Private members bill aims to modify Canadian corrections stance vis a vis defendants with FASD

December 6, 2016

Kids Brain Health has engaged with parliamentarians and submitted a letter in support of Bill C-235 an Act to Amend the Criminal Code and the Corrections and Conditional Release Act - fetal alcohol disorder that was debated Dec. 6 and will be subject to a free vote scheduled for Dec. 13.

In the meantime, MPs are reflecting on the legal and charter implications of Bill C-235. A previous effort by former Yukon MP Ryan Leef to enshrine consideration of the impairments in judgement and impulsivity that can affect people with prenatal exposure to alcohol was tabled and failed to proceed. Leef's successor, the Hon. Larry Bagnell (L-Yukon), has picked up the cause and rallied national support for a new version of the bill, with similar objectives.

Aware that many private members bills founder without becoming law, Dr. Daniel Goldowitz, scientific director of Kids Brain Health, encouraged Mr. Bagnell, saying "we would like you to know, even if the Bill does not make it, that the awareness that your efforts have raised will create some very important waves of change that will ripple thru the justice, social and health-delivery systems. Huge congratulations on your efforts that have mobilized folks like us to make a difference."

A message concerning Bill C-235 sent by Dr. Goldowitz and Executive Director Tom Philpott to all members of parliament this week follows:

A letter in support of addressing FASD in the criminal justice system.

In light of the current debate concerning Bill C-235 (An Act to amend the Criminal Code and the Corrections and Conditional Release Act - fetal alcohol disorder), the undersigned urge strong support for the second reading of this Private Members’ Bill and its referral to committee for study.

Overview of FASD:
An overwhelming body of evidence has demonstrated that the brain injury caused by prenatal alcohol exposure results in multiple behavioural and functional deficits that persist across the lifespan. Affected youth and adults have difficulty in nearly every aspect of their behaviour, from paying attention, learning and remembering things, to applying what they’ve learned to everyday experiences, while also controlling their emotions and urges.

What do these deficits mean in real life terms? Cindy, 15, is in custody after pleading guilty to stealing and aggravated burglary. Removed from her home at the age of 12 months where alcohol was fueling domestic violence and neglect, she’s been raised in a caring environment by an older half-sibling. Cindy came out of her home with lasting damage. Her developmental delays include a severe language impairment: Cindy can only understand short sentences with a single concept presented using simple words.

She has trouble executing tasks or instructions from memory. Despite these struggles, Cindy received no educational support. Her school life has been chaotic. Bullied and isolated, she is easily led by other troubled youth who take advantage of her poor judgement and impulse control. Recently she started smoking marijuana every day. It helps push down her feelings of anxiousness, depression and shame. It also makes her more oppositional and aggressive, and she hasn’t been sleeping or eating much. Although Cindy is not her real name, her story is real. And her collision with the law in mid-October is her latest encounter with a system she doesn’t understand.

Implications of Fetal Alcohol Exposure in the Justice System:
Between 10 to 23 percent of the people in correction and forensic settings have FASD. Over the past several years, there have been multiple calls for recognition of the issue of FASD within the justice system, and the need to address individuals affected by it. Significantly, several studies have suggested that a disproportionate number of indigenous persons in incarcerated settings have a diagnosis of FASD or are suspected of having FASD.

Although prenatal alcohol exposure is the leading known cause of intellectual disability, most individuals with FASD are not intellectually disabled. In fact, like Cindy’s, most IQs in this population fall in the low average to borderline range, and they often show “apparent competence” through their use of language, despite communication deficits. Since FASD is a “hidden disability”, a brain injury existing in an individual who outwardly appears normal, and IQ alone does not reveal the profound impairments experienced by these individuals, decision making that affects interventions for this population requires two things from professionals:

1) ability to detect and understand the types of behaviour that stem from brain damage for each affected individual, and

2) appreciation for the critical importance of a structured, stable social environment.

Evidence suggests that individuals with FASD may have greater difficulty understanding and appreciating their rights on arrest, and participating in a meaningful fashion during the course of adjudication. Memory deficits like Cindy’s place people with FASD at a disadvantage when they try to explain their behaviour or give evidence. Their stories may change, not because they are telling lies, but because their memory recall is not good. Compounding these problems, a high level of suggestibility means that individuals with FASD can be easily led into trouble with the law, as well as agree with propositions that are put to them by people in authority.

Further, problems in their thinking, reasoning, remembering, and self-regulation, may make it difficult to follow the conditions inherent in standard court supervision orders, which may result in unnecessarily high rates of administration of justice related charges. All these factors, along with language difficulties, inevitably create problems for people with FASD in their dealings with authority figures, in securing adequate legal representation and in comprehending the court process. And their “apparent competence” makes it unusually difficult for judges to execute on the intent of the lawmakers.

National and International Response to the Problem of FASD in the Justice System:
In 2010, and again in 2013, the Canadian Bar Association put forward a resolution calling for “flexibility for the Court as to confirmation of maternal use of alcohol during pregnancy, an amendment of the Canadian Criminal Code to allow the Court to order an FASD assessment if the disability is suspected, considering a diagnosis of FASD a mitigating factor in sentencing, authorizing the Court to approve an external support plan which can continue after the probationer's period of supervision has ended and, finally, calling for changes in the law which will require the Correctional Service of Canada to accommodate while incarcerated those inmates with a diagnosis of FASD or who are thought to have FASD.”

In 2012 the American Bar Association proposed a similar resolution calling for increased awareness and recognition of the challenges faced by individuals with FASD in the criminal justice system, and specifically called for “the passage of laws, and adoption of policies at all levels of government, that acknowledge and treat the effects of prenatal alcohol exposure and better assist individuals with FASD.”

These recommendations were further underscored following a national Consensus Development Conference concerning legal issues and FASD in Canada. Leading experts provided testimony ( and a panel of experts made several key recommendations for steps to address the issue. In testimony before the Education and Health Standing Committee of the Parliament of Australia in 2012, Wayne Martin, Chief Justice of Western Australia, made the following comments with respect to “the significant overrepresentation of people suffering from FASD within our [Western Australia’s] court system.”

According to Chief Justice Martin, “Not only are such people more likely to commit offences but they are also more likely to be apprehended, they are more likely to be refused bail, they are more likely to be convicted and, if convicted, they are more likely to be sentenced to a term of imprisonment, which they are likely to do harder than other prisoners.” Further, Chief Justice Martin went on state that individuals with FASD “are, I think, likely to be predisposed to offending behaviour, and they are likely to be significantly disadvantaged at virtually every point in the criminal justice system.”

Steps forward in Australia include referral of offenders for assessment before sentencing. Following her arrest, Cindy met in late November with a team that included a developmental pediatrician, a clinical psychologist and a speech language pathologist. This was the first formal developmental assessment 15-year-old Cindy has ever received, despite her history of difficulty at school.

Assessment, which clearly describes the capabilities and functional deficits of the individual, and sets out treatment recommendations, is only a first step, and needs to be incorporated into a plan integrated and coordinated across multiple systems of care in order to:

• support the individual while they are incarcerated
• ensure that there are supports within the community to help that individual on release, and 
• re-integrate youth into the educational system.

Canada has an opportunity to provide leadership on an issue that affects populations and governments throughout the western world. It is generally understood that equality and fairness are fundamental concepts underlying our justice system. However, individuals with FASD are at distinct and identifiable disadvantage in the justice environment, and how the justice system identifies and responds to FASD has significant impact on the outcomes for people affected by FASD, their families and the broader community. The high rates of recidivism in this population are a clear indicator that our current system is failing. The lack of appropriate services in both health and justice streams compounds the problem and contributes to entrenched justice system involvement for individuals with FASD. Change is needed; change is called for. The individual with FASD is not going to change, which means that we must change our approach to best serve the needs of everyone impacted by FASD.

We the undersigned therefore urge strong support for the second reading of Private Members’ Bill C-235 and its referral to committee for study, necessary precursors toward ensuring appropriate response to individuals with FASD within the Canadian justice system.

Yours sincerely,

Dr. Daniel Goldowitz

Dr. James Reynolds and colleagues