JUST Committee Report

Liberal Supplemental:
Fetal Alcohol Spectrum Disorders and Criminal Justice

1.            Bill C-583 was a private member ’s bill introduced by Ryan Leef, the Conservative MP for the Yukon. C-583 proposed two changes to the Criminal Code: (1) enabling the courts to assess whether an accused has a form of fetal alcohol spectrum disorder (FASD); and (2) making FASD a mitigating factor in sentencing where it impaired the offender’s behavioural control. C-583 had significant support across party lines, including the Liberal Party.

2.            On November 26, 2014, Mr. Leef unexpectedly withdrew C-583 at second reading in the House, referring its contents to the Committee for study. Mr. Leef told the Committee that he did so because he “didn’t see [he] was going to have the time to get it through with the time [he] had left.” The time we spent on this study could have been spent on reviewing C-583 in earnest, and many bills have passed this Parliament in less time than Mr. Leef’s bill required. It was disappointing that Mr. Leef withdrew C-583 under apparent Government pressure; the bill would have materially improved our criminal justice system.   

3.            It appears that the Conservatives agreed to this study to prevent the House from voting on whether FASD should be a mitigating factor in criminal sentencing. This conclusion follows from the Conservative-controlled Committee ’s failure to recommend the two legal reforms proposed by Bill C-583: (1) a court power to assess FASD; and (2) the introduction of a mitigating factor in sentencing. The evidence we heard at Committee overwhelmingly supported making these two changes to the Criminal Code; yet the report omits such recommendations. The Conservatives’ maneuver on FASD was cynical – using a disingenuous study to obstruct a dialogue on legally meaningful legislation. The tactic was a moral failure that will especially harm northern communities, which are disproportionately affected by FASD as a result of historic and ongoing systemic injustices.

4.            The study ’s evidence established that FASD can physiologically impair a person’s ability to make judgements, control or modify their behaviour, and foresee and understand the consequences of their actions. The evidence also established that an FASD-affected offender could be less receptive, or even immune, to the deterrent effects of imprisonment. Both of these findings entail that the courts could better serve the interests of justice with the two measures proposed by C-583: (1) the power to assess individuals for FASD; and (2) the statutory authorization to tailor sentences to fit the crimes of FASD-affected individuals. To effectively prevent crime, the evidence also established that Canadian society requires a third measure: that FASD-affected individuals have access to support programs in their communities and while incarcerated.

5.            The Canadian Bar Association (CBA) made these three proposals in its 2013 resolution “Accommodating the Disability of FASD to Improve Access to Justice.” In response to Mr. Leef’s withdrawal of C-583, and to more fulsomely capture the CBA’s proposals, I introduced Bill C-656 on March 10, 2015. C-656 requires the Correctional Service of Canada to provide programs designed to address the special requirements or limitations of persons suffering from FASD. It was important to Liberals that a meaningful piece of legislation be placed on the Order Paper for Parliament’s consideration. At Committee, Mr. Leef pledged to support C-656. I appreciate his support, but would have preferred him to follow through with his own bill.