Bill C-235: An Act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder)

Criminal Code Corrections and Conditional Release Act First Session, Forty-second Parliament, 64-65 Elizabeth II, 2015-2016 HOUSE OF COMMONS OF CANADA BILL C-235 An Act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder) FIRST READING, FEBRUARY 25, 2016 Mr. Bagnell 421177 SUMMARY This enactment amends the Criminal Code to establish a procedure for assessing individuals who are involved in the criminal justice system and who may suffer from a fetal alcohol disorder. It requires the court to consider, as a mitigating factor in sentencing, a determination that the offender suffers from a fetal alcohol disorder. The enactment also requires the court to make orders to require individuals who are determined to suffer from a fetal alcohol disorder to follow an external support plan to ensure that they receive the necessary support to facilitate their successful reintegration into society. Lastly, it makes consequential amendments to the Corrections and Conditional Release Act. Available on the Parliament of Canada Web Site at the following address: http://www.parl.gc.ca 1st Session, 42nd Parliament 64-65 Elizabeth II, 2015-2016 HOUSE OF COMMONS OF CANADA BILL C-235 An Act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder) Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows: R.‍S.‍, c. C-46 Criminal Code 1 Section 2 of the Criminal Code is amended by adding the following in alphabetical order: fetal alcohol disorder refers to any neurodevelopmental disorder that is associated with prenatal alcohol exposure — the spectrum of these disorders being commonly known as fetal alcohol spectrum disorder (FASD) — and that is characterized by permanent organic brain injury and central nervous system damage that result in a pattern of permanent birth defects, the symptoms of which include (a) impaired mental functioning, (b) poor executive functioning, (c) memory problems, (d) impaired judgment, (e) impaired ability to control impulse behaviour, and (f) impaired ability to understand the consequences of one’s actions; (troubles causés par l’alcoolisation foetale) 2 The Act is amended by adding the following after section 672: Part XX.‍01 Fetal Alcohol Disorder Interpretation Definitions 672.‍01 The following definitions apply in this Part. accused includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered. (accusé) assessment means a fetal alcohol disorder assessment. (évaluation) court includes a summary conviction court as defined in section 785, a judge, a justice and a judge of the court of appeal as defined in section 673. (tribunal) qualified person means a person duly qualified by provincial law to practise medicine or psychiatry or to carry out psychological examinations or assessments, as the circumstances require, or, if no such law exists, a person who is, in the opinion of the court, so qualified, and includes a person or a member of a class of persons designated by the lieutenant governor in council of a province or his or her delegate. (personne compétente) Assessment Order Fetal alcohol disorder assessment 672.‍02 (1) A court may, at any stage of proceedings against an accused, by order require that the accused be assessed by a qualified person, alone or with the input of other qualified persons, to determine whether the accused suffers from a fetal alcohol disorder and, if so, to indicate the relative severity of the disorder. The assessment may be ordered (a) on application of the accused; (b) on application of the prosecutor if the accused raised the issue of a possible fetal alcohol disorder or if the prosecutor satisfies the court that there are reasonable grounds to believe that the accused suffers from a fetal alcohol disorder; or (c) by the court on its own motion, if the court believes a medical, psychological or psychiatric assessment in respect of the accused is necessary for a purpose mentioned in paragraphs (2)‍(a) to (d) and the court has reasonable grounds to believe that the accused may be suffering from a fetal alcohol disorder. Purpose of assessment (2) A court may make an order under subsection (1) in respect of an accused for the purpose of (a) considering an application under section 515 (judicial interim release); (b) making or reviewing a sentence; (c) setting conditions under subsection 105(1) of the Youth Criminal Justice Act (conditional supervision); or (d) making an order under subsection 109(2) of the Youth Criminal Justice Act (conditional supervision). Expeditious assessment (3) A qualified person shall conduct the assessment as soon as practicable and report the results of the assessment in writing to the court. Copies of reports to accused and prosecutor (4) Copies of any report filed with the court shall be provided without delay to the prosecutor, the accused and any counsel representing the accused. Evidence may be presumed 672.‍03 If the court is satisfied that there is good reason the evidence of alcohol consumption by the mother of the accused while she was pregnant with him or her is not available, such as in circumstances in which the mother has died or cannot be identified or found, the cause of the disorder of the accused may be presumed to be the maternal consumption of alcohol. Custody for assessment 672.‍04 (1) Subject to subsection (2) and section 672.‍05, a court may, for the purpose of an assessment under section 672.‍02, remand an accused to any custody that it directs for a period not exceeding 30 days. Grounds for remanding (2) An accused shall not be remanded in custody in accordance with an order made under subsection (1) unless (a) the court is satisfied that on the evidence custody is necessary to conduct an assessment of the accused; or (b) the accused is required to be detained in custody in respect of any other matter or by virtue of any provision of this Act. Report of qualified person in writing (3) For the purposes of paragraph (2)‍(a), if the prosecutor and the accused agree, evidence of a qualified person may be received in the form of a report in writing. Application to vary assessment order 672.‍05 At any time while an order made under subsection 672.‍02(1) is in force, a court may, on cause being shown, vary the terms and conditions specified in the order in any manner that the court considers appropriate in the circumstances. Assessment not ordered by court 672.‍06 An assessment made by a qualified person as to whether an accused suffers from a fetal alcohol disorder may be admitted as evidence for a purpose set out in paragraphs 672.‍02(2)‍(a) to (d) even if the assessment was not made as a result of an order by the court under subsection 672.‍02(1). Report to be part of record 672.‍07 A report made following an assessment ordered under subsection 672.‍02(1) or an assessment admitted as evidence under section 672.‍06 forms part of the record of the case in respect of which it was ordered or admitted. Disclosure by qualified person 672.‍08 Despite any other provision of this Act, a qualified person who is of the opinion that an accused held in detention or remanded to custody is likely to endanger his or her own life or safety or to endanger the life of, or cause bodily harm to, another person may immediately so advise any person who has the care and custody of the accused whether or not the same information is contained in a report made following an assessment under subsection 672.‍02(1). Period order is in force 672.‍09 (1) An assessment order made under subsection 672.‍02(1) shall not be in force for more than 30 days, unless a court is satisfied that compelling circumstances exist that warrant a longer period. Extension (2) Subject to subsection (3), a court may extend an assessment order, on its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused. Maximum duration of extension (3) No extension of an assessment order shall exceed 30 days, and the period of the initial order together with all extensions shall not exceed 60 days. 3 The Act is amended by adding the following after section 718.‍2: Presumption 718.‍201 Evidence that an offender suffers from a fetal alcohol disorder shall be deemed to be a mitigating factor if the disorder impairs the offender’s ability (a) to make judgments; (b) to foresee and understand the consequences or risks of his or her actions; or (c) to control impulse behaviour. 4 Section 731 of the Act is amended by adding the following after subsection (2): External support plan (3) Where an offender has been determined to suffer from a fetal alcohol disorder following an assessment referred to in section 672.‍02, the court shall prescribe, as a condition of the probation order, that the offender comply with an external support plan established for him or her by a probation officer that includes any components that the probation officer considers necessary to ensure that the offender has the necessary support to facilitate his or her successful reintegration into society. 1992, c. 20 Corrections and Conditional Release Act 5 Subsection 2(1) of the Corrections and Conditional Release Act is amended by adding the following in alphabetical order: fetal alcohol disorder has the same meaning as in section 2 of the Criminal Code. (troubles causés par l’alcoolisation foetale) 6 Paragraph 4(g) of the Act is replaced by the following: (g) correctional policies, programs and practices respect gender, ethnic, cultural and linguistic differences and are responsive to the special needs of women, aboriginal peoples, persons requiring mental health care, persons suffering from a fetal alcohol disorder or other disability and other groups; 7 Section 77 of the Act is renumbered as subsection 77(1) and is amended by adding the following: Other programs (2) The Service shall also provide programs designed particularly to address the special requirements or limitations of persons requiring mental health care and persons suffering from a fetal alcohol disorder. 8 Subsection 151(3) of the Act is replaced by the following: Respect for diversity (3) Policies adopted under paragraph (2)‍(a) must respect gender, ethnic, cultural and linguistic differences and be responsive to the special needs of women and aboriginal peoples, as well as to the needs of other groups of offenders with special requirements or limitations, including persons requiring mental health care and persons suffering from a fetal alcohol disorder. Published under authority of the Speaker of the House of Commons