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.