Mr. Speaker, today I rise to contribute to the second reading debate on the matter of Bill C-235, An Act to amend the Criminal Code and the Corrections and Conditional Release Act, fetal alcohol disorder. I would like to begin by thanking most sincerely the member for Yukon for his advocacy on this very important issue. With this private member's bill and other initiatives, he is growing a greater awareness of a disorder that often goes unnoticed.
The private member's bill would amend both the Criminal Code and the Corrections and Conditional Release Act to provide special treatment for individuals with fetal alcohol spectrum disorder, FASD, who are involved in the criminal justice system. The bill proposes to do essentially four things: first, to define FASD in the Criminal Code; second, to permit judges to order FASD assessments for bail and sentencing; third, to require sentencing judges to consider FASD as a mitigating factor for the purposes of sentencing; and, finally, to require Correctional Service of Canada to provide FASD-specific programming for individuals who are serving prison sentences in federal facilities.
FASD is a diagnostic term used to describe the brain damage caused by prenatal exposure to alcohol as a result of maternal consumption of alcohol. In other words, if a pregnant woman consumes alcohol while she is pregnant, it may result in irreversible, lifelong brain damage to her baby. According to the Public Health Agency of Canada, FASD affects at least 1% of all babies born in Canada, and it is the leading cause of preventable congenital brain damage and developmental disability. However, due to the fact that there are usually no obvious external physical indicators, FASD is for all intents and purposes invisible. The invisible nature of this condition is one of the reasons it poses such a challenge to the criminal justice system and, indeed, to our greater society.
I want to emphasize at the outset that the government fully supports the very laudable objectives of the private member's bill. However, after careful consideration, we have concluded that the bill presents serious policy and legal challenges that cannot be substantially addressed through amendments; and therefore, for these reasons, the government is unable to support the specific proposals of this bill.
We come to these conclusions after reading the recently released report from a committee of federal-provincial-territorial experts on the exact proposals covered in this bill. This group of experts, the Federal-Provincial-Territorial Steering Committee on Fetal Alcohol Spectrum Disorder was struck at the request of federal-provincial-territorial ministers responsible for justice and public safety. Their mandate was to study the issue of FASD in the criminal justice system, and to consider how to improve access to justice for individuals with FASD and to make recommendations for action to ministers and deputy ministers responsible for justice and public safety.
The committee members considered several proposals for legislative reform to address FASD, including the specific ones that are proposed in Bill C-235. The FASD steering committee reported its findings and recommendations to the ministers of justice just this past October and their report was made publicly available. I would encourage each and every member who has not already done so to read this report, which is publicly available online at the Canadian Intergovernmental Conference Secretariat. I would also like to draw members' attention to one of the overarching themes in the report that speaks directly to the heart of the proposals that are before us today.
The committee concluded:
...legislative amendments which would single out one specific disability for special treatment to the exclusion of others was not supported. It was noted that the criminal law does not currently single out specific disabilities and no policy rationale for singling out FASD in this way was identified.
This is a very important point, and I would like to take a moment to reflect briefly on it. The Criminal Code does not currently define any specific mental disorders or disabilities. Instead, section 2 of the code defines mental disorder broadly as disease of the mind. This has been interpreted by the Supreme Court of Canada to embrace any illness, disorder, or abnormal condition which impairs the human mind and its functioning. FASD has been found on numerous occasions to be a mental disorder under this very broad definition. The bill's proposal to include a definition of only FASD would therefore likely raise questions about why the law does not also specifically identify any other disorder, and may lead to calls for their inclusion in the future.
While specifically identifying other disorders may seem like an obvious solution to this challenge, I invite members to consider that there are more than 300 separate and distinct mental disorders listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders.
One can only imagine what the Criminal Code would look like if each and every disorder was specifically defined and our courts were given instructions to treat each specific disorder diagnosis differently. Proceeding in the manner proposed by the bill before us could, unfortunately, create a potential discriminatory impact of establishing a regime that focuses exclusively on one particular disorder to the exclusion of others. This reflects one of the many possible unintended consequences of the bill.
The government also had similar concerns with respect to the proposed FASD assessment power. It would permit judges to order FASD-specific assessments for a number of enumerated reasons under the criminal law. The proposal to only permit a court to order an FASD assessment would mean that other disorders would not be diagnosed, potentially creating a hierarchy of medical conditions in the criminal law.
I would like to return for a moment to the report of the FASD steering committee. It also expressed concern with the issue of creating a specific FASD assessment power in the Criminal Code. However, it recognized that in the area of sentencing, the ability of the court to order a broader assessment of the mental condition of the accused was unclear, and therefore these assessments are not undertaken in a consistent way across the country.
The steering committee was of the view that clarifying the Criminal Code assessment power to permit a broader assessment of the mental condition of the accused for the purposes of sentencing would permit the court to gather relevant evidence about the accused, including information about the offender's capacities, limitations, and support needs. Such an approach would provide an opportunity to address many of the concerns underlying the proposal for specific FASD assessment and could have a positive impact for all offenders in the criminal justice system, not only for those with fetal alcohol spectrum disorder.
The government agrees with the conclusions of the steering committee that FASD should not be specifically singled out, but that there should be a study of a broader assessment power for the purposes of sentencing, and I would support that approach.
In conclusion, although the government cannot support the proposals as they are presented in the bill, I want to take a moment to reflect and to again thank the member for Yukon for bringing this very important issue before Parliament. His efforts and his passion have created a national discussion on this very important issue, and I would like to personally commend him for his leadership and his commitment.
