Mr. Speaker, it is my pleasure to speak today to Bill C-235, an act to amend the Criminal Code, regarding fetal alcohol spectrum disorder.
I would like to begin by thanking the member for the Yukon for his long-standing advocacy on this important issue. By introducing this private member's bill, he has focused the attention of Parliament on a disorder that goes too often unnoticed in society. For this he is to be commended. He is clearly motivated by a desire to help society's marginalized and in the process create a safer and more just society. This private member's bill proposes to make changes to both the Criminal Code and the Corrections and Conditional Release Act to address the pressing challenge of persons with fetal alcohol spectrum disorder in the criminal justice system.
The issue of FASD was discussed by federal, provincial, and territorial ministers responsible for justice and public safety at their recent meeting this past October. At that meeting, the ministers approved a report from a steering committee of officials who were tasked with examining the issue. The report, which is now publicly available, sets out several comprehensive recommendations for addressing FASD in the criminal justice system. I will return to that report in more detail in a few minutes because it raises some key points.
First, though, I would like to say a few things about FASD itself.
As we have heard, FASD is a diagnostic term used to describe brain damage caused by prenatal exposure to alcohol. When a woman consumes alcohol while she is pregnant, the alcohol can impact the developing fetus and alter both the physical structure of the brain and the brain's capacity to function. This brain damage is permanent and has lifelong and far-reaching impacts on the individuals it affects and on society as a whole. FASD poses challenges for the criminal justice system, because without appropriate supports, individuals with FASD can be impulsive, unable to regulate their behaviour, and may be unable to learn from their mistakes. In fact, one study has estimated that 60% of individuals with FASD end up in trouble with the law.
This concern is compounded when combined with the limited available data about the number of individuals with FASD who are incarcerated in Canadian prisons. The most recent data on FASD in corrections comes from the Yukon. In that jurisdiction, the prevalence of FASD among convicted offenders is at least 17%. This number could in fact be as high as 34%, but given the challenges in confirming maternal alcohol consumption, the diagnosis cannot be conclusively made for these other individuals.
When faced with an overwhelming challenge to the criminal justice system such as FASD, often the first instinct is to look for a legislative solution. Amending the Criminal Code to specifically address FASD seems like an obvious place to start. However, as with many complex social issues, the most effective solution is often just as complex and may not be found in legislation. I would encourage all of us to think about the most effective way to truly have a positive impact on the lives of people with FASD.
It is worth noting that the report approved by federal, provincial, and territorial ministers in October, which I mentioned earlier, was the product of several years of study by the Steering Committee on FASD and Access to Justice comprised of officials from across the country. Their report did not recommend specifically naming FASD in the Criminal Code because that would single out one disorder to the exclusion of all others. Rather, it recommended further study of whether a more general assessment power for all mental disorders, including but not limited to FASD, would be a useful reform to assist courts in sentencing persons who are living with these conditions. Such a recommendation, especially from this source, merits consideration.
I would like to spend my remaining time discussing some of the specific proposals of Bill C-235 that raise some thought-provoking issues.
Bill C-235 proposes a legal definition of the term “fetal alcohol disorder” for the purposes of the criminal law. I note that this is slightly different from the medical term that is used to describe the condition, which is “fetal alcohol spectrum disorder”.
As part of the legal definition, the bill also lists some common symptoms of FASD, including impaired mental functioning, memory problems, and the inability to control impulse behaviour. I would note that this element of the bill would be a significant change in the Criminal Code, which currently does not single out specific disorders for differential treatment. The current approach is to use the general definition of mental disorder in section 2 of the code, which, according to the Supreme Court of Canada, can include an “illness, disorder, or abnormal condition which impairs the human mind and its functioning”.
I am given to understand that FASD is already considered a mental disorder for the purpose of criminal law, so it is entirely fair to ask whether it is necessary to create a separate definition specifically for FASD. Should we be concerned that this may result in pressure to single out other disorders in the Criminal Code?
The bill also proposes to permit the courts to order FASD-specific assessments for the purpose of bail and sentencing. It would require a sentencing court to adjust the sentence of the offenders if it was shown that they had FASD and that the FASD contributed to the commission of the offence.
These elements of the bill appear to be aimed at ensuring that the court has the necessary information to make appropriate decisions about a particular individual at the bail stage and to be sure that any sentence imposed is proportionate to the degree of responsibility of the offender. These are commendable objectives and ones that I know are shared by all those who advocate for a fair and effective criminal justice system.
The proposal for an assessment at the bail stage raises questions about the potential impact on the presumption of innocence and the liberty interests of accused persons who are suspected of having FASD. In particular, the bill would permit an accused to be held in custody for up to 60 days in certain circumstances while the assessment was undertaken. Given that this would occur before any trial on the merits of the charge, or potentially even before the bail hearing itself, it is possible that an assessment could in fact work to the detriment of the accused in some cases.
At the sentencing stage, it is fair to question whether the objective of imposing a proper sentence should only apply to individuals with FASD or whether there may also be a pressing need to consider the relevance of mental disorders or disabilities more generally, as the report from the federal-provincial-territorial steering committee recommended.
Finally, the bill proposes amendments to the Corrections and Conditional Release Act, which would further require the Correctional Service of Canada to provide FASD-specific programming for individuals with FASD who are serving a federal sentence.
In conclusion, I would like to thank the member for Yukon for providing us with an opportunity to debate this important issue facing the criminal justice system. As he indicated, this is an issue that was presented in the form of two private member's bills in the last Parliament. They never did make it to the stage of having gone through committee, in part because of the call of the election and also in part because of some determination by the former member for Yukon to withdraw the bills to have them converted into a study.
It is a timely debate. It is one that needs to be had. The member for Yukon is doing the right thing by bringing it forward, and I look forward to hearing from other members of the House on this important issue.