Mr. Howard Sapers (Correctional Investigator, Office of the Correctional Investigator):
Thank you very much, Mr. Chair. I appreciate it.
Thank you, committee, for the invitation to appear before you this afternoon in the context of your study of Bill C-583.
I'll speak about some of what it is that we know about the prevalence of fetal alcohol spectrum disorder, and as important, some of what it is that we don't know about the disorder in corrections, and the specific outcomes for federally sentenced offenders affected by fetal alcohol spectrum disorder. I'll comment on the capacity of the Correctional Service of Canada to meet rising mental health care demands in federal prisons, and conclude with some considerations that I believe are relevant to your study of this proposed legislation.
With respect to the prevalence of FAS disorders amongst individuals involved in the criminal justice system, there is no one conclusive or confident dataset, though it is an area that has attracted more research and attention in recent years. Estimates for FAS-disordered individuals amongst correctional populations vary significantly, with numbers typically ranging from about one in 10 to nearly one in four.
It is difficult to reliably establish prevalence rates in correctional settings as there is considerable variation in methods of diagnosis, testing, and case identification. It is complicated by the need for some diagnoses to confirm a history of maternal drinking in a population who were often the victims of abuse, neglect, or subject to intervention by child protection authorities. The impact and interplay of socio-economic factors and criminal justice system involvement in disadvantaged settings suggests that FASD is a substantial problem among youth and adult correctional populations. FASD is a lifelong, clinically recognized disability; an afflicted person does not outgrow their brain injury.
The research to date suggests that individuals with FASD are at increased risk of coming into contact with the criminal justice system due to neuropsychological deficits in judgment, difficulty understanding consequences of behaviour, inability to make connections between cause and effect, impulsivity, drug or alcohol misuse, and a failure to learn from past mistakes. The range of cognitive deficits that characterize FASD have important legal and practical implications for the criminal justice system.
As a group these individuals challenge some of the underlying premises of sentencing, namely that defendants understand the relationship between actions, outcomes, guilt, culpability, and punishment. The response of the criminal justice system may, in fact, exacerbate individual difficulties associated with fetal alcohol spectrum disorder. For example, sending an FASD-affected person to jail to “learn a lesson” may be an exercise in futility. A sentence founded on specific or general deterrence is not likely to be meaningful for an FASD person.
In 2011 the Correctional Service of Canada conducted one of its first comprehensive research studies of FASD prevalence in federal corrections. It found that amongst a sample of newly admitted adult male offenders aged 30 and under, 10% of the participants met the criteria for a diagnosis of FASD. Another 15% of the sample met some of the diagnostic criteria, but were missing information critical to making or ruling out a positive diagnosis. The rate of FASD amongst this sample is 10 times higher than the current general Canadian incidence estimate, which according to Health Canada is about nine in 1,000.
The research also demonstrates that those diagnosed with FASD had a higher risk and needs rating compared to other offenders. FASD-affected offenders had severe neuropsychological deficits in attention, executive functioning, and adaptive behaviour. They were much more likely to have had multiple convictions and previous periods of incarceration as both youth and adults. Offenders with FASD have more problems adjusting while incarcerated. They are less likely to have completed school, and more likely to have dropped out at an earlier age than other offenders. They are more likely to report a personal and family history of abuse, substance abuse, and delinquency.
Research confirms another important finding that goes to stigma and perception, which is that the level of violence used during the commission of their crimes was not markedly different from non-FASD affected offenders.
Significantly, none of the offenders diagnosed in this research study had been previously identified as being FASD-affected. As the research concludes:
||There is a population...within Correctional Service Canada who are affected by FASD who are currently not being recognized upon intake, and are not being offered the types of services or programs that meet their unique needs.... Screening to identify those at risk for an FASD is necessary and has been demonstrated as feasible in a correctional context.
Four years later, Corrections Canada still does not routinely screen for FAS disorder among newly admitted, federally sentenced offenders. This is a vulnerable population with significant mental health and behavioural needs. More recent CSC research confirms that those with FASD exhibit deficits that impact their ability to adjust to an institutional setting. As such, they are more likely to be involved in institutional incidents, both as instigators and as victims, and to incur institutional charges. They complete their correctional programs at much lower rates and they typically spend more of their sentence incarcerated before their first release. Offenders with FASD are more likely to be returned to the community on statutory release.
The unfortunate reality is that most FASD-affected offenders come into prison undiagnosed and untreated, and they remain that way. There is very little programming for affected adults in the community and there are no correctional programs specifically for offenders with FASD. CSC can and does adapt interventions to accommodate needs. There is evidence to suggest that individuals with FASD can benefit from programs that are structured, highly repetitive, and that use multiple delivery modalities.
I will conclude my remarks with a cautionary note. Bill C-583 contemplates an amendment to the Criminal Code that would require the courts to consider as a mitigating factor in sentencing a determination that the accused suffers from FASD. It is a proposed change to sentencing principles that is similar in intent to paragraph 718.2(e) of the Criminal Code, which was enacted in 1996 and which expresses the need for judges to consider all other sentencing alternatives before sending an offender to prison, with particular consideration for the circumstances of aboriginal people. The seminal Supreme Court of Canada decision in R. v. Gladue, 1999, interpreted this provision as a remedial measure aimed at combatting the overrepresentation of aboriginal peoples in Canadian prisons. Though the intent of paragraph 718.2(e) was to show restraint in the use of incarceration, the outcome of this measure has not lived up to the optimism about it.
When the Criminal Code was amended in 1996, aboriginal people represented 15% of the total offender population. Today, almost 25% of the federal inmate population is of aboriginal ancestry. These trends are accelerating. In fact, the incarcerated aboriginal population has increased by more than 50% in the last 10 years. If there has been judicial restraint, it has not translated into an actual decrease in the number of aboriginal people being sent to Canadian jails and prisons.
A correctional system that relies on obeying orders and rules that incentivize appropriate conduct and requires an offender to demonstrate behavioural progress is not particularly accommodating to persons afflicted with FASD. Similarly, a parole and pardon system that is predicated on the need and capacity to express remorse and learn from past mistakes is also not well-suited to FASD-affected persons.
I have suggested that the challenges faced by FASD-disordered individuals are largely at odds with the purposes of sentencing and incarceration. It is one thing to shed light on the causal factors that may have brought an FASD-afflicted person before the courts. It is quite another to have in place upstream diversion and treatment programs, services and supports in the community that could provide the courts with an appropriate disposition other than incarceration. Sentencing is a back-end measure. There is a need for screening and diagnostic services to be made available to FASD-afflicted persons at first contact with the criminal justice system. Prevention and diversion should be front-end considerations. By the time a case makes it to sentencing, options other than incarceration have become considerably restricted.
Notwithstanding these concerns, it may well be time to consider broadening the definition of mitigating factors at sentencing to include all forms of mental illness and disability, not just FASD. Such consideration, while late, would certainly be better than never.
Thank you very much for your attention. I look forward to your questions.
Dr. Jocelynn Cook (Scientific Director, Society of Obstetricians and Gynaecologists of Canada):
I think you all should have a PowerPoint deck. I'm a scientist, so you're going to be stuck with doing things the scientist's way. I also submitted a brief.
I am the scientific director of the Society of Obstetricians and Gynaecologists of Canada. I was formerly the executive director of the Canada FASD Research Network, which is a national research network that facilitates policy-relevant research in Canada. I also worked for the public service for about nine and a half years—all within FASD. I also have had a scientific research career in the field that I've been in for—I counted this morning—23 years. I'm starting to feel a bit old.
Thanks for having me here.
Dr. Popova and Dr. Andrew and I exchanged slides so we shouldn't have any duplication, so that's good. We know that your time is valuable.
Today I'm going to take a bit of a different approach and talk a little about the context around women and alcohol. We know that women do drink during pregnancy and we know that no woman actually wants to harm her child.
There are a lot of different reasons why women do drink during pregnancy. The first slide shows some of those reasons: prior history of alcohol consumption; family background of alcohol use; history of in-patient treatment for problematic alcohol substance use or mental health problems; previous birth of a child with FASD; unplanned pregnancy; emotional, physical, or sexual abuse; low income; limited access to health care.
The burning question in the field since I've been in it for a really long time is: how much alcohol is too much? How much can a woman drink that's going to be absolutely guaranteed to keep her fetus safe? The answer is that we don't know. We can't scientifically figure out an absolute safe amount or an absolute risky amount. The amount of alcohol required to cause damage differs, based on the individual, on the fetus, and their interactions in the womb together.
We know that the dose of alcohol is important. Research does show that binge drinking is more harmful. When your blood alcohol level goes up and stays up high for a while, like frat party drinking, and then goes down, that's more harmful than sipping on a beer all day long.
We know that pattern and timing of exposure during pregnancy is important. As the baby develops, when alcohol is a factor, what's developing at that time can be specifically influenced. The important thing to know is that the brain is developing throughout gestation and is always susceptible to alcohol. We used to be able to give alcohol to mice on a certain day of gestation—just one day—and they'd be born with limb and kidney defects. You can give it on a different day and they'll have facial features. But the problem, as I said, is that the brain is always susceptible.
We know that genetics play a factor. We know that smoking and other drug use comes into play. General health, nutrition, stress, trauma, and age of the mom are all factors on how susceptible that fetus is to prenatal alcohol exposure and the damage. There's recent data now that I think is very exciting, probably more than others, that shows that stress and nutrition factors in mom, even before she's pregnant, can have a susceptibility factor on her developing fetus. That's called epigenetics, and it's very fascinating. There can be brain changes in moms that can be passed on to babies and affect their susceptibility as they're developing.
We always say that no alcohol is safe because that's the truth; we don't know any different.
The next slide talks about some of the data from the Canadian community health survey about alcohol use among women. It is a problem in women of child-bearing age. You can see that moderate alcohol use is very high in the 19-to-34 age group, and this age group accounts for about 80% of the pregnancies in Canada. We know that about 50% of pregnancies are unplanned, so alcohol use among women in Canada of child-bearing age who are at risk for being pregnant is significant.
The Canada FASD Research Network has a first-ever database of individuals with FASD. We have 289 individuals in that database, and we're collecting information around their brain function and what kinds of interventions have been suggested, so we can try to figure out what the best match is. The gentleman earlier talked about the importance of mental health and brain function and how we can match that to programs or treatments that improve and maximize outcomes.
This data hasn't been published yet. It's new. It's hot. It's exciting. But the characteristics of adults with FASD in our database—alcohol problems, marijuana use, drug problems, past or current trouble getting and keeping a job—are for greater than 50% of the adults. Eighty-five per cent have trouble living on their own. There are some who could be homeless. Eighty-five per cent had no high school diploma, 63% were a legal offender, and half were a legal victim. Many of the patients were institutionalized at the time of assessment or in the past. Fifty-seven per cent had been in the hospital, and 40% in jail. These are the adults in our Canadian database. There are lots of challenges with daily living, social-skill deficits, and the majority had family abuse problems as a victim, aggressor, or both.
These individuals are very affected. Their brains are much more affected than we initially thought they would be, but diagnosis really does matter. Many of you may have heard of the diagnostic guidelines that the Canadian Medical Association published in 2005. We've revised those guidelines, thanks to funding from the Public Health Agency of Canada, and they're being published, hopefully in June. We just resubmitted them to the Canadian Medical Association Journal. The guidelines talk a little bit more about screening and how to recognize when alcohol use during pregnancy may be a problem.
We know that diagnosis improves outcomes, the earlier the better. Part of that is because people understand the implications of FASD, what it means, and we can try to develop integrated care teams to get families the supports and services that they need. Diagnosis is important. It identifies neurodevelopmental strengths and weaknesses so that we can better match, as I said, treatments and interventions. It's complex, and I will mention that we do have an initial diagnostic database that could be very powerful.
So why doesn't any of this matter? We know that women drinking alcohol during pregnancy is still a significant issue in Canada. Prevention in the current social context is key. Drinking alcohol is sexy in a lot of ads. It's very socially acceptable. Helping women to understand not just the harmful effects of alcohol on fetal growth and development but also the harmful effects of alcohol on health in general....
Individuals with FASD have neurodevelopmental impairments, which you heard about this morning—and Dr. Andrew will talk more about those—that put them at risk for adverse secondary outcomes, such as trouble with the law and mental health issues. A study by Jacqueline Pei, who I think is going to talk to you next week, showed that 95% of individuals with FASD had diagnosed mental health issues. They have brain structure differences and brain function differences. That's very important when you think about treatment of individuals with neurocognitive impairments. Diagnosis is critical to understanding brain function, and adaptive programming can improve outcomes for affected individuals and their families.
We know that brain impairment really does affect outcomes. We know that in our database individuals had more central nervous system impairment than was anticipated. Consensus from experts in the U.S. and a few Canadians who populated the panel suggested that treatment approaches that rely on assumption of normal cognitive functioning are likely to be less effective with individuals with FASD, and that makes sense. That's what you heard from the other individuals who spoke just now.
We also did an interesting study where we worked with mental health centres and substance abuse treatment centres. We did some education with the front-line workers, and we taught them to screen for possible FASD. We collected some data from that. We're analyzing that now to see, if they understood that parental alcohol exposure may be a factor, how they interacted with these individuals and how they changed what they were doing so that they could better improve outcomes.
In terms of what we really need, we need access to capacity for diagnosis, because that's so important. We need standardized data collection or we're never going to be able to make any really good evidence-based decisions on what works and what doesn't work, and what the specific characteristics and matched treatment approaches are. We need training in education. We learned in our study that front-line workers felt a lot more comfortable dealing with individuals who had FASD when they understood the implications of FASD and that these people weren't misbehaving because they meant to. We need more research on specific interventions or supports that improve outcomes for affected individuals and families across the board—across services and across systems.
Thank you. Was I on time?
Dr. Gail Andrew (Medical Director, Fetal Alcohol Syndrome Disorder Clinical Services, and Site Lead, Pediatrics, Glenrose Rehabilitation Hospital, Alberta Health Services):
Thank you very much for having me today.
I'm a clinician, researcher, and I also do a lot of education and training around fetal alcohol spectrum disorder and other neurodevelopmental disabilities, as I am a developmental pediatrician.
What I'm going to talk about to you today is more from that clinical, medical, diagnostic perspective. I think we've heard from our other presenters that FASD is common, maybe in up to 5% of the population, it's very expensive, and it is overrepresented in the justice system. As I've worked across the lifespan, it's overrepresented in children who are in the foster care system as well. It's a lifelong disability, and I strongly feel it is a mental disorder. In the DSM-5, which is the diagnostic and statistical manual, it is currently being considered for psychiatry use, so it is definitely recognized as a mental disorder caused by damage from prenatal exposure to alcohol.
It is an invisible disability because we only see the dysmorphic face of full fetal alcohol syndrome in about 10% of the population. As Dr. Cook explained, we create FAS in the laboratory rat models and we know it's just a small window of time, three days, in human gestation where that face is a result of the teratogenic effect of alcohol. It's not surprising then that we don't see the face in most individuals affected by prenatal exposure to alcohol.
We also don't have any biomarkers, such as a blood test. There are some biomarkers of interest in the research world, such as eye movement, but we have a lot of research ahead of us before that becomes a clinical tool. Right now we need to assess 10 different brain domains in the clinic in order to make a diagnosis of fetal alcohol spectrum disorder. It's also a differential diagnosis. We consider many other factors.
We also know that prenatal exposure to alcohol is often not the only factor. Dr. Cook mentioned some of the maternal stress factors, maternal nutrition. There's also genetic endowment. We also know that postnatal stressors, especially in the early years—exposure to trauma, maltreatment, toxic stress, and so on—can also have a long-term impact on brain development that is not necessarily reversible by simply optimizing the environment if we've lost that window of time in the early years.
Currently, we don't have diagnostic capacity in Canada, although we're far ahead of many other countries to provide the diagnosis. There's less diagnosis available for the adult population. There are some good models of diagnostic clinics embedded within the justice system that I think need to be followed as examples of good practice. The diagnosis is not just a label of a four-letter word. It must lead to a constellation of strengths and challenges for that individual so that we can design the appropriate intervention programs.
I'm going to talk a little bit about the scientific evidence we have from both the animal models, as well as from the human neuroimaging and neurochemical techniques that support that alcohol exposure prenatally does indeed cause brain damage.
We know that alcohol can alter the brain cell development in the neurons by causing simply cell death, or it can interfere with the neurons migrating to the right level of the brain where they need to be for functioning and then connecting with other neurons, because that's how information is conveyed from neuron to neuron. It can interfere with myelination, which is an important part of that conductivity of those pathways. It can cause epigenetic changes and it can alter neurotransmitter activity. Neurotransmitters are those chemicals that go from one brain cell to the other in brain functioning. The brain neurotransmitters impacted are dopamine, serotonin, and glutamine, which are implicated in almost all of the mental health disorders that we know of. It can also alter the stress response through the hypothalamic-pituitary axis and cortisol, so if you have the normal stress responses, you can see in certain situations the right outcome is not going to happen.
One of the exciting parts is neuroimaging studies. A clinical MRI that I do today on my clients shows me usually no abnormalities in structure unless we have abnormal neurological findings that I find on my clinical exam. But in our lab we're able to do very highly refined imaging and we do see abnormalities, specifically in decrease of brain volume and abnormalities in cortical thickness. There's actually less thinning, so less pruning goes on. Pruning is important in normal learning and development.
We see reductions in key pathways connecting one part of the brain to the other, especially the frontal lobes of the brain, which are the seat of our executive functions. Those pathways are reduced, and we've seen, in our own research lab at the Glenrose, a direct correlation with one pathway and difficulties with reading.
Functional MRIs have shown that there is a difference in function in different areas of the brain. One study showed that the frontal lobe of the brain was working harder as the task got more complex, but it was less efficient and it led to early mental exhaustion. Again, harder work doesn't necessarily get you a better result.
We talked a little about the adverse environments that can be compounding the effect of prenatal exposure to alcohol, and I think this is an area of.... I'm always looking for opportunities for prevention intervention. When we look at adverse life experiences and we look at why women drink, they're all rooted in the social determinants of health and this is an opportunity to put in place interventions and preventions to break this multi-generational cycle.
I'm going to quickly go over some of the brain assessments that I can do in my day-to-day clinic.
An average assessment costs about $4,000 and you can see from the number of domains that we test why this is an expensive assessment, but it's worth the money and investment to inform best practices moving forward. Intellectual ability is one area that we use as a baseline, but IQ does not define the disability and level of impairment in individuals with FASD. Often their IQ levels are within the average range. We need to move beyond the basic testing into assessing memory, attention, executive functioning, and adaptive functioning.
One problem with an IQ above 70 is that currently you do not qualify for any of the supportive funding or housing systems as adults, and in most cases as children and teenagers, you don't qualify for extra educational supports. What happens is that you then transition to adulthood without essential academics, training, or employability options. You have no funding. That can lead to homelessness and unemployment. Food as a commodity is scarce. You're in a homeless situation. You can see this person coming in contact with other people who may drag them into becoming involved with the law. We know when we look at intellectual abilities, often individuals with FASD are slower at processing, so this has implications in a very fast-moving court scene, arrest situation, where they may not be processing all the information.
One of the areas we also look at is academic abilities, learning. Reading disability is very common when we do our academic assessments. They may have superficial reading abilities, so that they can read the words but they lack the comprehension and understanding. You can see how somebody reading their parole conditions or reading a document that they need to sign to say this is what happened.... Don't necessarily leap to the conclusion that they have understood what they have read. This may explain a lot of our breaches.
Math disability is really important, which impacts both money and time management and understanding. No wonder our individuals don't show up on time for an appointment or they don't understand the financial value of items and they aren't able to handle their own money for budgeting and daily living without extensive mentorship and other external supports.
Attention issues are another I'd like to cover. It's very common, about 65% of individuals with FASD also get a diagnosis of attention deficit hyperactivity disorder. They have problems focusing on what is relevant, inhibiting responses to what is not relevant. They're easily distracted by extraneous cues in their environment. Having a short attention span impacts your ability to learn in the academic world, but you also can't learn from day-to-day experiences. If you have FASD with a short attention span, you may not be paying attention to all the information in your environment. You can't put the information into your memory and retrieve it when you want it, and then you can't use any of this information for the right decision-making at the right time. This can help explain a lot of them not being able to learn from their mistakes or the consequences of their actions. Don't assume the individual with FASD who appears to be listening is attaining and processing the information.
Memory problems are also significant, both in verbal memory and in visual-spatial items. Short-term memory and long-term memory can be impacted. If you have an impaired memory, you may not be able to remember and use the information that you were taught in your group therapy session in order to use it in that moment in time when you need to use it. Memory deficits and FASD are especially more noticeable in an emotionally charged situation, such as being interrogated for a crime or being a witness on the stand when you're a victim. Problems with memory can lead to confabulation.
Executive function is a really core deficit. Executive function refers to higher order processes that result in goal-directed behaviour, such as planning, organizing, impulse control, inhibition, flexible thinking, working memory, reasoning, and so on. We can measure all of these in our clinic situation, and we look at all those core deficits. They can certainly explain why somebody is not able to control their impulses and make the right decision at the right time.
Communication deficits, which I've already alluded to, are significant. They can present well, talk a lot, but don't always understand at a higher level. We analyze, in our clinic situation, inferencing, predicting, social communication deficits. All are implicated in getting into trouble with the law. Social communication deficits are also implicated in making bad social choices, getting in with the wrong crowd, and then being led and becoming more of a victim rather than a perpetrator.
All of these deficits lead to impaired adaptive functioning, which at the end of the day is how you function safely in life and independently. We often say our individuals with FASD are maladaptive, but really they just simply can't use all of the information from their environment to make that right decision at the right time. We need to put in place good strategies.
We've already talked about the overlap with mental health, and when you reflect back on the fact that our neurotransmitter systems are changed by the prenatal exposure to alcohol, there's no wonder that we have a higher level of mental health disorders associated with FASD.
In my briefing notes I did provide a reference to the legal conference that was held in Edmonton on the legal issues of FASD. It has been printed through the Institute of Health Economics website and I would refer the members of this committee to have the opportunity to both look at the consensus conference and the document that was developed as the result of that. Many learned individuals contributed.
Mr. Rodney Snow (As an Individual):
Thank you, Mr. Chairman.
I am, as you say, Rod Snow. I work as a lawyer in Whitehorse in the Yukon, but I appear today as an individual and not on behalf of any client or organization.
Let me start with full disclosure. I'm not an expert. I'm not an expert in criminal law and I'm not an expert on FASD, but over the last 10 years I have taken part in the national conversation on the treatment of individuals with FASD in the criminal justice system. Today I want to tell you about some of what I've learned and about how you can make a difference, I think, in the lives of individuals with FASD.
At the risk of repeating some of what you may have heard already, let me start with some of the key facts that have framed elements of this national conversation. First, FASD is a permanent organic brain injury. There is no cure, although outcomes can improve with treatment. Second, characteristics of individuals with FASD include impaired executive functioning, lack of impulse control, and difficulties understanding the consequences of their actions, so they often don't learn from their mistakes. Third, criminal law assumes that individuals make informed choices, that they decide to commit crimes, and that they learn from their own behaviour and the behaviour of others. Fourth, these assumptions are often not valid for individuals with FASD, so our criminal justice system fails them and it fails us.
So what do we do?
I start from the proposition that nobody is more morally innocent than a baby born with a disability. When that baby grows up and is unable to meet a legal standard of behaviour because of his or her disability, the state does not deliver justice by punishing, yet that is what we do in Canada.
The tools that Parliament has given crown counsel and judges are limited. If you speak to people who are working on the front lines, you will hear the same story over and over again. It goes something like this. They will tell you that too often children with FASD start out in the child welfare system. They proceed into the youth criminal justice system as teenagers, and then move into the adult criminal justice system, where the cycle starts all over again. They know that jail time will not rehabilitate, deter, or cure the individual with FASD, but they have few tools to stop this revolving door. Eventually everyone gets out, but the time in jail has done little to help the individual or to improve public safety. This is where you come in, as members of Parliament. We need you to support changes to the Criminal Code and our corrections system so that they are smart and effective on crime.
We know that the old approach is not working. We need a new one that's designed to succeed. I think it was Einstein who said that doing the same thing over and over again and expecting a different result is the definition of insanity. There's a broad consensus that law reform is needed. In 2010, with the support of crown prosecutors and defence lawyers, the Canadian Bar Association supported initiatives in this area by federal, provincial, and territorial justice ministers and called for measures to decriminalize FASD. Then justice minister Nicholson quickly said FASD is a huge problem in the justice system—“huge problem”, his words, not mine.
Provincial court judges support the bar association's call for reform. FPT justice ministers committed to dealing with FASD as an issue of access to justice, and in August of 2013 Justice Minister MacKay made a public commitment to act on this issue. So I was excited when Ryan Leef introduced Bill C-583.
Bill C-583 has three main elements. First, it defines FASD. Second, it allows a judge to order an assessment, and third, it allows FASD to be considered a mitigating factor in sentencing. All three elements are important, but I want to draw your attention to the section that allows a judge to presume that the cause of FASD is maternal consumption of alcohol if there is good reason why that evidence is not otherwise available. We want to avoid situations where everyone knows that FASD is involved, but an assessment remains inconclusive because this evidence is missing.
I don't have to tell you, Mr. Chair, that Bill C-583 received support from all parties. I sat on the Yukon legislature when Yukon MLAs unanimously passed an NDP opposition motion to support Bill C-583, and I understand that MP Casey has introduced Bill C-656 that adopts much of Bill C-583 and goes further in the areas of external support orders and corrections reform.
I was disappointed when Bill C-583 was withdrawn. Many of us thought that, with support from all parties, it had a chance. Now we turn to you and your committee, because we feel that it's the best hope for reform. I urge you to listen, and listen carefully. Please consider action that can be taken to prevent FASD, to encourage assessments, and to improve outcomes for those in the federal penitentiary system.
I also encourage you to hear from people with this disability and their families. People with disabilities have often said, “There should be nothing about us without us.” When you report, please do not confuse the need for more medical research or scientific study with the value of Bill C-583. Do not say that this is a complex, intractable issue, and therefore, Bill C-583 or its equivalents need more study before action. It needs more political courage and leadership.
I think Ryan Leef has done his part, with limited resources. It is now time for Minister MacKay, with the resources of the Department of Justice at his disposal, to honour his 2013 commitment to act.
When you report, say that the criminal law needs to be reformed and that Bill C-583 is a good start. Please say that unequivocally and unanimously. Do not sacrifice the good in the pursuit of the perfect. If you back Bill C-583, you'll make a positive difference in the lives of individuals with FASD.
Parliamentary leadership matters. By doing so, you will encourage further action in our communities, provinces, and territories, and that, too, is good.
Thank you very much.
Ms. Françoise Boivin:
Thank you so much.
Thank you to all the witnesses. This is very interesting.
I first have a few comments for our colleague Rodney Snow.
I totally agree with you. In a sense, it's kind of disturbing, because I did think that we would advance with this. It's rare in this committee that we have unanimous consent for something, so it was pretty uplifting to see that we would advance in the sense of what have been some recommendations, either from the Canadian Bar Association or promises from two justice ministers. I feel as though we're back to square one, if not a bit further back, but anyway....
I appreciate tremendously the scientific experts, because this is not my field of expertise. I deal with law. I take to heart your last comment that we shouldn't sacrifice the good to try to strive.... It's always better to go for the best, but at the same time, if striving for the best means that we're totally frozen and not acting, there's a big problem. I appreciate my colleague Sean Casey's bill, but since he already had his turn, we will not be debating his bill either. I don't exactly know how we'll be able to move this faster in this legislature, but anyway, we'll do our part.
I'm not a medical specialist, obviously. I'm a lawyer, with all that that means, which sometimes is nothing.
Voices: Oh, oh!
Ms. Françoise Boivin: I listened very hard to the explanations.
I loved your passion, Dr. Cook. I love people who are passionate. I'm passionate about law. You're passionate about mental disorders. I seem to understand that there are so many things that science realizes and learns about every day. I keep hearing the definition of FASD, and I know there are people who say that it doesn't fit the criteria of section 16 of the Criminal Code, but section 16 of the Criminal Code talks about somebody not being responsible because of “a mental disorder”.
I would like the three scientific people who are here today to enlighten us. Why would it not be a possibility that somebody is not guilty because of FASD? Is it possible that there might be cases? I seem to understand from the testimony of the three of you that not everybody is the same, that FASD doesn't have the same impact on everybody. We just heard from Mr. Sapers, l'enquêteur correctionnel, who seemed to say that it's not advancing anywhere, that nobody seems to be even talking about it in courts so our jails are full of people with it.
What can we do? Why isn't it subject to section 16 of the Criminal Code?
Dr. Gail Andrew:
Yes. I've been very fortunate to work with the Yukon government on this particular project. There is a project within the jail itself to provide diagnostic assessment of individuals. It's not mandatory so we do get their consent.
We're looking at actually validating some screening tools that could potentially be very useful across all of the justice systems to identify individuals who may have an FASD. We're looking at their brain profiles in detail. We're looking at additional substance abuse issues, mental health issues, and we're looking at recommendations post-release from serving their sentence. We're looking at what their brain profile tells us that we need to put in place to support that individual after they leave so they don't go through that revolving door.
It's an in-depth study. There is a service component. We're helping these individuals, but we're also collecting valuable data that will give us the profile of individuals who are currently in the justice system.
The Yukon has also just established an adult clinic where they are going to be seeing individuals, hopefully, before they ever set foot in the justice system. With this diagnostic information that will be strength and challenge based, we can look at what are the wraparound support systems in the community that individuals will need to prevent them from ever encountering the law, such as housing, community participation, and what they need in terms of funding so they aren't hungry and homeless.
We have learned through the literature that there is importance in trusting relationships and mentors. That's where the communities in the Yukon are really grasping this big picture of what we need to do, not just for diagnoses but the bigger piece of prevention.
I'm the clinical consultant. I mentioned I do a lot of training and teaching. I've been involved in training both of those teams, and via Telehealth I am their clinical consultant in helping interpret the brain dysfunction.
Mr. David Wilks:
Thank you, and thanks to the guests today.
My question is going to be more on the criminal side of it, because that's what I'm used to. I just wanted to touch a bit on NCR, section 16, that we seem to have latched onto a little bit. The challenge with NCR is in regard to how far down the Criminal Code you go. NCR is normally reserved for the gravest of the grave. It's not reserved for shoplifting. It's not reserved for impaired driving. The judge can deal with those through various different ways of sentencing, if they so choose. I've never seen an NCR on shoplifting or impaired driving, and I don't know if I ever will. I think we may be looking at something that doesn't really apply unless it's the gravest of the grave.
The other issue that I wanted to get to is section 13 of the code, which we don't talk about much, which states that no person shall be convicted of an offence in respect of an act or omission on his or her part while that person is under the age of twelve years.
I bring this to each one of you to give me a brief answer. As a police officer I dealt with the same 10-year-old over and over, knowing full well that there can be no criminal involvement whatsoever. The option for the police officer is to turn that child over to social services. That's really the only option they have, so that child is turned over to social services. The police officer knows that there's something going on there. The police officer also suggests to social services that the child should probably not go back into his or her home environment. The challenge is that the parents may be part of the problem, but there needs to be some form of investigation to do that. Then social services turns around and says they don't have the authority to do that, that their job is to integrate the child back into the family.
There is the cycle, until the child becomes 12, when the police can actually do something about it criminally. It seems to be the catch here that until the child is 12, nothing can be done. Once the child is 12, if they've been identified with FASD, as all of us in this room would probably agree, it's too late. They've now had to enter into the criminal justice system, whether we like it or not.
My question is to each one of you. We've all identified what the factors are for FASD. We've all identified what could lead to it. How do we intervene at a young age so that they don't get to the criminal stage?
I'll start with Dr. Popova, and go to Dr. Andrew, and then Dr. Cook.