Mr. Speaker, I am very honoured to rise on behalf of my colleague, the member for Yukon, on his private member's bill, Bill C-583, An Act to amend the Criminal Code with regard to fetal alcohol spectrum disorder.

Bill C-583 seeks to accomplish three things. First, it seeks to define FASD in a legal context. Second, it would provide the court with the authority to order assessments when there is evidence and belief that an accused has FASD. Finally, it would permit the court to consider FASD to be a mitigating circumstance in the sentencing of an offender if the symptoms of the FASD contributed to the offence.

On that last point, allow me to stress that mitigation is not absolution. It is a reflection that there is diminished responsibility, not absence of responsibility, and it takes into account an explanation for a behaviour, not an excuse. That said, it does recognize the influence a neurological development disorder can have on a person's conduct.

As a retired member of the RCMP, having served for over 20 years, I myself have seen the challenges associated with effective and balanced approaches to public safety and sentencing. Having served in a number of communities across British Columbia, I can say that along with other conditions, FASD is significantly present in the population.

The member for Winnipeg North wondered whether it was one in 100 or even more. I do not know what the numbers are, but I can say from an operational standpoint that it is significant. It is a challenge for police officers across the country to be dealing with it on a daily basis, specifically in the adult community. There are outreaches for youth and young adults in Canada, but we tend to have challenges when it comes to the adult population.

With that in mind, I would like to continue on with what I believe are some of the great opportunities that the member for Yukon has brought forward in his private member's bill.

The Consensus Statement on Legal issues on Fetal Alcohol Spectrum Disorder (FASD) from Edmonton, Alberta, in 2013 explores the implications for the justice system when the needs of FASD-affected individuals go unmanaged in the broader community and ultimately surface in the legal context. It does stress that the needs of the broader society need to be recognized as well, in that while FASD is a possible explanation for behaviour, it is not absolution for misconduct. It states:

At the same time, people who have FASD suffer from neurodevelopmental disorders and, in some cases, serious functional deficiencies that in all fairness must be recognized and taken into account in the administration of justice.

Elsewhere the document states:

The neurodevelopmental deficits associated with FASD present a fundamental challenge to the Canadian criminal justice system,

—especially in the adult system—

which is premised on assumptions that people act in a voluntary manner that is determined by free will and that they can make informed and voluntary choices with respect to both the exercise of their rights and the decision to commit crimes. It is presumed that a person intends the natural consequences of his or her actions, and that, for example, an individual would never make a statement against his or her interest unless it is either true or coerced.The evidence we have heard is compelling that those with FASD are likely to have a diminished capacity to foresee consequences, make reasoned choices or learn from mistakes. Therefore, their actions are likely to clash with assumptions about human behaviour at almost every stage of the justice system.Throughout their lives, individuals with FASD are more likely to be involved in the legal system than individuals without FASD.

One fundamental problem is that FASD represents a broad spectrum of symptoms of greatly varied severity giving rise to a range of disorders/disabilities and, consequently, varying degrees of diminished responsibility and capacity.

While the elements of the neurological damage associated with FASD are well established, their expression and intensity vary from one individual to another. In the absence of a simplified method of categorization, the legal system must adapt to individualized, context-specific diagnoses, and formulate manageable criteria or standards to deal with many different interactions with FASD sufferers.

About 60% of individuals with FASD come into conflict with the law.

The consensus statement continues:

The neurological impairments associated with FASD are likely to collide with the law, which generally assumes a level of intent, foresight and awareness.The evidence shows that, unless diagnosed, those with FASD are likely to be disadvantaged at the point of initial contact with police, in relation to the understanding of legal rights and options, as well as the ability to respond to investigative processes—particularly, interrogations--at the bail stage, the trial stage, and the sentence stage—where it is assumed, by the way of deterrence, that the risk of adverse consequences would lead to avoidance of those consequences—and then, of course, the post-sentencing stage. At each of these stages, it is assumed that offenders are capable of making choices, understanding the consequences of their action, and learning from their mistakes. These assumptions do not accord with what is known about the functional disabilities associated with FASD.

It continues:

Looking at all court cases for 2010/11, the proportion of all youth and all adult court cases involving an “administration of justice” charge as the most serious offence in the prosecution was [21%].We heard evidence that a leading characteristic of people with FASD is an inability to organize their lives, meet deadlines, keep appointments, learn from experience and understand the consequences of failure to do any of these things. Accordingly, what are called “administration of justice” charges in effect criminalize those with FASD by setting the person up for further charges (“the revolving door”).

Elsewhere the document states:

Although courts have recognized FASD as a mental disorder, they have been reluctant to hold that it renders the FASD accused incapable of appreciating the nature and quality of the act or knowing that it is wrong.The availability of a better-tailored defence of diminished responsibility for those with mental disabilities could provide the legal system with more flexibility in dealing with the diverse circumstances of offenders with FASD.Criminal justice is based on the principle that people who offend should be held accountable in proportion to what was done and the offender’s responsibility for the offence. The principles are laid out more explicitly in the YCJA than they are in the Criminal Code. However, it is reasonable that this general principle holds for adults as well as youths.

That is why, as I mentioned earlier, it is recognized more quickly with youth than it is with adults, because we do not recognize the two systems cohesively.

The consensus statement continues:

Proportionality is required for sentencing both in the adult and the youth justice systems.Proportionality is not defined explicitly. It could, however, accommodate various forms of diminished responsibility related to impulsivity and suggestibility associated with FASD. In particular, there is little judicial authority on how the “degree of responsibility of the offender” should be defined for those with disorders like FASD....

In closing, I believe the bill brought forward by the member for Yukon would better advance the criminal justice system and would make sure that those with FASD would be better served in the criminal justice system from here forward.

David Wilks

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