Mr. Speaker, it is a privilege to rise this evening to speak to Bill C-235, introduced by the hon. member for Yukon. l believe this is a very well-intentioned bill to deal with the incredibly complicated issues surrounding fetal alcohol spectrum disorder within the context of Canada's criminal justice system.
Fetal alcohol spectrum disorder, or FASD, is a non-clinical umbrella term to describe individuals who suffer permanent brain damage as a result of prenatal exposure to alcohol. FASD is not new, however. Over the last number of years there has been increased awareness about FASD and its effects.
There is no doubt that persons who suffer from FASD are more likely to be caught up in the criminal justice system. While it is unclear exactly what percentage of offenders within the criminal justice system has FASD, the fact is that because there is increased awareness about it, the issues of FASD are becoming relevant in more and more reported criminal cases throughout our courts.
Our criminal justice system is based upon a number of different assumptions. One of those assumptions is the presumption of voluntariness, that individuals act in an informed manner when they commit a crime. In that regard, it is only in very narrow circumstances that an individual may be exempt from the imposition of criminal liability in a mental health context.
Normally, in order for an individual to be exempt from criminal liability on the basis of mental health, the mental illness defence would need to be made out. In order for that defence to be made out, it would have to be established that the individuals suffered from a severe impairment that went to their ability to comprehend the wrongfulness of their actions or the harm that their actions brought about. It is again only in a very narrow set of circumstances, and indeed there are many instances involving FASD or other mental illnesses that would not meet the threshold for the mental illness defence to apply.
Given the increased prevalence of cases involving FASD, many of the assumptions that have long underlined the criminal law in Canada are being challenged every day, including principles of voluntariness and free will.
One of the most common areas in which the issue of FASD becomes an issue in criminal cases is at the sentencing stage. Bill C-235 seeks to amend the Criminal Code by establishing a presumption that FASD is a mitigating factor for the purpose of sentencing. The principles of sentencing are set out at sections 718-718.2 of the Criminal Code. The most important principle in sentencing is set out at subsection 718.1 of the Criminal Code, which provides that a just sentence is based on the degree of responsibility of the offender.
Whenever judges apply the principles of sentencing under the Criminal Code, including assessing the degree of responsibility of the offender, it is a very complicated task. It is one of the most complicated tasks, usually, in the course of a criminal trial. That task is made all the more complicated when dealing with offenders with FASD.
While Bill C-235 seeks to establish a presumption that FASD is a mitigating factor for sentencing, it should be noted that the courts have not responded in a uniform way on that particular issue. There are many reported cases in which the courts have taken into account the particular facts and circumstances of the case and the particular facts and circumstances surrounding the offender, and determined that FASD should be a mitigating factor for the purpose of sentencing.
However, there are other cases in which the courts have held quite the opposite in finding that FASD should be an aggravating factor. One such case, for example, is the I.D.B. case in which a provincial court judge in Alberta found that it was an aggravating factor. The decision of the provincial court judge was upheld by the Alberta Court of Appeal.
The bottom line is that, any time we are dealing with a case involving FASD, every case is unique, no case is the same, and each case is incredibly complex. I certainly note that Bill C-235 seeks to amend the Criminal Code by creating this presumption. I do have some questions as to whether that presumption is appropriate, given that there is no one-size-fits-all case involving offenders with FASD, and yet to some degree part of Bill C-235 could create a one-size-fits-all approach in terms of sentencing, arguably, in terms of at least establishing this presumption of it being a mitigating factor. That being said, it would be only a presumption.
Second, I do have some concern with the fact that Bill C-235 deals exclusively with offenders with FASD, but it does not encompass offenders who have other illnesses, including the fact that it creates a specific presumption for persons with FASD but would not extend that presumption to persons who suffer from other mental illnesses. In that regard, I have some concern that the bill could perhaps create an inconsistency in the Criminal Code that could potentially be problematic.
In closing, I want to congratulate the member for Yukon for bringing forward the bill. It is an important issue, a complicated issue, and I look forward to the debate this evening on it.