JUST Committee Report

Supplementary report of the New Democratic Party on the study of the Standing Committee on Justice and Human Rights: Study on the Subject Matter of Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder).

Ève Péclet, MP for La Pointe-de-l’Île
Françoise Boivin, MP for Gatineau
Jean Crowder, MP for Nanaimo-Cowichan

The focus of the study by the Standing Committee on Justice and Human Rights was the subject matter set out in Bill C‑583, An Act to amend the Criminal Code (fetal alcohol syndrome disorder (hereafter “FASD”)). The New Democratic Party supports the Committee’s final report but cannot remain silent on certain aspects of major importance that unfortunately are not reflected in the recommendations.

We heard from presenters about the problems associated with FASD in the prison and legal system in general. All of the presenters were clear in stating that the justice system has significant shortcomings in terms of evaluating and diagnosing FASD among accused persons. In order to fill this legal vacuum and avoid injustices, it is essential that judges be given the option of ordering an evaluation of an accused if they deem it necessary. The experts also agree that the diversion of people suffering from FASD and/or other cognitive or functional deficiencies must be a priority given the current state of affairs. We note that certain presenters, notably the Attorneys General for British Columbia and Saskatchewan and the Canadian Academy of Psychiatry and the Law, mentioned that FASD should not be the only disorder recognized under the Criminal Code because it would lead to discrimination against people suffering from other disorders, other cognitive or functional deficiencies or a developmental delay in the Canadian justice system.

The New Democratic Party therefore recommends that:

• The Criminal Code be amended to allow the court to require, at any step in the proceedings, that the accused person be evaluated by one or more competent persons to determine if he/she is suffering from a mental disorder, other cognitive or functional deficiencies or a developmental delay and, if that is the case, to identify the degree of seriousness of the disorder.
• The Criminal Code be amended to provide that mental disorders, other cognitive or functional deficiencies or a developmental delay constitute a mitigating circumstance in determining the sentence in cases where it has been shown that they contributed to the perpetration of the offence.
• The necessary resources for prevention and for diversion of persons with FASD, other cognitive or functional deficiencies or a developmental delay be increased and priority be given to treatment and rehabilitation so that the courts have a viable alternative to incarceration.   

If the government recognizes the importance of detecting FASD when inmates are admitted to federal correctional institutions (Recommendation 4), it must not ignore the importance of providing programs adapted to the needs of FASD victims. Many presenters showed that conventional programs are not appropriate for this vulnerable population and that, unfortunately, FASD victims do not receive the care required while incarcerated.

The New Democratic Party therefore recommends, as a complement to Recommendation 4:

• That the Government of Canada work with the Correctional Service of Canada to introduce programs adapted to victims of FASD who receive prison sentences of two years or more;
• That the Government of Canada work with Health Canada and the Correctional Service of Canada to support the sharing of research and information on FASD to determine best practices in the area of detection and reintegration and rehabilitation programs.

Like the presenters who appeared before the committee, the New Democratic Party believes that it is essential to focus on prevention in order to avoid prosecution of FASD victims. Many presenters noted that there is a flagrant lack of access to diagnostic services and that the vast majority of FASD victims will never be diagnosed. As a result, they will never receive the necessary care and risk ending up back in the justice system.

The New Democratic Party recommends that:

• The Government of Canada work with the provinces and territories to improve access to FASD diagnostic and evaluation services, notably by encouraging the creation of new evaluation clinics and supporting the establishment of a network of appropriate support.