Justice Committee on March 25th, 2015

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

Thank you.

Wenda.

[Wenda Bradley]

I think we need to be supplying more frequent support and care for folks. They get into the justice system, and anything they have to go through is not well understood by them or followed. With the work we're doing here—we do a lot of work, because the intensity of justice is quite high for us.... So it's frequency of contact—and this takes lots of people—and contact of shorter duration, because our folks have memory problems. They have problems directing their own thinking, so they need somebody to bounce stuff off. That go-to person will then be the person, if they're available.... That is what we do in our agency. We have a lot of ability to flex; they can come to us quickly and easily.

[The Chair, Conservative, Mike Wallace]

Thank you for those questions and answers, Mr. Wilks.

Our next questioner, from the New Democratic Party, is Madame Péclet.

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

Thank you very much, Mr. Chair. I also thank the witnesses for being here with us today.

My first question is for Chief Alexis.

It was interesting to hear what you had to say about the discretionary power of judges. You are not the first person before the committee to have said that mandatory minimum sentences undermine judges' discretionary power to personalize the sentence.

Howard Sapers, the Correctional Investigator of Canada, said that that there was a contradiction in the Criminal Code. There is a requirement that all of the circumstances be taken into account in sentencing. However, at the same time, minimum mandatory sentences are imposed.

The Canadian Bar Association proposed an amendment to Bill C-583 that would introduce an exemption in section 718 of the Criminal Code to give the courts the discretionary power to set aside the mandatory minimum sentence when it would cause an injustice.

My colleague asked you a question on that, but you did not have time to reply to it. Do you think that principle should have precedence over mandatory minimum sentences in regard to certain problems such as fetal alcohol spectrum disorder, mental troubles, or consideration of the Gladue principle?

[Chief Cameron Alexis]

Thank you very much for the question.

Yes, I do agree. The position of AFN is that it has to be considered. I don't think corrections is the answer. As a matter of fact, corrections should treat this as a disability. I think the judges should have discretion on whether to send these people diagnosed with FASD into sentencing circles or restorative justice programs where they can repeat messaging if they have to. Putting our people, meaning the first nations people, aboriginal people, into more of a corrections mode, is not the answer.

I hope I answered your question, Ma'am.

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

Thank you very much. I mean, it was a simple answer, yes or no.

My second question will go to Mrs. Pei.

In your presentation, you laid out a certain model that you would make a priority, which is to assess risk and gravity and match treatments to reduce recidivism rates. We're dealing with a bill right now, so it's like the object of a bill.

I do understand that we want more data collection, more research, and I totally agree. We had a report of the health committee in 2006 that said exactly that.

Where do you see the justice system in this whole risk assessment? It might be a question for Mrs. Bradley and Mrs. Ross to answer. Where do you see the experts and the diagnosis in the whole justice system? How do we complement both the outside and the external help, and financing and research?

Mrs. Ross talked about law enforcement in the justice system coming together for best practices.

Where do you see all of that coming into force? I know that Mr. Sapers talked about...and I'm going to say it in French

In connection with mental troubles, he was referring to the courts.

We have special courts for youth. We have special courts for conjugal violence. Where do you see all of that coming together?

Thank you very much.

[The Chair, Conservative, Mike Wallace]

Professor Pei, you have the floor.

[Dr. Jacqueline Pei]

The risk-need-responsivity model is designed to fit in at the point at which the individual interacts with the justice system, so after arrest. That's where the model fits, the idea being that, currently, it's not uncommon for a court to ask for a risk assessment, to say that they want this to go out to a professional to assess what the risk is of this individual reoffending.

The focus of that risk assessment typically is on our usual risk indicators, things like your peer group, your family structure, environmental supports, your history of criminal behaviour, your use of drugs and alcohol, and a number of environmental variables. What is not examined, typically, in a risk assessment is cognitive functioning, such as what is the brain doing, is there a disability, and is there a unique disability?

As you've heard others say—and I believe Ms. Ross said this when she spoke—you may be dealing with an individual where even if they do stop to ask, “What is the intelligence level?”, that does not tell us very much about this population. Intelligence, as measured by our standard IQ tests, is not predictive of function in any way with the FASD population. The nature of the brain injury is such that function is impaired significantly despite the IQ level. That piece of information is absent in a traditional risk assessment.

When the courts don't extend that assessment to say that they need a further assessment or that they need to bring in an additional specialist who can take a look at some of those brain-based pieces, we're then making decisions around this individual's needs. We're also making decisions with regard to what kind of treatment or response is required or appropriate from the system without the knowledge of their unique brain functioning, which could be a contributing factor to what's going on and really can help us to better match the way we respond, both in terms of sentencing, and those intervention and treatment initiatives.

If we know that an individual has substantial brain injury that impairs their ability to function effectively, then we are needing to look at community-based intervention strategies, which you've heard Chief Alexis speak about.

[The Chair, Conservative, Mike Wallace]

Ms. Bradley, would you like to respond?

[Wenda Bradley]

I totally agree with what was just said.

As an example, for our work, we do help folks do what the courts are asking and a lot of it is community work hours to help some of the different needs they have. But we jokingly say at our agency that if we all get in trouble, we've done our community time because the persons we're working with don't and can't organize what they need to do for community time. They can't keep the appointment they have to go to. Sometimes they can't even understand what needs to be done.

One of the situations we're working with now is that they need to shred paper. We're having to teach them all of these things. We're not sure that shredding paper, as community work, is teaching them anything about what they did wrong.

In fact, we would prefer to see restorative justice. Let's work with them and show them what they did wrong. Let's help them make some amends to help them fix that a bit because the two aren't related for the person at all.

Again, our staff are well punished, but the person isn't getting the message that we need to be giving them.

[The Chair, Conservative, Mike Wallace]

Our next questioner from the Conservative Party is Mr. Leef.

[Ryan Leef, Conservative, Yukon, YT]

Thank you, Mr. Chair, and thank you to my colleagues for sharing their time with me. Thank you to all the witnesses for being here today.

The panel we have today is a great example of the diverse people this committee needs to hear from with respect to a very complex and dynamic issue in our country.

While it was my introduction of the bill and the justice system, specifically, that has brought us here, I'm going to ask some questions related to the front end of this, because it certainly serves the justice system well and serves Canadians well for that system to aim to support prevention activities at the earliest onset. Of course, the earliest onset is prevention, period.

Ms. Ross, thank you very much for your personal testimony and what are very succinct and clear recommendations for the committee.

I do want to turn quickly to Ms. Bradley, a fellow Yukoner, and ask where we're at present day, if you know or if you can share, in the context of the prevalence study that's under way with the Whitehorse Correctional Centre?

[Wenda Bradley]

I am not really in the know regarding that, except I know that it is still ongoing. It has been extended so it can be finished, but I think Dr. Pei probably has a little bit more information about what the results are, if she wants to respond to your question.

[Ryan Leef, Conservative, Yukon, YT]

Great. Thank you.

[The Chair, Conservative, Mike Wallace]

Dr. Pei.

[Dr. Jacqueline Pei]

I think you answered well. You're right. The study has been extended and so the participants are continuing to gather information.

Essentially, being a prevalence study means that adults who are involved in the justice system in Whitehorse or the Whitehorse region have agreed to participate and are having a full neuropsychological assessment done within an FASD diagnostic context or team. Some of those individuals are then receiving a diagnosis of FASD, and some are not.

They can refer them based on anything, so prenatal alcohol exposure or any risk factors aren't needed. The idea is that we really want to get an idea of who is in the system and how many of them have FASD, which is a question that's arisen from some of the other members today.

We don't yet know what those numbers will look like because we're still conducting the study and the data is being collected. We hope once that data is collected we'll not only have an idea what the numbers are in terms of the number of individuals with FASD—the cultural issues, our representations of what we're seeing—but also in terms of characteristics of the brain that have contributed to justice system involvement.

[Ryan Leef, Conservative, Yukon, YT]

Thank you for that.

As Ms. Ross indicated from the Vancouver conference we were both at, because we don't know the numbers, I suspect we're probably projecting them to be a bit higher than we anticipate .

The ultimate issue, then, is going to be—and I guess I'm posing it broadly to everybody here, if you could touch on a complex question quickly—that we have to seize ourselves with the role that Canada plays. That's why we're all here. Of course, there are provincial responsibilities, provincial jurisdictions. Some of those really do deal with the earliest onset issues—prevention, health, education—and, of course, “Jacob's Story” talked about our having all of our children captured in one location in the education institution, but those are provincial and territorial responsibilities.

What do you advise this committee recommend to the federal government as the role it can play respecting some of the complexities and jurisdictional issues around those social support networks, education, and health fronts that do belong in the provinces' hands? How can Canada lead that discussion, or at least what recommendations can you make so that we can step forward on this file so we don't lose the ground we've gained here?

[The Chair, Conservative, Mike Wallace]

I'm going to start with Ms. Bradley to answer that.

[Wenda Bradley]

Well, I think Canada can lead the way in recognizing the need and showing people that we have a responsibility to persons who are maybe not able to help themselves and not at fault for what their situation is.

This is an organic brain disability. It's not something that has happened to them that they can control, and we must recognize that these folks need that support from the outside community.

[The Chair, Conservative, Mike Wallace]

Professor Pei.

[Dr. Jacqueline Pei]

Thank you very much for what, I think, is a really important question.

I would like to say that I really think Canada is already one of the leaders in this field, but that there's still a tremendous amount of work to do. We are being looked to, and I think that's a double-edged sword. To say we are a bit of the leaders, it means that we are on the public stage and people are looking to see how we respond. I think that puts more of an onus on us to respond appropriately.

I would like to see national leadership—I think Ms. Ross spoke to the idea—and I would like to see stronger national leadership so we can reduce some of the provincial and territorial disparity in how services are delivered and support networks are put together.

We see some lovely models within individual provinces for how we can make some really effective networks work at a provincial level.

We need to move to a national level. The FASD Research Network is attempting to support that national perspective from a research place. In response to something Ms. Ross said, we do now have a universal central data holder, so we are starting to combine data from all over the country. We are starting to move with that. We need those same initiatives to operate at a public health level so that integration of information is happening with a national directive, not just provincial.

[The Chair, Conservative, Mike Wallace]

Okay.

Chief, the floors is yours to answer the question.

[Chief Cameron Alexis]

Thank you very much.

So the floor is mine, I can speak for another 45 minutes? Just kidding.

Very seriously, I want to express my thanks to every one of you because this is very important for us as first nations people, because of the sixties scoop and the residential schools, etc. Very simply, I'm here because I want to support the amendments in the bill, through the AFN. We need to treat FASD people. The judges need to factor in their discretion on this. Corrections should be the last answer to all of this. Finally, there should be reintegration programs for our people within this medical disorder.

Thank you.

[The Chair, Conservative, Mike Wallace]

Thanks.

Ms. Ross, the floor is yours.

[Elspeth Ross]

I agree with Dr. Pei that Canada is already considered a leader. The world is watching us.

I think that some lead from the federal government is important. The Public Health Agency of Canada does not seem to be powerful enough in doing its coordinating and collaborative role within the government. I think their role as a leader could be strengthened, so there are consistent and sustained projects. We have small projects in a very disjointed way all over the place, little projects where the money runs out in two years, or leftover money. If we pull together in Canada, it could be just absolutely great.

The Canada FASD Research Network could somehow be assisted to bring Ontario and the maritime provinces into their network. They aren't at the moment. It's called CanFASD, but it's not CanFASD. If the government could assist their research role, but they have lots of other tentacles that could be worked out.

There were various examples in the past where there was funding from the national strategic fund, which used to exist, but I don't think exists anymore. There's something called Let's Talk FASD. I gave a copy of it to your clerk for your research people. It consists of parent-driven strategies, which are still valid even though the study was done years ago. But various things could be funded so that Canada pulls together, instead of just being a member of the world in FASD, which is very important, but I think the time is now for us to move together on this. Justice is off on its own, but needs to be brought in, Health and Justice together, and also Public Safety. So those three key things should be pulled together somehow.