Evidence of meeting #67 for Justice and Human Rights in the 41st Parliament, 2nd Session. (The original version is on Parliament’s site, as are the minutes.) The winning word was brain.

A recording is available from Parliament.

On the agenda

MPs speaking

Also speaking

Howard Sapers  Correctional Investigator, Office of the Correctional Investigator
Ivan Zinger  Executive Director and General Counsel, Office of the Correctional Investigator
Jocelynn Cook  Scientific Director, Society of Obstetricians and Gynaecologists of Canada
Gail Andrew  Medical Director, Fetal Alcohol Syndrome Disorder Clinical Services, and Site Lead, Pediatrics, Glenrose Rehabilitation Hospital, Alberta Health Services
Rodney Snow  As an Individual
Svetlana Popova  Assistant Professor, University of Toronto, and Senior Scientist, Social and Epidemiological Research, Centre for Addiction and Mental Health

3:30 p.m.

Conservative

The Chair Conservative Mike Wallace

I'm going to call this meeting to order. This is the Standing Committee on Justice and Human Rights, meeting number 67. According to the orders of the day we're dealing with the order of reference of Wednesday, November 26, 2014. The subject matter is Bill C-583, an act to amend the Criminal Code, regarding fetal alcohol spectrum disorder.

We have a number of witnesses today. I'm going to do a little housekeeping first if you don't mind, committee. We did invite everybody back who was at the last meeting, at which we were interrupted with numerous votes. One person is joining us in the second hour and a half who had given their presentation but we didn't give an opportunity to ask questions. Three of the witnesses in the second hour are on video conference, so it will take a few minutes to get that set up, and we have a fourth witness who will be here with us in the room.

We have two witnesses with us today, but let me start with this. Technically the committee is to report back to the House on Thursday. There is no way that we're going to have a report by Thursday. My recommendation to the committee is that we ask for an extension of 45 days. We'll do it within 45 days, but that's the maximum we can ask for. We'll get a motion here and it will go to the House. It will get voted on, I guess. I could ask for unanimous consent to see if we could get it done that way. It's one less voting round for us. I need a motion to that effect. If we pass it today I would bring it to the House tomorrow, and we would have it passed before Thursday.

3:30 p.m.

Conservative

Bob Dechert Conservative Mississauga—Erindale, ON

I so move.

(Motion agreed to)

3:30 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you very much.

The other thing I wanted to let you know is that we have four meetings in this section before there's another constituency week. The mover of the motion that we postpone Bill C-587, increasing parole ineligibility, has come back to me and asked that we do clause-by-clause on it, which is fair. We were about to do it but he asked to look at the bill, and he wants it done now. I have scheduled next Monday to do clause-by-clause on Bill C-587, the parole ineligibility act.

Next Wednesday after that I think we should have a subcommittee on agenda. I can't get the minister here. I thought I could get the minister here to start Bill C-35, Quanto’s law, but I can't get him here because he's not available that day. What I thought we would do is get together as a subcommittee, figure out the schedule for the last eight weeks, and I'll do my best to find out when the minister is available for mains and for Quanto’s Law, and all that. That is the schedule unless you have any questions.

We're dealing with this today. We're dealing with it on Wednesday with more witnesses, then clause-by-clause on Bill C-587, and then a subcommittee on agenda in these two weeks. Okay, thank you very much. Thank you for your patience on that.

Our witnesses today for the first hour are from the Office of the Correctional Investigator. Mr. Sapers is the correctional investigator and Mr. Zinger is the executive director and general counsel. The floor is yours for 10 minutes or longer, if you need it.

The floor is yours.

3:30 p.m.

Howard Sapers Correctional Investigator, Office of the Correctional Investigator

Thank you very much, Mr. Chair. I appreciate it.

Thank you, committee, for the invitation to appear before you this afternoon in the context of your study of Bill C-583.

I'll speak about some of what it is that we know about the prevalence of fetal alcohol spectrum disorder, and as important, some of what it is that we don't know about the disorder in corrections, and the specific outcomes for federally sentenced offenders affected by fetal alcohol spectrum disorder. I'll comment on the capacity of the Correctional Service of Canada to meet rising mental health care demands in federal prisons, and conclude with some considerations that I believe are relevant to your study of this proposed legislation.

With respect to the prevalence of FAS disorders amongst individuals involved in the criminal justice system, there is no one conclusive or confident dataset, though it is an area that has attracted more research and attention in recent years. Estimates for FAS-disordered individuals amongst correctional populations vary significantly, with numbers typically ranging from about one in 10 to nearly one in four.

It is difficult to reliably establish prevalence rates in correctional settings as there is considerable variation in methods of diagnosis, testing, and case identification. It is complicated by the need for some diagnoses to confirm a history of maternal drinking in a population who were often the victims of abuse, neglect, or subject to intervention by child protection authorities. The impact and interplay of socio-economic factors and criminal justice system involvement in disadvantaged settings suggests that FASD is a substantial problem among youth and adult correctional populations. FASD is a lifelong, clinically recognized disability; an afflicted person does not outgrow their brain injury.

The research to date suggests that individuals with FASD are at increased risk of coming into contact with the criminal justice system due to neuropsychological deficits in judgment, difficulty understanding consequences of behaviour, inability to make connections between cause and effect, impulsivity, drug or alcohol misuse, and a failure to learn from past mistakes. The range of cognitive deficits that characterize FASD have important legal and practical implications for the criminal justice system.

As a group these individuals challenge some of the underlying premises of sentencing, namely that defendants understand the relationship between actions, outcomes, guilt, culpability, and punishment. The response of the criminal justice system may, in fact, exacerbate individual difficulties associated with fetal alcohol spectrum disorder. For example, sending an FASD-affected person to jail to “learn a lesson” may be an exercise in futility. A sentence founded on specific or general deterrence is not likely to be meaningful for an FASD person.

In 2011 the Correctional Service of Canada conducted one of its first comprehensive research studies of FASD prevalence in federal corrections. It found that amongst a sample of newly admitted adult male offenders aged 30 and under, 10% of the participants met the criteria for a diagnosis of FASD. Another 15% of the sample met some of the diagnostic criteria, but were missing information critical to making or ruling out a positive diagnosis. The rate of FASD amongst this sample is 10 times higher than the current general Canadian incidence estimate, which according to Health Canada is about nine in 1,000.

The research also demonstrates that those diagnosed with FASD had a higher risk and needs rating compared to other offenders. FASD-affected offenders had severe neuropsychological deficits in attention, executive functioning, and adaptive behaviour. They were much more likely to have had multiple convictions and previous periods of incarceration as both youth and adults. Offenders with FASD have more problems adjusting while incarcerated. They are less likely to have completed school, and more likely to have dropped out at an earlier age than other offenders. They are more likely to report a personal and family history of abuse, substance abuse, and delinquency.

Research confirms another important finding that goes to stigma and perception, which is that the level of violence used during the commission of their crimes was not markedly different from non-FASD affected offenders.

Significantly, none of the offenders diagnosed in this research study had been previously identified as being FASD-affected. As the research concludes:

There is a population...within Correctional Service Canada who are affected by FASD who are currently not being recognized upon intake, and are not being offered the types of services or programs that meet their unique needs.... Screening to identify those at risk for an FASD is necessary and has been demonstrated as feasible in a correctional context.

Four years later, Corrections Canada still does not routinely screen for FAS disorder among newly admitted, federally sentenced offenders. This is a vulnerable population with significant mental health and behavioural needs. More recent CSC research confirms that those with FASD exhibit deficits that impact their ability to adjust to an institutional setting. As such, they are more likely to be involved in institutional incidents, both as instigators and as victims, and to incur institutional charges. They complete their correctional programs at much lower rates and they typically spend more of their sentence incarcerated before their first release. Offenders with FASD are more likely to be returned to the community on statutory release.

The unfortunate reality is that most FASD-affected offenders come into prison undiagnosed and untreated, and they remain that way. There is very little programming for affected adults in the community and there are no correctional programs specifically for offenders with FASD. CSC can and does adapt interventions to accommodate needs. There is evidence to suggest that individuals with FASD can benefit from programs that are structured, highly repetitive, and that use multiple delivery modalities.

I will conclude my remarks with a cautionary note. Bill C-583 contemplates an amendment to the Criminal Code that would require the courts to consider as a mitigating factor in sentencing a determination that the accused suffers from FASD. It is a proposed change to sentencing principles that is similar in intent to paragraph 718.2(e) of the Criminal Code, which was enacted in 1996 and which expresses the need for judges to consider all other sentencing alternatives before sending an offender to prison, with particular consideration for the circumstances of aboriginal people. The seminal Supreme Court of Canada decision in R. v. Gladue, 1999, interpreted this provision as a remedial measure aimed at combatting the overrepresentation of aboriginal peoples in Canadian prisons. Though the intent of paragraph 718.2(e) was to show restraint in the use of incarceration, the outcome of this measure has not lived up to the optimism about it.

When the Criminal Code was amended in 1996, aboriginal people represented 15% of the total offender population. Today, almost 25% of the federal inmate population is of aboriginal ancestry. These trends are accelerating. In fact, the incarcerated aboriginal population has increased by more than 50% in the last 10 years. If there has been judicial restraint, it has not translated into an actual decrease in the number of aboriginal people being sent to Canadian jails and prisons.

A correctional system that relies on obeying orders and rules that incentivize appropriate conduct and requires an offender to demonstrate behavioural progress is not particularly accommodating to persons afflicted with FASD. Similarly, a parole and pardon system that is predicated on the need and capacity to express remorse and learn from past mistakes is also not well-suited to FASD-affected persons.

I have suggested that the challenges faced by FASD-disordered individuals are largely at odds with the purposes of sentencing and incarceration. It is one thing to shed light on the causal factors that may have brought an FASD-afflicted person before the courts. It is quite another to have in place upstream diversion and treatment programs, services and supports in the community that could provide the courts with an appropriate disposition other than incarceration. Sentencing is a back-end measure. There is a need for screening and diagnostic services to be made available to FASD-afflicted persons at first contact with the criminal justice system. Prevention and diversion should be front-end considerations. By the time a case makes it to sentencing, options other than incarceration have become considerably restricted.

Notwithstanding these concerns, it may well be time to consider broadening the definition of mitigating factors at sentencing to include all forms of mental illness and disability, not just FASD. Such consideration, while late, would certainly be better than never.

Thank you very much for your attention. I look forward to your questions.

3:40 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you for that presentation.

We are going to questions now. Our first questioner is Madam Boivin from the New Democratic Party.

3:40 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

Thank you, Mr. Chair.

Thank you, Mr. Sapers.

That was extremely interesting, albeit a little discouraging too. You reviewed the implications of the Gladue case very well. The reality does not seem to correspond to what was anticipated at the time. We are now studying Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder). We are just studying it in broad terms.

You are aware of the recommendations that the Canadian Bar Association has made, starting in 2010, about fetal alcohol spectrum disorder (FASD). The association came back to the issue in 2013 with five very specific recommendations dealing with what correctional services must do. You say that definition perhaps should be broader, and I understand that, but we have to start somewhere because the situation just seems to be becoming more tragic.

Before you made your presentation, you were surely aware of the bill Mr. Leef has introduced, Bill C-583.

Do you think that the bill could help to improve the situation?

March 23rd, 2015 / 3:45 p.m.

Dr. Ivan Zinger Executive Director and General Counsel, Office of the Correctional Investigator

I think that our office's position is simply expressed by noting that we are a little concerned by the situation. I have to say that an amendment of that kind may well fail to produce the desired results and I compare that with the previous provisions for Aboriginal people, which did not produce the desired results either—

3:45 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

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

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

3:45 p.m.

Executive Director and General Counsel, Office of the Correctional Investigator

Dr. Ivan Zinger

We certainly do not wish to dismiss everything out of hand and pretend that nothing in it is going to work. We just want to tell you that we must not see it as the only solution. The problem is that, in it, we are trying to intervene at the end of the process, at sentencing. All kinds of things could be done beforehand. We are actually just trying to point out that, if we worked more proactively, we would not be in the situation we now find ourselves in.

3:45 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

I understand that.

3:45 p.m.

Executive Director and General Counsel, Office of the Correctional Investigator

Dr. Ivan Zinger

We cannot ask correctional services to try to solve a problem that should have been settled in the community, with more adequate screening services.

3:45 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

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

Is that not a new way of working proactively?

3:45 p.m.

Executive Director and General Counsel, Office of the Correctional Investigator

Dr. Ivan Zinger

As Mr. Sapers clearly said, there is some value in it and it could even be expanded to include mental health problems or cognitive deficits. There are a lot of them. For example, a study by Correctional Service Canada suggests that 45% of federally sentenced offenders have neurological conditions.

So this is a little late; the process is well advanced. Clearly, it will make a small difference. However, if we compare that with what happened with the treatment of the Aboriginal people, it perhaps slowed the process down, but it certainly did not succeed in reaching the ultimate goal of reducing their incarceration rate, which is much higher that one might expect when compared to the general population.

3:50 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

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

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

3:50 p.m.

Executive Director and General Counsel, Office of the Correctional Investigator

Dr. Ivan Zinger

You are right.

However, we have to consider what happens prior to that, before the person is faced with the correctional services. Of course, they could do a lot better and provide many more services to a population with fetal alcohol syndrome disorders.

But, as I have already told you, it is really late, the process is already well advanced.

3:50 p.m.

NDP

Françoise Boivin NDP Gatineau, QC

So you would like to become involved before a crime is committed. However, that is not a matter for this committee because we are discussing offences and the Criminal Code. Nevertheless, I understand your point of view. You would like offenders not to get to the point of committing an offence that causes the justice system to become responsible for them.

3:50 p.m.

Executive Director and General Counsel, Office of the Correctional Investigator

Dr. Ivan Zinger

Yes, or that much more should be done to try to steer them into a system other than the criminal justice system.

3:50 p.m.

Conservative

The Chair Conservative Mike Wallace

Thank you for those questions and answers.

Our next questioner, from the Conservative Party, is Monsieur Goguen.

3:50 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

Thank you, Mr. Chair.

Thank you to the witnesses for coming and giving us their testimony today.

Mr. Sapers, I heard you say that there is no particular program in the federal system for people who are identified with FASD. That's what I understood.

I suspect that some offenders, before going into the federal system, would go through the provincial system of justice and incarceration. Are there any provinces that have any programs? Is there anything out there?

3:50 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

Thank you for your question.

I'm not familiar with the range of programs offered by all of the provinces and territories. I do know, though, that their system has some of the same challenges that the federal system has, and that is in utilizing screening tools that are appropriate for a correctional environment. That's why about four years ago, the Correctional Service of Canada conducted the pilot project to see whether a simple checklist approach could work to help identify the at-risk population. There are community-based initiatives for dealing with fetal alcohol spectrum-disordered individuals, but there are very few tailored correctional interventions.

The Correctional Service of Canada has actually put together a very good guide for staff, to provide them with advice and tips on how to deal with an FAS-affected individual. As I say, there has been some tailoring of more general programs. These are changes in the way the program is delivered so the programs are more easily integrated by the FASD individual. But there is not a “built from the bottom up” comprehensive array of interventions that have been designed for corrections and for people with FAS disorder.

3:50 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

Beyond some sort of program with some tips, is there any kind of formal training for corrections officers, police officers, judges, prosecutors, ambulance attendants?

3:50 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

I wish I had a more comprehensive knowledge. I don't know what happens for ambulance attendants or police officers, but I can tell you that in corrections there is general training in terms of mental health issues. The Correctional Service of Canada is doing a better job of delivering that training. Again, there are materials that are available as resources to staff, but there is not comprehensive or intensive training in terms of dealing with this population.

3:50 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

There's no curriculum on mental health, whether it be FASD or—

3:50 p.m.

Correctional Investigator, Office of the Correctional Investigator

Howard Sapers

There is a curriculum on mental health. As I said, the Correctional Service of Canada has developed better training and is delivering that training increasingly, both in the initial training and also in refresher training, classroom-based and online, but it's about mental health and mental wellness more generally, not specifically about FASD.

3:55 p.m.

Conservative

Robert Goguen Conservative Moncton—Riverview—Dieppe, NB

I wasn't trying to throw you for a loop with the ambulance attendants. It's just that there are so many people out there who are afflicted with this, and there are so many occasions for different participants in society to interact with them. Knowing how to deal with the symptoms would definitely come as a benefit to most, right?