While there is no conclusive data on the prevalence of FASD in the Canadian criminal justice system, studies have shown that people with FASD are over-represented in the system, including the prisons and penitentiaries. This chapter presents the information received by the Committee regarding FASD’s impact on the criminal justice system and how those with FASD interact with the system as accused, victims and witnesses.

3.1 FASD AND THE CRIMINAL JUSTICE SYSTEM

[The Fetal Alcohol Syndrome Society of Yukon] feels strongly about the need for special consideration for people with FASD who are involved in the justice system as victims, witnesses, and offenders, and sometimes in more than one role at a time.[80]

This excerpt from the testimony of the Executive Director of the Fetal Alcohol Syndrome Society of Yukon sums up the feelings shared by other witnesses regarding the manner in which people with FASD should be treated by participants in the criminal justice system, including police officers, prosecutors, defence attorneys, judges, correctional and probation officers or parole board members.

3.1.1 Prevalence of FASD in the Justice System

There is still very little empirical data on FASD’s impact on the criminal justice system. However, studies show that “individuals with FASD have a disproportionate level of contact with the justice system in which involvement in the justice system can be as a victim, witness or offender.”[81] The Committee was told that 76% of the 37 clients monitored by the Fetal Alcohol Syndrome Society of Yukon had been involved in the justice system.[82] Other studies estimate that close to 60% of individuals with FASD have been in trouble with the law.[83] According to studies of young offenders, young people with FASD have received criminal charges – and a greater number of these charges – earlier in their lives than young offenders without FASD.[84] Various factors may explain why those with FASD reoffend more frequently, such as mental health problems and a general inability to learn from past experience.[85]

During her appearance, Wenda Bradley told the Committee that “there are many people within our society who are affected by FASD but who have not been recognized and who keep circling in and out of the justice system as well as many other systems within our society.”[86]

Witnesses highlighted the difficulty for the criminal justice system to identify people with FASD and address their needs appropriately. Most FASD sufferers go unrecognized, as Jonathan Rudin explained to the Committee:

The difficulty and the challenge for the justice system is that in court the FASD-affected individual looks like anybody else.… If you walk into court with a cane and dark glasses, we know you're blind and we take that into account. FASD is largely an invisible disability and that is why it's so important that we find ways of addressing it in criminal justice. Failing to do so means that we miss these individuals and we don't sentence them properly.[87]

Witnesses also stated very clearly that people with FASD are over-represented in the criminal justice system because they suffer from permanent brain injury as a result of FASD. These serious dysfunctions force us to examine the premise underlying the criminal justice system. According to Rodney Snow:

[C]riminal law assumes that individuals make informed choices, that they decide to commit crimes, and that they learn from their own behaviour and the behaviour of others. Fourth, these assumptions are often not valid for individuals with FASD, so our criminal justice system fails them and it fails us.[88]

3.1.2 Involvement in the Criminal Justice System as a Victim or Witness

Based on the testimony received, there is no question that people with FASD are at greater risk of being the victim of an offence or a witness to one. For most of these people, the criminal justice system is complicated and intimidating. It is easy to see why such individuals could have trouble understanding the legal process and could require greater support. As Professor Pei noted in her brief, “the neurocognitive, adaptive, and social difficulties associated with FASD may influence an affected individual’s ability to navigate the legal process.”[89]

Elspeth Ross, the Facilitator with the Fetal Alcohol Spectrum Disorder Group of Ottawa, described the difficult experience of one young victim suffering from FASD.

One mother reports that her son was assaulted and subsequently appeared as a witness. One day on the stand was a gruelling process for someone easily confused. The accused got off and now the young man has no faith in the system for protection, and is marked for daring to testify.[90]

The Committee heard that all participants in the criminal justice system must be made aware of FASD in order to facilitate access to justice and increase confidence in the system. They must also be able to recognize the special needs of those affected by FASD so that they can support them appropriately throughout the criminal process.

In its brief, the Canada FASD Research Network stated that there are “examples of great work that court workers are doing to best prepare their clients who are cognitively impaired to be sure they are the best witness possible on the stand.” The Network believes this support is vital to ensuring full participation by those with FASD:

In the absence of supports, people with FASD can experience a lack of meaningful access to or participation in the justice system as prosecutors, judges or juries often dismiss what appear to be “unreliable” witnesses (that mix up dates, that can’t recall events, etc.).[91]

3.1.3 Involvement in the Criminal Justice System as an Accused

Professor Pei cited research showing that people with FASD who are charged with criminal offences often have difficulty understanding arrest, interrogation and trial processes.[92] These people may also “be more inclined to give false confessions or false testimonies”[93] and “may waive their rights or take responsibility for crimes of others.”[94]

Studies of young offenders show that punishment alone does not reduce criminal recidivism. According to Professor Pei, punishment that does not include intervention tailored to the offender’s needs could actually increase recidivism.[95] During his appearance before the Committee, the Correctional Investigator warned of the undesired effects the criminal justice system could have on certain individuals with FASD:

The response of the criminal justice system may, in fact, exacerbate individual difficulties associated with fetal alcohol spectrum disorder. For example, sending an FASD-affected person to jail to “learn a lesson” may be an exercise in futility. A sentence founded on specific or general deterrence is not likely to be meaningful for an FASD person.[96]

Research into the treatment and management of offenders provides vital information on the type of intervention that works best for people with FASD. During her appearance, Professor Pei focused on the risk-needs-responsivity (RNR) model, which has shown promise in reducing recidivism among FASD sufferers and is the basis for treatment by Correctional Service Canada, according to the Executive Director and General Counsel of the Office of the Correctional Investigator.[97] The RNR model tailors treatment and intervention according to the following three principles:

• Risk – the intensity of the treatment and intervention must correspond to the person’s level of risk. More intensive treatment should be given to higher-risk offenders and less intensive treatment to those with a lower risk of reoffending.
• Needs – treatment and intervention must target the risk factors and needs that led to the person’s criminal behaviour or that drive it (criminogenic needs must be targeted).
• Responsivity – treatment and intervention must be tailored to the person’s style and mode of learning.[98]

The Committee was told that when RNR is implemented with fidelity, studies show that it reduces recidivism by 35%.[99] When RNR principles are not followed, however, not only is the intervention ineffective but it could actually be harmful to outcomes.[100] As Professor Pei explained in her brief:

[F]idelity in the implementation of this model is of critical importance, not only to maximize positive outcomes but also to minimize the potential of utilizing strategies that could unintentionally increase the possibility of criminal recidivism. This is particularly true for complex populations, such as individuals with an FASD, whose needs may be unique, and sentencing and intervention responses may need to be modified in light of the unique pattern of cognitive diversity present for the individual.[101]

One of the difficulties in dealing with those affected by FASD is that it is hard to properly assess their level of risk. As Professor Pei explained, people with FASD may look like high-risk offenders, but an in-depth assessment generally reveals that they are lower risk. Professor Pei is concerned by this tendency to over-estimate the risk posed by FASD offenders and she emphasized that certain sentences and treatment approaches may cause considerable damage and encourage recidivism.[102] To demonstrate the importance of tailoring interventions to the needs of FASD offenders, Professor Pei gave an example of a person with FASD who completely changed his behaviour after receiving the proper treatment based on a detailed cognitive assessment.[103]

3.2 FASD AND THE CORRECTIONAL SYSTEM

3.2.1 Prevalence of FASD in Prisons and Penitentiaries

As the Correctional Investigator of Canada told the Committee, it is difficult to reliably determine the prevalence of FASD in Canada’s correctional institutions because there is significant variation in methods of case identification and diagnosis. Studies of offender populations indicate prevalence rates of 10% to 25%.[104] While there is no conclusive evidence on the prevalence of FASD in Canadian prisons and penitentiaries, a 2011 study by Correctional Service Canada,[105] designed to test a screening tool for FASD and determine the prevalence of FASD among a sample of male offenders recently admitted to a medium-security penitentiary in Manitoba, showed that 10% of them had FASD, while “15% … met some of the diagnostic criteria, but were missing information critical to making or ruling out a positive diagnosis.”[106] According to the study, the rate of FASD is at least 10 times higher in the federal correctional population than in the general population. The study also identified neuropsychological deficits that were unrelated to fetal alcohol exposure in 45% of the participants. Significantly, “none of the offenders diagnosed in this research study had been previously identified as being FASD-affected.”[107]

Based on Canadian data, researchers have estimated that young people with FASD are 19 times more likely to be incarcerated than other young people in a given year.[108] Dr. Popova, one of the study’s authors, told the Committee that the prevalence of FASD among incarcerated youth ranged from 11% to 23%.

During her testimony, Wenda Bradley informed the Committee of a study launched by the Yukon government in 2014 to determine the prevalence of FASD in the territory’s correctional system.[109] According to Dr. Andrew, who also discussed the study with the Committee, assessing the inmates who agree to participate in the study will help to create a profile of FASD inmates and the services available to them, and evaluate the effectiveness of various screening tools. The results of this study are greatly anticipated.

3.2.2 Identification of offenders with FASD by Correctional Service Canada

The 2011 study by Correctional Service Canada concluded as follows:

There is a population ... within Correctional Service Canada who are affected by FASD who are currently not being recognized upon intake, and are not being offered the types of services or programs that meet their unique needs.... Screening to identify those at risk for an FASD is necessary and has been demonstrated as feasible in a correctional context.[110]

The Correctional Investigator informed the Committee that Correctional Service Canada “still does not routinely screen for FAS disorder among newly admitted.” According to the Correctional Investigator, most offenders arrive at prison undiagnosed and remain that way. As a result, this vulnerable group does not receive the appropriate care and treatment in a system that is ill-prepared to receive them:

A correctional system that relies on obeying orders and rules that incentivize appropriate conduct and requires an offender to demonstrate behavioural progress is not particularly accommodating to persons afflicted with FASD. Similarly, a parole and pardon system that is predicated on the need and capacity to express remorse and learn from past mistakes is also not well-suited to FASD-affected persons.…

Prisons are really based on people being able to obey rules, follow instructions, and if you don't, you again bring negative attention to yourself. These are the individuals who are constantly running afoul of institutional rules and regulations, being charged with both minor and major infractions of institutional rules, perhaps receiving punitive sanctions inside because they've been charged with a major infraction where they've had to appear before an independent chairperson. These are folks who don't fare well in front of parole boards. They tend to spend longer time in higher security levels, and they tend to attract segregation placements, etc., so their correctional outcomes are compromised. That's a burden on the system, as well as being a burden on them. They're also more difficult to manage and more expensive for the system.[111]

The lack of FASD identification upon admittance to custody is a concern because, as Professor Pei explained, persons with FASD “may become vulnerable targets for victimization, may end up learning more criminal acts without understanding why they were incarcerated in the first place, and may be unable to conform to the custodial environment.”[112] 

3.2.3 How Offenders with FASD Adjust to Incarceration

A study conducted in 2014 by Correctional Service Canada showed that offenders with FASD have greater difficulty adjusting to incarceration than other offenders. The study’s findings corroborated other research which showed that people with FASD experience poor social adjustment in various contexts.[113]

As the Correctional Investigator told the Committee, the study also showed that offenders with FASD were more likely to be involved in violent institutional incidents, both as instigators and as victims. They were also more likely to incur institutional charges. Lastly, they were much less likely to complete their correctional programs.[114]

During his appearance, lawyer Jonathan Rudin stated that generally, people with FASD do not work well in groups because they have difficulty interpreting social cues. He believes that cognitive behavioural therapy, which is the treatment available to many people in the correctional system, is not well suited to offenders affected by FASD.[115]

In its 2013 resolution on FASD and the criminal justice system, the Canadian Bar Association recommended that the federal government amend the Corrections and Conditional Release Act “to expressly require Correctional Service Canada to accommodate FASD as a disability when providing correctional services to inmates who have or likely have FASD.”[116]

As the Correctional Investigator told the Committee, Canadian penitentiaries currently have no correctional programs that are specially designed for FASD offenders. Although the Correctional Service does its best to tailor interventions to the needs of these clients, service delivery seems to be hampered by a shortage of resources. The Correctional Service does not seem to always have enough resources to implement adaptations that meet the special needs of all groups in the prison population – a population that presents complex challenges, as Ivan Zinger told the Committee:

[N]ow we have over 60% of the inmate population requiring psychological or psychiatric services.

On average, the educational attainment of offenders is a grade 8 education. We have 75% of the offenders coming into the system with substance abuse issues. About two-thirds of them were intoxicated at the time of their index offence. Then you add the 30% who have hepatitis C and the almost 5% who have HIV. Almost a quarter of the inmate population is aboriginal. Almost 10% of them are black offenders.

It becomes very difficult for Correctional Service Canada to try to address the employment needs, the mental health needs, and the vocational needs. It's a really big challenge, and I would certainly say that resources absolutely sometimes can be a part of the challenge here.[117]

The message provided by the Office of the Correctional Investigator was the following: given that “[w]e cannot ask correctional services to try to solve a problem that should have been settled in the community, with more adequate screening services,”[118] we must provide community support to prevent people with FASD from getting into trouble with the justice system, and we must introduce diversion programs.[119]