recommendations that the Correctional Service of Canada tailor programs for individuals who face a variety of difficulties and challenges, whether they be age related, deficits that have resulted in some intellectual impairment or some physical impairment, or for people with different cultural backgrounds, etc.

The Correctional Service of Canada tries to accommodate all the needs that are identified but is also very focused on doing individual case management and case assessments. Every offender who comes into the system is screened and assessed. Criminogenic needs are identified and the kind of program plan that Dr. Zinger was talking about is developed based on the RNR model of program delivery. Programs are made available throughout an offender's sentence, and again, hopefully to prepare them for safe release.

The difficulty in accommodating the array of individual needs is that it becomes very time-consuming. It becomes very intensive from a human resources standpoint. The correctional system only has the ability to intervene for that period of time, for the sentence, and if it includes a health-focused treatment delivered by a health professional, then of course you have issues of consent in order to get involved.

The service is left with trying to accommodate the entire range of individual needs that can be identified at the same time as administering the sentence according to the order of the court. It's a very difficult balance to achieve. That's not to say that there's an excuse for the Correctional Service not to accommodate individual needs. Certainly, the service has to accommodate physical disabilities. The service has to accommodate a whole range of issues right now. Increasingly, the service is recognizing the need to accommodate mental health issues, and we've certainly made a number of recommendations about how the service can increase its responsiveness to mental health needs in corrections.

[Sean Casey, Liberal, Charlottetown, PE]

So a major part of the problem is resources. Would that be one conclusion that I could draw from your response?

[Dr. Ivan Zinger]

Resources of course may be part of the answer. I think the challenge is the complexity with regard to the offender population and the profile of that inmate population. What we've seen over the years is that now we have over 60% of the inmate population requiring psychological or psychiatric services.

On average, the educational attainment of offenders is a grade 8 education. We have 75% of the offenders coming into the system with substance abuse issues. About two-thirds of them were intoxicated at the time of their index offence. Then you add the 30% who have hepatitis C and the almost 5% who have HIV. Almost a quarter of the inmate population is aboriginal. Almost 10% of them are black offenders. It becomes very difficult for the Correctional Service of Canada to try to address the employment needs, the mental health needs, and the vocational needs. It's a really big challenge, and I would certainly say that resources absolutely sometimes can be a part of the challenge here.

But again, this is done at the last stage of the criminal justice system, in corrections, and we should really think about trying to divert these individuals and consider that perhaps incarceration is not the way to go. There must be other programs and alternatives to incarceration, and better services upstream.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you for raising again the issue of upstream treatment, upstream options. What are the gold standards? What are the best examples out there of upstream, effective options?

[Howard Sapers]

Particularly in dealing with offenders who have mental health issues, where we see the best success is where there are integrated approaches that involve how the police respond, and community action teams that are in place in different municipalities across this country where there is good and open information sharing between the health and justice sectors.

We see successes through the operations of specialty courts such as mental health courts that bring a specific focus to styles of interventions and supports that are available to people who are suffering from mental health issues but are also in conflict with the law. We also see successes where there is emphasis and focus on building communities of support during all of those transitions between court and corrections, between corrections and back into the community.

We know that building responses and supports around safe and affordable housing is very important to this population. We know that repeated contact with those individuals who are part of that support team is very important, and for many we know that efforts aimed at compliance with medication is very important and key to community success as well.

It's those components that make positive differences.

[Sean Casey, Liberal, Charlottetown, PE]

I'm interested that none of the items you just spoke to included amendment of legislation, but I appreciate and understand that all too often resource allocation is the answer as opposed to legislative amendment.

I would like a further comment on the bill that's been withdrawn. If that bill was to be reintroduced and improvements could be made, what improvements if any would you recommend?

[Howard Sapers]

I'm not giving up hope on legislative leadership in this area. My key message would be that there are a number of people involved with neuropsychological deficits who are involved with the criminal justice system. FASD is a huge component and very important, but it's not the only source of those deficits, so I would broaden the scope of the bill to include other mental health issues in terms of mitigating factors.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers.

Our next questioner is from the Conservative Party, Mr. Wilks.

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

Thank you, Mr. Chair. Thank you, Mr. Sapers and Mr. Zinger.

Let's continue on down that road with regard to what you said about including all forms of mental illness and disability.

I wonder if you could give us some idea of where the door would close, because at some point in time regardless of who sits in this room or any courtroom, you have to close the door and say, I'm sorry but you're being incarcerated for X even though we recognize there is a mental issue that needs to be dealt with. He or she still needs to move on.

Maybe talk about that just for a little bit.

[Howard Sapers]

Sure.

The sentencing provisions of the Criminal Code are based on a principle, to some extent, of restraint and that incarceration should be used as a last resort. Then it's a matter of sorting out when that last resort has been reached. The recent experience has been growth in the prevalence of individuals in the correctional system that have a diagnosed significant mental health disorder. There is also an increase in the prevalence of those people who become ill while they are incarcerated. The criminal justice system is trying to sort out your question right now. We're seeing it with debates about the “not criminally responsible” provision. We're seeing it with evaluations of mental health courts. There is a general recognition that prisons should not become asylums, and we should not be criminalizing people's ill health. That does not take us away from the fact that some people who are mentally ill also come into conflict with the law.

Your question is exactly the focus of a tremendous amount of attention within the criminal justice system right now. I have been involved with training and explorations with police, judges, prosecutors, and correctional system operators to address exactly that. How do we stream people into options other than carceral options, and whose job is that?

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

In my previous life as a police officer the challenge that always existed was that we would identify someone we knew had significant issues, whether it be FASD or anything else down the line, but it was not the responsibility of the police to be the social worker. We would hand that off to, hopefully, the appropriate agency. The challenge is that you would continually run into the same person, and it becomes frustrating for all agencies because you recognize that person needs help, but no one knows where to go.

It's interesting, Mr. Sapers, in your comments you may have hit the nail on the head when you said paragraph 718.2(e) of the Criminal Code, which was enacted in 1996, expresses the need for judges to consider all other sentencing alternatives before sending an offender to prison. It's already there. It's been there for about 20 years. The challenge is that the courts are reluctant to do it at the best of times.

When the police come into contact with an individual who is identified with FASD, or any other form of mental illness, and they're filling out the RCC, the report to crown counsel, could there not be some form of identification in that form that says, “We've identified that this person may need some form of help and we strongly suggest to you, crown counsel, to make it emphatic when you're presenting toward the courts that alternative means should be found as required under paragraph 718.2(e)”? That puts the onus back on the courts.

[Howard Sapers]

I think that there are a number of potential procedural fixes like that, but I've had the crown tell me about the challenges they have when it comes to satisfying the court when it comes to bail and remand decisions. Defence counsels talk about the challenges that they have because the person has no fixed address or doesn't have anybody who will provide surety. There are all kinds of things.

I've had—from your world you know this—police say that they can't tie up endless resources sitting with people in emergency rooms and hospitals. When the hospital has a zero tolerance policy and when somebody's behaviour is so disruptive that they call the police because they want somebody arrested, that's what they need. Yes, everybody recognizes that this is somebody with a mental health issue, but it's also creating another problem in terms of the operation of the hospital.

All of these things go into the mix, including repeated contact. As you say, it's often the same person you see all the time. It's repeated contact. Very sadly, in criminal justice, it's one of the only social initiatives, social programs, public services, where we continue to do the same thing over and over again and expect a different result. It's very frustrating for the police to have to deal with these individuals time and again and it doesn't affect change.

But I think you're right. There are a number of procedural fixes that could have a positive impact.

[The Chair, Conservative, Mike Wallace]

Our next questioner is from the NDP, Madam Péclet.

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

Thank you very much, Mr. Chair.

My thanks also to our witnesses for being with us today.

In a reply you gave earlier, you said that emphasis should be put on prevention. I understand the premise that we want to invest in education and awareness. I think that we all agree on that.

A Department of Justice study mentions that the courts have no particular approach in FASD-related cases. You also said that there are other issues related to mental health. With autism, or other disorders of that kind, the courts have no real approach either. The study continues: “There was no consistent approach to responding to offenders or victims with FASD mentioned in the case law.” It also says that, in most cases, it was not incorporated or considered in the judicial decision-making.

Do courts have difficulty in handling all the cases where there are mental health issues? Could you tell me more about that?

[Dr. Ivan Zinger]

Both courts and communities are realizing more and more that individuals with mental health issues are often criminalized and brought to court, to the extent that a number of cities in Canada have set up specialized courts to deal with cases of that kind. This is a very good attempt to redirect individuals to solutions other than incarceration, such as making them undergo treatment appropriate to their mental health condition.

An unpublished study by Professor Steve Wormith at the University of Saskatchewan took another look at the effectiveness of the courts that deal with mental health issues. The study shows that there was a 17% reduction in the recidivism rate for people who went through that kind of court compared with those who went through a court in the traditional system.

It is certainly valid to ask judges to be more proactive and to know exactly what kind of person they are dealing with when a penalty has to be imposed. If there are problems related to FASD or other mental health issues, judges have to be sure that those aspects are considered and the decision they hand down is fair and equitable.