Mr. Speaker, the opportunity I have to discuss the consideration of fetal alcohol spectrum disorder within the criminal justice system will allow me to describe the impact of this syndrome on the daily lives of many Manicouagan residents.
FASD affects approximately 1% of Canada’s population. Research shows that the incidence of FASB is significantly higher among aboriginal people and in rural, remote and northern communities.
Whenever I tour the riding, I travel to some places that are on the 52nd parallel and even a little further north. I think my riding goes up to the 54th parallel. In any case, I travel to very remote communities. Unlike some of my colleagues on the other side of the House and in other parties, rather than visiting social clubs, social groups or chambers of commerce first, I visit educational institutions and primary schools, first and foremost.
I talk to the staff, and when I visit remote communities, especially aboriginal communities, I always ask about the incidence of fetal alcohol syndrome. It is quite well documented that this syndrome occurs very frequently in the aboriginal population and in remote areas. The statistics I gave you just now, Mr. Speaker, are clear evidence of this.
A few months ago now, when I went to Pakuashipi, I had a discussion with one of the social workers, and I think in fact I even discussed the issue with the school principal. I asked him about identifying and monitoring young people with fetal alcohol syndrome or behavioural issues linked to fetal alcohol syndrome.
I was told that it was quite difficult to make a diagnosis in remote areas. This is why children must often move to Montreal or Quebec City, where they are better equipped. There are experts in development and education who are able to make a diagnosis and detect early signs of the syndrome.
I was told that while the teaching staff in remote communities are qualified to identify signs of fetal alcohol syndrome, before a diagnosis can be made, the student must have reached quite an advanced stage of development and education. In most cases, the case must be referred to a specialist in an urban area, such as Quebec City or Montreal.
However, the instrument before us today addresses the situation as experienced by adults who must deal with the criminal justice system. These are adults over the age of 18, of course, who have not necessarily ever been diagnosed. This is the point on which my argument is based: they were not diagnosed at an early age.
Technological advances have helped in detecting signs of fetal alcohol spectrum disorder. This was also brought to my attention. Until recently, detection was rather complicated. That is why in 2014, young people are being more closely monitored than adults or young people were in the 1970s. That is why in 2014, the criminal justice system sometimes has to deal with adults who simply do not have any diagnosis on file. There may be some mention here and there in a medical file. Nonetheless, generally speaking, the 1% of the population that has fetal alcohol spectrum disorder is highly represented in criminal cases, at 60% or 80%. The numbers elude me, but these people make up a high percentage of the prison population and of those brought before the criminal justice system.
That is the reasoning I will present during my arguments, namely to take into account this characteristic, as well as the diagnosis at an advanced age in criminal cases. These elements were included in my motion and in the instrument being brought to our attention today.
The instrument submitted to us for consideration seeks to establish a procedure for assessing individuals who are involved in the criminal justice system and who, it is suspected, suffer from fetal alcohol spectrum disorder. As I indicated, here we are talking about undiagnosed adults.
I want to make sure it is understood that I am making the case that the instrument before us is first and foremost about sentencing submissions. At the risk of repeating myself, I am aware that the vast majority of Canadians do not have in-depth knowledge of the justice system. That is why I want to talk about sentencing submissions.
When an individual has moved through criminal proceedings and is convicted of the offence in question, his lawyer and the crown prosecutor are to meet at a subsequent stage. It is usually when the guilty verdict is handed down to the individual that sentencing submissions are set for a later date. This always depends on the severity of the crime committed. However, with respect to fetal alcohol spectrum disorder, my understanding is—and I do not think I am erring in law here—that submissions would take place at the sentencing submissions stage. Consequently, the lawyer of the individual who stands accused would submit that it is highly likely that his client has fetal alcohol spectrum disorder. The crown prosecutor would be allowed to present arguments and elements that would be taken into consideration by the judge.
Here is my conclusion: I think that this will be debated in committee. Those responsible, the justice critics, will have a field day. What I was saying was that there is a potential for backlogs, or at least hold ups and delays in the courts, particularly if experts have to weigh in on the likelihood that an adult has fetal alcohol spectrum disorder. I have been told that it is far more difficult to make an accurate diagnosis once a person reaches adulthood. For adults with possible behavioural problems related to fetal alcohol spectrum disorder, it is much more difficult to identify the impact and occurrences in everyday life. That could pose a problem.
For example, I handled mental health cases and criminal cases. I often submitted applications under subsection 672.11 of the Criminal Code. That is legal jargon. It is about criminal responsibility at the time of the action or criminal responsibility in cases of mental disorder. That is an additional factor. When lawyers submit applications under section 672.11, clients usually go to the Philippe Pinel Institute in Montreal where the experts do their expert thing, so to speak, for two to three weeks. Then they come back. In Sept-Îles, when my clients appeared in the judicial district of Mingan, there were undue delays lasting two or three weeks. Local expertise was not necessarily able to meet the needs.
Will a similar process be set in motion when there are sentencing submissions? That is what happens when these elements are brought forward. I do not know. That is my information, and it will have to be debated in committee by the people responsible for this file. This is not within the scope of the present discussion, but the process could get bogged down.
Prevention and intervention are key to improving the situation. Advances in screening methods used by pediatric health care and education professionals have made it possible to identify cases of fetal alcohol spectrum disorder in the early stages of child development. As I mentioned, it is preferable to do this at a very early age.
In closing, I would like to quote comments made at a justice conference held in the Yukon in 2008:
Given the stringent criteria associated with defences of “not criminally responsible on account of mental disorder” [subsection 672.11, as I mentioned] and “unfit to stand trial” [also subsection 672.11], which are defined in the Criminal Code, most individuals with FASD [fetal alcohol spectrum disorder] would not meet this threshold ... Instead, they are considered to be fully responsible individuals and the judge sometimes considers their disability to be a mitigating or aggravating factor.
I would like to emphasize the phrase “the judge sometimes considers”. At present, this is at the judge's discretion and is not codified. The remarks made at the Yukon conference in 2008 indicate that the judges already apply this principle and that it is already taken into account, more or less informally, because it is not codified.
Consequently, the instrument currently before us would simply formalize a practice already being implemented.
We have already seen this in the past and it is nothing new.
I submit this respectfully.