Justice Committee on March 23rd, 2015

[Françoise Boivin, NDP, Gatineau, QC]

I listened very hard to the explanations.

I loved your passion, Dr. Cook. I love people who are passionate. I'm passionate about law. You're passionate about mental disorders. I seem to understand that there are so many things that science realizes and learns about every day. I keep hearing the definition of FASD, and I know there are people who say that it doesn't fit the criteria of section 16 of the Criminal Code, but section 16 of the Criminal Code talks about somebody not being responsible because of “a mental disorder”.

I would like the three scientific people who are here today to enlighten us. Why would it not be a possibility that somebody is not guilty because of FASD? Is it possible that there might be cases? I seem to understand from the testimony of the three of you that not everybody is the same, that FASD doesn't have the same impact on everybody. We just heard from Mr. Sapers, l'enquêteur correctionnel, who seemed to say that it's not advancing anywhere, that nobody seems to be even talking about it in courts so our jails are full of people with it.

What can we do? Why isn't it subject to section 16 of the Criminal Code?

[The Chair, Conservative, Mike Wallace]

We'll start with Ms. Cook.

[Dr. Jocelynn Cook]

Let me start by saying that internationally FASD is starting to be recognized within the context of law. We know that there have been meetings. There's a big FASD and mental health meeting that happens in Vienna in the summer, and they are having a huge focus on FASD this year. It's starting to get some international traction in terms of that.

As a clinician, Dr. Andrew can answer this much better than I can, but we know that individuals with FASD differ in their neurodevelopmental deficits for a lot of reasons. We know, as Dr. Andrew suggested, that some of the traditional measures of whether you understand or not may not be relevant here, because the patterns of where the brain has issues are different from those of other neurodevelopmental disorders.

We're trying to figure out how different, and we're trying to look at other individuals who have neurodevelopmental disorders. How are they different and the same as individuals with FASD? How are their brains similar and different? Are there patterns that are similar and different? This is so we can understand some of the more specific effects of alcohol. We know—

[Françoise Boivin, NDP, Gatineau, QC]

But I heard Dr. Andrew say that sometimes they have a hard time understanding the consequences.

[Dr. Jocelynn Cook]

Right. That's a traditional—

[Françoise Boivin, NDP, Gatineau, QC]

Isn't that the definition of a mental disorder, based on section 16? My point is that we want to make this a mitigating circumstance on sentencing, but are we not missing the whole situation on the actual commission of the infraction?

[Dr. Jocelynn Cook]

Gail, do you want to answer that?

She has her hand up.

[Dr. Gail Andrew]

I have to preface this by saying I am a medical doctor and not a lawyer. I actually had an opportunity to speak with Professor Steven Penney, a professor at the faculty of law, University of Alberta, to give me the Reader's Digest condensed versions of section 16. Certainly our individuals with FASD would qualify for mental disorder.

The diagnostic process I very quickly outlined is a rigorous process. We look for three different areas of brain impairment. It's not just a little; there is significant impairment. We actually do a numerical ranking system where three is the highest level of impairment. There is a scientific rigour to how we approach the diagnosis with FASD.

My discussion with Professor Penney was that, yes, we have a mental disorder, but are our individuals incapable of appreciating the nature of the act or omission, or knowing it was wrong? We know we must show the impairment to know the natural consequences of the act, and to know that it was wrong either legally or morally. When I look at the impairments in brain function that I can assess every day in clinic, most of the individuals who get diagnosed with FASD would qualify for that level of impairment, but they do need the in-depth assessment.

[The Chair, Conservative, Mike Wallace]

Professor, would you like to answer that question?

[Dr. Svetlana Popova, Assistant Professor, University of Toronto, and Senior Scientist, Social and Epidemiological Research, Centre for Addiction and Mental Health]

Hello, everyone. I just wanted to add to the medical and epidemiological evidence that I presented two weeks ago.

I want to remind you that 90% of people with FASD suffer from conduct behavioural problems and disruptive behavioural impulsivity; 80% have receptive and expressive language deficit; and 70% have developmental and cognitive disorders and developmental delays. Therefore, people with FASD should definitely be treated differently in the legal system as patients with cognitive, intellectual, and functional impairment.

FASD needs to be defined under the Criminal Code. Procedures should be established for assessing the range and severity of FASD so that its role in an offence can be taken into account in sentencing as a mitigating factor. Presumably that would allow offenders to be steered toward the support they might need, rather than just incarcerated.

[Françoise Boivin, NDP, Gatineau, QC]

I get your point, Professor Popova, but my question was whether or not it could have an impact on the actual commission of the infraction. Is it a mental disorder that would make the person not guilty because of reason of a mental disorder?

[The Chair, Conservative, Mike Wallace]

Okay, you can think about that answer because her time is up. We may get back to that question again.

The next questioner is from the Conservative Party. Mr. Seeback is up first.

[Kyle Seeback, Conservative, Brampton West, ON]

Thank you, Mr. Chair.

I'm going to pose this initial question. I've heard a number of discussions on how an FASD diagnosis takes place. I don't have my witness list here, but I heard someone mention 10 different brain “blank” for diagnosis. I don't know if that was 10 different brain tests at $4,000, or....

How detailed does the testing have to be? How long does it take in order for this assessment to be made for an individual?

[The Chair, Conservative, Mike Wallace]

That was Dr. Andrew.

[Kyle Seeback, Conservative, Brampton West, ON]

It was Dr. Andrew? Okay.

[Dr. Gail Andrew]

Yes. Dr. Cook can also join in, as Dr. Cook is one of the leaders in the development of the revision of the Canadian guidelines for FASD assessment, although the guidelines are being developed with extensive consultation with experts across Canada, the United States, and internationally.

The 10 domains are different categories of function within the brain that we separate out. I mentioned just a few in my presentation. There is intelligence, academic achievement, attention span, memory, executive functions, adaptability, and mental health. As a physician, I also look at the motor system, neurological control, etc.

[Kyle Seeback, Conservative, Brampton West, ON]

So it's a very detailed test.

I have limited time here, so in general terms, how long would it take for someone to be assessed? Is it one meeting? Is it weeks, months, days?

[Dr. Gail Andrew]

In my clinic we see the individual over about a day and a half, and then the diagnosis is formulated in the other half-day and a full report is generated. It's two days for an adolescent or a child.

The adult has different challenges, because if they are homeless, we have to find them, feed them, give them a mentor. I run an adult clinic, so this is our process. We connect them with a support person who is able to navigate the system with them, because if you have an FASD, you aren't able to navigate the system even to get your foot in the door. I've done some work in the justice system. I must admit, we have a captive population. We can do the diagnosis quite quickly in the justice system.

[Kyle Seeback, Conservative, Brampton West, ON]

Professor Cook, do you agree? Are you on the same page with that?

[Dr. Jocelynn Cook]

Yes, and I have one quick thing to add. As Dr. Andrew suggested, 10 parts of brain function are assessed. You have to get three hits to meet the criteria, but our new data show that more than 50% of individuals have nine hits. That's really impaired, much more than we initially thought, to go back to your question.

[Kyle Seeback, Conservative, Brampton West, ON]

The cost of the test is around $4,000.

[Dr. Jocelynn Cook]

Yes. Sometimes it's $3,000, sometimes $4,000. It depends on whether you have to hunt down bio-mom, or find the data, whether you need a cultural interpreter. There are different kinds of teams for different—

[Kyle Seeback, Conservative, Brampton West, ON]

If a court doesn't order the assessment, which would be paid by the province, then the individual person who is trying to assert the FASD would have to find the way to pay for that personally, I take it.

I'm going to share the rest of my time with Mr. Calkins.

[The Chair, Conservative, Mike Wallace]

Mr. Calkins, the floor is yours.

[Blaine Calkins, Conservative, Wetaskiwin, AB]

Thank you, Mr. Chair.

My first question is a joint question to both Gail and Jocelynn.

First of all, I think, Gail, you said that a capacity for diagnosis is lacking. I wrote that note down. If you could, elaborate on that for me. Is this because we don't have enough medical expertise, because we don't have enough technical expertise, because we don't have enough financial resources...? Can you tell me why that capacity for diagnosis is lacking?

Jocelynn, my question for you relates to the “what do we need” part—the second bullet there, on standardized data collection. Do we know enough about all of the aspects? It sounds to me as though we're still in a very dynamic state concerning learning about the full suite of what fetal alcohol spectrum disorder is, and so on. Do we know enough yet to create a standardized list? If we don't get the standards right now, that sets the benchmark for the future, and it is much harder to change, if we don't get it right the first time.