Mr. Speaker, I am pleased to participate in the second reading debate with respect to Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).
I welcome the opportunity to listen to the debate and engage in the discussion on the implications that fetal alcohol spectrum disorder, FASD, has on the criminal justice system.
I would like to begin by thanking the member for Yukon for bringing this very important but complex issue forward to attention of the House of Commons. The impact of FASD is a significant issue in his jurisdiction, as it is elsewhere in Canada. I would like to commend him on his leadership in attempting to address the complex issue of FASD and the criminal justice system.
FASD is an umbrella term used to describe permanent brain damage caused by prenatal exposure to alcohol. Although alcohol is not the only substance that can have an impact on a developing fetus, alcohol is the only substance that appears to affect both the physical structure of the brain and the brain's function.
As is the case with many other forms of mental disability, the vast majority of people who live with FASD do not demonstrate any physical characteristics. For this reason, FASD is often referred to an as invisible disability.
Many individuals with FASD suffer from cognitive impairments, such as impaired judgment, poor memory, and impulsiveness. They may also have difficulty linking events with their consequences, which makes it difficult for them to learn from their mistakes.
These impairments are sometimes referred to as primary characteristics of FASD, as they are the characteristics with which a child is born. They are associated with the structural and functional changes in the brain.
Individuals with FASD can also develop what are referred to as secondary characteristics. These refer to the disabilities that may develop as a result of a failure to appropriately and adequately address the primary characteristics. They are more behavioural in nature, and can include mental health concerns, employment problems, disrupted school experience, addiction issues, and trouble with the law.
The brain abnormalities associated with FASD are different for every person with this disability. There can be a significant disparity in the level of impairment among young persons diagnosed with FASD.
Owing to both the primary and secondary characteristics of FASD, individuals with FASD may be at an increased risk of coming into contact with the criminal justice system. Unfortunately, there is scant research on the exact prevalence of FASD in the criminal justice system.
Owing to the presence of individuals with FASD in the criminal justice system and the particular challenges that arise from their involvement in the system, there have been many calls for changes to legislation to specifically address the issue of FASD.
An FASD prevalence study is currently under way in Yukon to evaluate the prevalence of FASD in adult individuals who are incarcerated or on probation in Yukon. This could help to better understand this very complex problem.
The Yukon study will contribute to the understanding of how many people in the corrections system face challenges linked to FASD, mental health disorders, and substance abuse problems. I understand that the Department of Justice Canada has contributed to the development of this study. I look forward to learning about the results in 2016. I think it will provide a valuable contribution to the way forward on this challenging issue.
The Government of Canada has been actively engaged in many programs promoting access to justice for marginalized individuals for many years, including those with FASD. One example I would like to draw to members' attention is the aboriginal justice strategy. This is a federally led program that is cost-shared with the provinces and territories. It has operated since 1991 to support innovative community-based justice programs that help to address the overrepresentation of aboriginal people in the justice system.
The aboriginal justice strategy provides cost-effective alternatives to mainstream justice processing by ensuring accountability for low-level, non-violent offences according to the same principles used in non-aboriginal cases. The strategy provides funding to approximately 275 community-based justice programs that reach over 800 aboriginal communities in all jurisdictions. Many programs provide services specifically related to FASD, and all 275 programs indicate that those exhibiting FASD characteristics are among the clientele using their services.
In addition to the aboriginal justice strategy, the government also funds the aboriginal courtwork program, which works to ensure that aboriginal people in contact with the criminal justice system, whether as accused persons, witnesses, victims, or family members, have fair access to equitable and culturally sensitive treatment throughout the court process.
Each year, over 52,000 aboriginal Canadians in over 435 communities benefit from the access to aboriginal court work services. These services increase the efficiency of the court system, especially in remote communities, and promote outcomes that support healthy, safe families and communities.
By highlighting these programs and projects, I do not wish to give the impression that FASD is an issue that only affects aboriginal Canadians. However, anecdotal evidence indicates that rates of FASD are higher in aboriginal communities for a variety of historical, cultural and other reasons. Therefore, much of the government's response to date on this issue has focused on aboriginal people, but there is wide recognition that FASD has a broader impact.
This broad impact is recognized by Bill C-583, which would apply to all individuals with FASD. The bill proposes to amend the Criminal Code to do three things: it would define FASD in the Criminal Code; it would empower the courts to order FASD assessments for the purpose of bail and sentencing; and it would deem FASD to be a mitigating factor on sentencing if certain conditions were met.
I am sure all members can agree with the general intent of this bill. The goal of providing special treatment to individuals who suffer from a particular type of permanent brain damage, which may impact their level of criminal responsibility, is commendable.
When I read the bill, however, I found it raised a number of important questions that ought to be considered. For example, some people will ask why there is a need to address only FASD and not any other mental disability or mental disorder. Is FASD the only disability that has an impact on an individual's degree of responsibility for the purposes of the criminal law?
I also wonder whether the provinces and territories currently have the capacity to undertake assessments that would be ordered as a result of this bill. The bill would require medical assessments by various experts in the justice system.
Finally, given that courts can already take evidence of FASD into account for the purpose of sentencing but are not obliged to consider it for every case, we must fully analyze the impact of explicitly adding this to the Criminal Code.
In closing, while we support the intention of the bill to find alternative ways to address FASD in the criminal justice system, I believe we need to review and reassess the available options. I believe a study of the subject matter by the appropriate committee could be beneficial to all.
Again, I would like to recognize the efforts of the member for Yukon for raising this important and challenging issue, and I look forward to hearing from other members on the potential impacts of this bill.
That the motion be amended by deleting all the words after the word “That” and substituting the following: “Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be not now read a second time, but that the order for second reading be discharged, the bill be withdrawn, and the subject-matter thereof be referred to the Standing Committee on Justice and Human Rights and that the committee report back to the House within four months of the adoption of this order”.