Bill C-583 (Historical)

An Act to amend the Criminal Code (fetal alcohol spectrum disorder)

This enactment amends the Criminal Code to add a definition of “fetal alcohol spectrum disorder” (FASD) and to establish a procedure for assessing individuals who are involved in the criminal justice system and who it is suspected suffer from FASD. It requires the court to consider, as a mitigating factor in sentencing, a determination that the accused suffers from FASD and manifests certain symptoms.

Criminal Code

[Brigitte Sansoucy, NDP, Saint-Hyacinthe—Bagot, QC]

Mr. Speaker, today I am pleased to speak to Bill C-235, an act to amend the Criminal Code and the Corrections and Conditional Release Act (fetal alcohol disorder).

I want to begin by saying that my NDP colleagues and I will support this bill. The NDP would like all parties in the House to work together to adopt this positive and long-overdue reform, which the previous government neglected.

Fetal alcohol disorder can have a range of effects on affected individuals. Those effects may include difficulty reasoning, inability to remember things, and trouble learning from past experiences and not repeating mistakes.

Bill C-235 defines the neurodevelopmental disorders associated with prenatal alcohol exposure. The spectrum of these disorders is commonly known as “fetal alcohol spectrum disorder” or by the acronym FASD, which I will use. This bill would amend the Criminal Code to establish a procedure for assessing individuals who are involved in the criminal justice system and who may suffer from fetal alcohol disorder. It would also include FASD as a mitigating factor in sentencing.

The bill also recognizes FASD as a disability in the federal correctional system. It also requires the courts to order people who have FASD to follow an external support plan so that they receive the support they need for their reintegration into society. It finally makes a consequential amendment to the Corrections and Conditional Release Act.

Bill C-235 is actually is a reintroduction of two past bills to better address the needs of individuals suffering from fetal alcohol syndrome disorder who find themselves in our criminal justice system. In terms of the trial process, this latest version of the bill allows the courts to order an assessment over the objections of the defendant and at any stage of the proceedings. We have supported every past incarnation of this bill, which seeks to better address the needs and circumstances of offenders suffering from fetal alcohol spectrum disorder in the criminal justice system.

In accordance with its order of reference of Wednesday, November 26, 2014, the Standing Committee on Justice and Human Rights studied a previous version of this bill, Bill C-583. The report of that study was tabled in May 2015. The report indicates conclusively that people with fetal alcohol disorder are overrepresented in the penal justice system. According to a study conducted by the Fetal Alcohol Syndrome Society of Yukon, 76% of the target population affected by fetal alcohol disorder had contact with the justice system.

Currently, our justice system does not leave room to take the individual's situation into account or to address it. It is therefore very important to support this bill, which needs to be passed quickly if we are to take people and their particular condition into consideration when we seek justice. We sincerely lament the fact that for years, the Conservatives ignored evidence and used a one-size-fits-all approach to impose mandatory minimum sentences that are costly, ineffective, and even unconstitutional.

The NDP is in favour of a more effective approach that is more suited to the victims. We have a real problem when it comes to identifying this disorder in those who have it. Wenda Bradley, one of the witnesses who appeared before the Standing Committee on Justice and Human Rights, said 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”.

The problem is that this disorder is somewhat invisible. Those who have it look like you and me. However, they have special needs and that is why we must provide them with the appropriate support throughout the entire penal process.

In fact, when he appeared before the same committee, Rodney Snow had this to say:

...criminal 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.

By considering this disorder as a mitigating factor in criminal proceedings, we could better adjust sentences for these individuals. Studies of young offenders indicated, for example, that the sentence alone does not reduce criminal recidivism. On the contrary, it could even encourage it.

The passage of this bill would allow the criminal justice system to adapt sentences for these individuals so that they are as effective as possible. Moreover, a system would have to be put in place to identify children with fetal alcohol syndrome as early as possible.

The data I have collected on children with fetal alcohol syndrome demonstrate the extent of the problem in Canada. In Quebec, one in 128 children are affected by this disorder. In Ontario, one in 156 are affected. In Saskatchewan, it is one in 40. In the Northwest Territories, it is one in 33.

We must not wait until these individuals wind up in court for committing a crime before they are diagnosed with this disorder. An ounce of prevention is worth a pound of cure. Yes, including FASD as a mitigating factor in sentencing is already a big step forward. However, this disorder also carries other consequences. A number of FASD symptoms, such as impulsiveness, make it hard for sufferers to hold down a job or live a stable life, which can lead to poverty and homelessness.

Having spent many years working in community-based organizations, including over 10 years as executive director of Auberge du coeur Le Baluchon, I knew a few young people who had FASD who, as a result of the disorder, had developmental delays and were constantly having problems at school. These young people endure one failure after another, and often they do not even understand why. They think that they are to blame for their problems and that they are inadequate. They often have very low self-esteem, which creates a whole slew of other problems. They will be penalized throughout their lives by the lack of appropriate care and support.

I think that it is critical that the government do more to support other levels of government in order to help people who have FASD and invest in prevention and awareness.

As an NDP member, I support this bill, and I urge all my colleagues in the House to do the same. Let us think of all the young people suffering from FASD and bring in measures that could help them.

Rod Snow, former president of the Canadian Bar Association, agrees that everyone should support this amendment to the Criminal Code and to our correctional system so that they are appropriate and effective when it comes to fighting crime. The old approach is simply not working.

Justice and Human Rights

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, indeed, in response to the 19th report of the Standing Committee on Justice and Human Rights, the official opposition is presenting a supplementary report regarding consideration of Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder).

I quickly want to thank all my committee colleagues, especially the hon. members for Nanaimo—Cowichan and for La Pointe-de-l'Île, who were responsible for this bill on behalf of the team.

Although we, along with the government, support the report, our main regret is that the bill introduced by the hon. member for Yukon was too watered down. We think it is a shame that the government persuaded that member to withdraw his bill, which would have represented a step forward and would really have been more effective than a report with extremely soft recommendations.

I would ask the government to pay particular attention to the recommendations submitted by the official opposition. These recommendations would move things forward much more quickly than the very simplistic recommendations made by the Conservative government members in the committee.

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 18th report of the Standing Committee on Justice and Human Rights in relation to Bill C-35, an act to amend the Criminal Code (law enforcement animals, military animals and service animals).

The committee has studied the bill and has agreed to report it back to the House without amendment.

I also have the honour to present, in both official languages, the 19th report of the Standing Committee on Justice and Human Rights in relation to the study on the subject matter of Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

Pursuant to Standing Order 109, the committee requests that the government table a comprehensive response to this report.

Drug-Free Prisons Act

[Françoise Boivin, NDP, Gatineau, QC]

Mr. Speaker, I have to seize this opportunity. Actually, I have lots to say about the government's silence.

That said, let me first deal with the positive. I want to thank the NDP members on the Standing Committee on Public Safety and National Security, because, especially over these past few months, they have had an enormous amount of work to tackle. I thank the member for Esquimalt—Juan de Fuca, the member for Alfred-Pellan and the member for Compton—Stanstead. I congratulate them on their hard work. I understand the frustration that can set in when you have to deal with bills like Bill C-12.

It can be frustrating to know that, clearly, we could do so much better. It can also be frustrating—as my colleagues have said before me—to see grandiose titles like drug-free prisons act, as we can see written in the bill itself under “Short Title”:

This act may be cited as the drug-free prisons act.

This raises so much hope. People read that and think that that would be wonderful. Then, reality sinks in. After seeing such a grandiose title, I was expecting a rather lengthy, comprehensive bill, since it deals with such a complex issue. Ultimately, with one clause on the bill's short title and just four substantive clauses, the Conservatives are claiming they can eliminate drugs from prisons. This reminds me of the time that they studied the issue of prostitution following the Supreme Court ruling. That bill also had a grandiose title, indicating that, with that bill, the government was going to put an end to prostitution and abolish it in Canada. Well done. There will never be any prostitution ever again. Only, that is not what I am hearing in the street. It remains a thriving industry. It may be done differently, but it still exists.

As I was soaking up my colleagues' speeches—thank goodness they are here to speak in the House—I was reminded of what I dealt with over the past two weeks in my riding. Being in my riding is a much more positive experience than being in the House. Those watching us must be as disheartened as we ourselves can be. Sometimes we get the feeling we are howling in the wilderness, and this is one of those times because we really get the sense that just one side of the House is talking about this, and people are noticing that.

We all know, because lots of people were talking about it, that last week was National Volunteer Week. I made a lot of contacts and met with lots of people in Gatineau who are doing amazing work on all kinds of issues, such as helping people with drug addictions and helping former inmates reintegrate into society.

I sat down with these people and talked to them about the Conservative agenda. I explained to them that I would be giving a speech this week on the fact that the government says it will eradicate drugs from prisons. Mr. Speaker, you cannot imagine how much people laughed at that. They did not take me seriously. They asked me just how the government planned to do that.

I replied by reading clause 2:

If an offender has been granted parole under section 122 or 123 but has not yet been released and the offender fails or refuses to provide a urine sample when demanded to provide one under section 54, or provides under that section a urine sample for which the result of the urinalysis is positive, as that term is defined in the regulations, then the Service shall inform the Board of the failure or refusal or the test result.

They said, “All right, and then what?” I told them about clause 3:

Section 124 of the Act is amended by adding the following after subsection (3):

(3.1) If the Board is informed of the matters under section 123.1 and the offender has still not yet been released, the Board shall cancel the parole if, in its opinion, based on the information received under that section, the criteria set out in paragraphs 102(a) and (b) are no longer met.

They said, “All right, and then what?” I told them about clause 4:

The releasing authority may impose any conditions on the parole, statutory release or unescorted temporary absence of an offender that it considers reasonable and necessary in order to protect society and to facilitate the offender’s successful reintegration into society. For greater certainty, the conditions may include any condition regarding the offender’s use of drugs or alcohol, including in cases when that use has been identified as a risk factor in the offender’s criminal behaviour.

They said, “And then what?” I told them about clause 5:

The Governor in Council may make regulations providing for anything that by this Part is to be provided for by regulation,...

Members will understand that they laughed because they wondered how this would make prisons drug-free. They asked me to explain how that would happen.

They asked me to explain how that would happen. I told them that there was no explanation. This bill does absolutely nothing, aside from cancelling someone's parole. No one can be against virtue, which is why there is unanimity on Bill C-12. However, this government is once again missing an opportunity to do something good.

For four years now, the government has been giving us bills with fancy titles that sound great but actually accomplish very little. I think that people are starting to realize this. The best example may be Bill C-51. All of the polls showed how the New Democratic Party was seen to be on the wrong side of the fence: we supported terrorists, we were not to be taken seriously when it comes to security, and the government was right.

Those who are a bit more timid, such as the third party, the Bloc Québécois and others, jumped on the Conservative bandwagon. Everyone was unanimous because they thought it was the right thing to do. When the members opposite and the third party remain silent on a bill like this, I tell myself that the NDP is doing the right thing. At report stage and third reading, we should have something to say on behalf of our constituents. I am not saying that that is necessary for all bills, but when it comes to a bill about eradicating drugs in prisons, I cannot believe that the members of the House, who represent Canadians, have nothing to say about their respective ridings.

All of us, or almost all of us, have detention centres, prisons or penitentiaries in our ridings. We can talk to our constituents, our street outreach workers, the people who take care of those with drug addictions and those who take care of inmates. If we really want to make our communities safe, we need to know what we are talking about. We have to be able to read a bill to our constituents without having them laugh at us and ask us if we are serious and if we really believe that a bill will solve the problem. Where is the money for rehabilitation? Where is the money for programs? The Conservatives cut that funding over the past few years. We are constantly being told that we cannot be serious.

We are taking a stand. We are doing the work in committee. We are unequivocally telling the government that this does not make sense and that it is ridiculous to insult people by trying to sell them this. I am sure that this afternoon we will see even more rhetoric about what they are doing. I cannot wait to see what kind of budget the government will allocate to public safety and justice. Why? Because I still think—and I will be surprised if the government proves me wrong—that this government spends more on ads saying how wonderful and extraordinary it is than on programs that could help drug addicts in prison. It is one thing to be able to prove that someone consumed drugs, with a blood and urine test, and to cancel that person's parole, but do we simply want to punish that person or do we want to ensure that he will not continue to have drug problems after he is released? That is what we should be looking at.

This government has little interest in such things. That is ironic, because at the Standing Committee on Justice and Human Rights, one of the first bills that came to us from the Conservative benches, Bill C-583, covered the problems related to fetal alcohol spectrum disorder. It was a meaningful bill that showed it was possible to do something other than punish. It looked at a disorder, one from which many people in prisons suffer, and tried to find solutions tailored to their needs and their problems. There was unanimity, which was nice, but what did the government do? It withdrew the bill. It forced the MP who introduced it to withdraw it for further study. We took a close look at it in the time we were given. Everyone knows that the Conservatives do not give us much time for thorough study. The study will probably produce some conclusions. I am eager to see the final recommendations that will be submitted to the House.

Considering our past experiences with our colleagues across the aisle, I would be willing to bet that the recommendations will simply encourage a more thorough study and therefore do absolutely nothing. This is really just like what the Liberals used to do before them. It is mind-boggling how similar they are; there is no difference. It is astounding.

It is extremely frustrating because, actually, what is happening here today is a perfect example of what is leading the people of Gatineau to ask, when I meet them, what the point of Parliament is. People here do not even have five minutes to stand up in the House and at least explain how the four little clauses I read earlier are going to achieve what the title says, that is, ensuring that prisons are drug-free. Instead of telling us how wonderful and perfect they are, the Conservatives could simply tell us how they believe these clauses will be so successful, when everything else has failed. It is very frustrating.

Fortunately, things are balanced in Canada. Our democracy has an executive branch, a legislative branch, and a judicial branch. At present, unfortunately, Canadian democracy has to rely too heavily on the judicial branch to rebalance the principles of law, which those on the Conservative benches should be familiar with. The Conservative MPs all have the advantages of the Department of Justice: they can consult people ad nauseam and get legal opinions from the top legal minds in Canada. They do not even take advantage of that. They keep passing bill after bill that gets hammered in the courts all the way to the Supreme Court.

Some denigrate the Supreme Court by claiming that it is engaging in legislative activism. That is not the case at all. The Supreme Court tells us legislators that we cannot do certain things, and reminds us that there are laws in this country and that we have a Constitution and a Charter of Rights and Freedoms. It tells us that we can go ahead and pass the legislation that we want, that it is our highest prerogative, but that there is still a framework to be respected. If people are not satisfied with this framework, then it is up to us as legislators to change that. However, we have to work within the Charter of Rights and Freedoms and the Constitution. This is not about judicial activism.

I will digress for a moment to talk about Edgar Schmidt, a former public servant who is involved in a case against the Attorney General of Canada that is currently before the Federal Court. He said that he received orders not to follow the charter at all or to just aim for 5%. A 5% chance of winning was enough to move forward. That is ridiculous. This government does not take its role as the executive and as a legislator seriously. That leads to the results we get when we end up before the Supreme Court of Canada.

Bill C-12 will not end up before the Supreme Court of Canada. That is clear. We would not support it if that were the case. Nevertheless, in my opinion, this bill will not accomplish what it is supposed to. Unfortunately, the bill will only delay the action that could be taken to do much better. If only the government would listen to the heartfelt pleas of the people who told us in committee what the government should do instead of cutting rehabilitation and support programs for people with serious drug addictions, then we might achieve better results.

As the Commissioner of Penitentiaries told us, given all the bills with longer and longer mandatory minimum sentences, prisons have no incentive to place these people in rehabilitation programs until just a few years before they are released on parole. Take for example someone who is serving a sentence of seven or 10 years. That individual will not necessarily be placed in a rehabilitation program immediately. The prison might wait until that person has been incarcerated for five years or until he has only one or two years left before he is eligible for parole. What kind of hardened individual have we created in the meantime?

If we claim to want safer communities, what is our responsibility as legislators? When it is time for these people to leave prison, I would like them to be able to reintegrate into society. What will happen if we do nothing to help them? This is not about being a bleeding heart. I would say that there is a certain measure of self-interest. I want to make sure that these people will not be a threat to my family, my friends, my community or me. We must implement the kinds of measures that will achieve these results. This government does not see it like that and, after four years, we are familiar with their approach. We were not born yesterday. This government likes to use grand titles.

This afternoon, we will probably hear about tons of budget measures that earned us the Conservatives' ridicule just for mentioning them. The Conservatives are going to appropriate them to further their interests and to strut around in the next few months, in a manner that I will not even describe, simply to boast about their magnificent agenda, as though this was the best government Canada ever had. They will want to make everyone forget all those years in the past when they were unable to bring forward a balanced budget.

All the Conservatives have done, in fact, like the good economists they are, is to add to the national debt, after everyone had tightened their belts under the Liberal government of the 1990s. That will not stop them from having a splendidly grand title for their budget, as they did for BillC-12.That is unfortunate. I do not know whether this is what the Conservatives are looking for, or whether it just reaches a portion of the population that is on their side. However, even for those who claim they are tough on crime and believe what the government says, I would tell them to go and read the bill. It is worth doing. I was able to read the bill designed to get drugs out of our prisons in exactly one minute. That gives you a good idea.

If someone listening to me believes that Bill C-12 will help solve the problem, I take issue with that. We should talk because, seriously, no one in their right mind will believe that Bill C-12 will help eliminate drugs from prisons. This is what I call misleading the public.

In my opinion, it is shameful for a government that otherwise proclaims itself to be serious to think it will succeed in slipping this “quick fix” past Canadians. Again, it is unfortunate that when bills have some appeal, like Bill C-583 and others, the government succeeds, through all kinds of procedural tactics, in derailing it.

Moreover, when the Conservatives do not want us to talk too long about something, they bring in time allocation motions. People are no longer fooled, and I saw that firsthand on the ground over the last two weeks. People are aware of this. I am comfortable with that, because the message I am sending to the government is what we have succeeded in doing with BillC-51. That bill had a fairly strong measure of support when tabled in the House, but that is no longer the case. People are not fooled. They understand, because we explain it to them. We are doing our job as the official opposition. We do not do so just on the basis of polls. We do so on principle. We have stood firm.

Some parties may have changed their ideas along the way when they saw they were perhaps on the wrong side of the fence, like the Bloc Québécois. Others, like the Liberal party, decided to persist in their error and continue to support the Conservatives. That is not surprising, because they are much alike.

That said, people are not easily fooled. We too will have the time to explain what is going on, although we perhaps do not have the same budget as the Conservative government, which will spend millions of dollars, not to say hundreds of millions of dollars, on advertising during our hockey games, for example, to tell us how great its budget is.

However, people are not fooled, and they will be able to tell this government that the time has come to stop mocking them and making them believe it is doing things that it does not do at all.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Thank you very much, Mr. Chair. I also thank the witnesses for being here with us today.

My first question is for Chief Alexis.

It was interesting to hear what you had to say about the discretionary power of judges. You are not the first person before the committee to have said that mandatory minimum sentences undermine judges' discretionary power to personalize the sentence.

Howard Sapers, the Correctional Investigator of Canada, said that that there was a contradiction in the Criminal Code. There is a requirement that all of the circumstances be taken into account in sentencing. However, at the same time, minimum mandatory sentences are imposed.

The Canadian Bar Association proposed an amendment to Bill C-583 that would introduce an exemption in section 718 of the Criminal Code to give the courts the discretionary power to set aside the mandatory minimum sentence when it would cause an injustice.

My colleague asked you a question on that, but you did not have time to reply to it. Do you think that principle should have precedence over mandatory minimum sentences in regard to certain problems such as fetal alcohol spectrum disorder, mental troubles, or consideration of the Gladue principle?

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Chair.

Thank you to all witnesses here today. It was very enlightening and informative, I must say.

I thank you, Ms. Ross, first of all because of all the work you do. I think it's very important, and sharing your story helps us to understand.

I will keep in mind what you said about how we need more diagnostic centres. I look at the legislation, which in quotation marks is not necessarily even “in front of” Parliament anymore. I think this is important because we're in discussion mode, and we'll make recommendations. Sometimes, maybe it's my age, I get impatient because I think we were all pretty much aware of the situation, but I always learn something and so I'll keep that positive. At the same time, I don't think we'll be able to move it as far forward in this legislature as I wish we could.

However, the point on more diagnostic centres is a very important one because if, at some point in time, we do have a piece of legislation that comes into force, has an impact on the Criminal Code, and changes different things, it will be all fine and dandy but there are a lot of courthouses in this country. It's a big country, and if all the centres for diagnosis are in certain areas, there will be a lot people who will not be able to benefit from this situation. I'm a strong believer that justice should be rendered the same way for everybody.

I think in your testimony, there was some emphasis made by Professor Pei—I hope I say your name right, but believe you me, the way anglophones say my last name, I'm sorry, but not that much.

Anyways, Professor Pei, you were talking about moving beyond a one-size-fits-all system and the fact that we need more diagnostic centres. I am addressing my question maybe to you. How many of those exist in Canada?

Second, the more I hear about FASD, the more I wonder if section 16 of the code in any shape or way could find application because 16.1 says the following:

No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that renders the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

I am curious to hear your view on the matter.

For Chief Alexis, thank you very much for the points you made, which were very, very important, because I was also going to say that mandatory minimum sentences defeat the purpose of Bill C-583. I understand from your recommendation, and I'm sure the other members on the panel today would agree with you, that Bill C-583 or whatever shape it will come back in during a new legislature should give precedent to this over any mandatory minimum sentencing.

Those are my questions.

[Chief Cameron Alexis, Alberta Regional Chief, Assembly of First Nations]

Thank you very much.

Boozhoo. Tanisi. Aaniin.

I want to thank previous speakers, and also to thank the House of Commons committee on justice and human rights for allowing us to participate in this very, very important presentation.

My name is Cameron Alexis. I am the regional chief for Treaty 6, 7, and 8 in Alberta, and I lead the work on behalf of the Assembly of First Nations executive in the area of justice. I was an RCMP officer for 23 years.

I am honoured to speak to you today about this private member's bill, Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

The Assembly of First Nations has always stressed the importance of flexibility in sentencing. First nations are overrepresented in the criminal justice system. While our population is approximately 4% of the general population, we make up almost a quarter of the present criminal justice system population and over 50% in the western provinces. This current situation is the result of many factors that this committee is well aware of, including colonization, disposition of lands and culture, the intergenerational impacts of residential schools, and the failure of the child welfare system, to name a few.

Currently, paragraph 718.2(e) of the Criminal Code requires that the particular situation of aboriginal offenders be considered at sentencing and requires that a report outlining the individual's background—also known as the Gladue report, from British Columbia—be provided at pre-sentencing.

Bill C-583 would add a definition of fetal alcohol spectrum disorder, or FASD, to the Criminal Code, as well as other provisions for FASD assessment, evidence provisions, and sentencing considerations for accused with FASD. Adding these new provisions to the Criminal Code would allow judges to identify and consider the effects of FASD in the sentencing of the accused.

Some first nation communities have experienced disproportionately high rates of FASD, and the proposed amendments could provide additional context to sentencing and act as a supportive companion to the statement of purposes and principles of sentencing set out in section 718 of the Criminal Code.

We are concerned that recent amendments to Criminal Code requiring mandatory minimum sentences remove from sentencing judges the discretion to appropriately and effectively determine which sentence can best balance all the fundamental objectives of sentencing. Therefore, to achieve its objectives, the bill would require provisions making the mandatory minimum sentencing provisions subject to the proposed provisions of Bill C-583. Otherwise, the bill would fail to provide judges the required discretion to provide creative sentencing, better reflecting the situation and the capacity limitations of accused persons with FASD.

The current criminal justice system has profoundly failed first nations. It has done so in failing to respect cultural differences, failing to address the system's biases against our people, and denying them an effective voice in the development and delivery of service. The introduction of mandatory minimum sentences furthers this fundamental miscarriage of justice and the failure to respect and uphold aboriginal treaty rights and human rights.

In effect, the justice system is investing in the present system instead of preventative measures and proper supports and services for those suspected of and/or diagnosed with FASD, rights including court-ordered FASD assessments as long as the client is not inhibited by lack of funds for costly diagnoses and also that the courts ensure clients are provided with proper supports that respect their rights and those of their biological mothers. This bill cannot have the needed impact while the unique considerations of first nations, including those with FASD, are subject to non-discretionary sentencing conditions.

We have seen the damaging effects of colonization and the residential school system in our communities. The current criminal justice system has consistently and profoundly failed first nations. Without the proper modifications of this bill, it will ensure that this unfortunate legacy continues.

In closing I just want to add a few quick things.

I want to thank all of you for your valuable interventions. I really thank the speakers before me. I also want to thank Ryan Leef from the Yukon for stepping up on this.

As first nations, we continue to struggle with this, and I know from sentencing circles and restorative justice initiatives that we, by and large, cannot factor in FASD. Our people continue to suffer and correction is not the answer. We need prevention.

I deal with people in my own family and in my own community with this almost on an everyday basis. You have to repeat yourself more than several times to even get your message across. We need a different mechanism, and I support the amendment to this bill.

Respectfully, thank you, members of the committee.

Ish nish. Thank you.

[The Chair, Conservative, Mike Wallace]

Ladies and gentlemen, let me call this meeting of the Standing Committee on Justice and Human Rights to order.

This is meeting 68, and according to the orders of the day, pursuant to the order of reference of Wednesday, November 26, 2014, the subject matter is Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

We have four witnesses with us today, but the final witness, Ms. Bradley, from the Fetal Alcohol Syndrome Society Yukon, has already presented. We weren't able to get her for the question-and-answer period, so she has kindly rejoined us today.

We have three presentations of approximately 10 minutes each.

Our first presenter, Ms. Ross, is from the Fetal Alcohol Spectrum Disorder Group of Ottawa. By video conference from Edmonton, we have, as an individual, Ms. Pei, associate professor at the University of Alberta. As well, from the Assembly of First Nations, we have Mr. Alexis, Alberta regional chief. Then, of course, from the Yukon, we have Ms. Bradley, also by video conference.

With that, we'll get started.

Ms. Ross, the floor is yours.

Justice and Human Rights

[Mike Wallace, Conservative, Burlington, ON]

Mr. Speaker, I have the honour to present, in both official languages, the 16th report of the Standing Committee on Justice and Human Rights in relation to the subject matter of Bill C-583, an act to amend the Criminal Code in relation to fetal alcohol spectrum disorder.

The committee requests a 45-day extension to consider it.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

My second question has to do with the $4,000 we have to pay to assess someone. How does the cost to the state for assessing people and redirecting them to good resources compare with just saying, we're not going to assess them and we're going to put them in jail? I would be interested in knowing which policy is better for the state to have.

It's really interesting because my second question would be for you, Ms. Cook. I have a letter written to the committee by the Canadian Academy of Psychiatry and the Law. I'm going to read it in French because I have it in French. It says:

The proposed distinction in Bill C-583 is not supported by psychiatric diagnostic standards. In fact, the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), published by the American Psychiatric Association, the North American authority in diagnostics, does not recognize FASD as a separate or distinct disorder, but rightly includes it with other forms of developmental delay.

I would just like to have your comments on that. Have you read the definition in the bill and what would you say about this paragraph in the letter?

[Rodney Snow, As an Individual]

Thank you, Mr. Chairman.

I am, as you say, Rod Snow. I work as a lawyer in Whitehorse in the Yukon, but I appear today as an individual and not on behalf of any client or organization.

Let me start with full disclosure. I'm not an expert. I'm not an expert in criminal law and I'm not an expert on FASD, but over the last 10 years I have taken part in the national conversation on the treatment of individuals with FASD in the criminal justice system. Today I want to tell you about some of what I've learned and about how you can make a difference, I think, in the lives of individuals with FASD.

At the risk of repeating some of what you may have heard already, let me start with some of the key facts that have framed elements of this national conversation. First, FASD is a permanent organic brain injury. There is no cure, although outcomes can improve with treatment. Second, characteristics of individuals with FASD include impaired executive functioning, lack of impulse control, and difficulties understanding the consequences of their actions, so they often don't learn from their mistakes. Third, criminal 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.

So what do we do?

I start from the proposition that nobody is more morally innocent than a baby born with a disability. When that baby grows up and is unable to meet a legal standard of behaviour because of his or her disability, the state does not deliver justice by punishing, yet that is what we do in Canada.

The tools that Parliament has given crown counsel and judges are limited. If you speak to people who are working on the front lines, you will hear the same story over and over again. It goes something like this. They will tell you that too often children with FASD start out in the child welfare system. They proceed into the youth criminal justice system as teenagers, and then move into the adult criminal justice system, where the cycle starts all over again. They know that jail time will not rehabilitate, deter, or cure the individual with FASD, but they have few tools to stop this revolving door. Eventually everyone gets out, but the time in jail has done little to help the individual or to improve public safety. This is where you come in, as members of Parliament. We need you to support changes to the Criminal Code and our corrections system so that they are smart and effective on crime.

We know that the old approach is not working. We need a new one that's designed to succeed. I think it was Einstein who said that doing the same thing over and over again and expecting a different result is the definition of insanity. There's a broad consensus that law reform is needed. In 2010, with the support of crown prosecutors and defence lawyers, the Canadian Bar Association supported initiatives in this area by federal, provincial, and territorial justice ministers and called for measures to decriminalize FASD. Then justice minister Nicholson quickly said FASD is a huge problem in the justice system—“huge problem”, his words, not mine.

Provincial court judges support the bar association's call for reform. FPT justice ministers committed to dealing with FASD as an issue of access to justice, and in August of 2013 Justice Minister MacKay made a public commitment to act on this issue. So I was excited when Ryan Leef introduced Bill C-583.

Bill C-583 has three main elements. First, it defines FASD. Second, it allows a judge to order an assessment, and third, it allows FASD to be considered a mitigating factor in sentencing. All three elements are important, but I want to draw your attention to the section that allows a judge to presume that the cause of FASD is maternal consumption of alcohol if there is good reason why that evidence is not otherwise available. We want to avoid situations where everyone knows that FASD is involved, but an assessment remains inconclusive because this evidence is missing.

I don't have to tell you, Mr. Chair, that Bill C-583 received support from all parties. I sat on the Yukon legislature when Yukon MLAs unanimously passed an NDP opposition motion to support Bill C-583, and I understand that MP Casey has introduced Bill C-656 that adopts much of Bill C-583 and goes further in the areas of external support orders and corrections reform.

I was disappointed when Bill C-583 was withdrawn. Many of us thought that, with support from all parties, it had a chance. Now we turn to you and your committee, because we feel that it's the best hope for reform. I urge you to listen, and listen carefully. Please consider action that can be taken to prevent FASD, to encourage assessments, and to improve outcomes for those in the federal penitentiary system.

I also encourage you to hear from people with this disability and their families. People with disabilities have often said, “There should be nothing about us without us.” When you report, please do not confuse the need for more medical research or scientific study with the value of Bill C-583. Do not say that this is a complex, intractable issue, and therefore, Bill C-583 or its equivalents need more study before action. It needs more political courage and leadership.

I think Ryan Leef has done his part, with limited resources. It is now time for Minister MacKay, with the resources of the Department of Justice at his disposal, to honour his 2013 commitment to act.

When you report, say that the criminal law needs to be reformed and that Bill C-583 is a good start. Please say that unequivocally and unanimously. Do not sacrifice the good in the pursuit of the perfect. If you back Bill C-583, you'll make a positive difference in the lives of individuals with FASD.

Parliamentary leadership matters. By doing so, you will encourage further action in our communities, provinces, and territories, and that, too, is good.

Thank you very much.

[Sean Casey, Liberal, Charlottetown, PE]

Thank you, Mr. Chair.

Madam Boivin asked you about the recommendations of the Canadian Bar Association from a couple of years ago. I'd like to focus on one of those recommendations, because it is directed right to Corrections Canada and also because it wasn't in the piece of legislation that was withdrawn; Bill C-583 does not contain any reference to it.

Let me read to you the recommendation from the Canadian Bar Association of August 2013:

The Corrections and Conditional Release Act should be amended to expressly require the Correctional Service of Canada to accommodate FASD as a disability when providing correctional services to inmates who have or likely have FASD.

Could I hear from you concerning your thoughts, recommendations, opportunities, limitations, or the advisability of including that recommendation in legislation—whatever comments you have with respect to that recommendation from the CBA, please?

[Françoise Boivin, NDP, Gatineau, QC]

So let me come back to the parallel I was drawing with the Canadian Bar Association's five recommendations. They urged the federal government to amend the Criminal Code based on five principles: that legislation should define FASD (that is in Bill C-583); that courts should be authorized to order assessments (that is also in Bill C-583); that FASD should be a mitigating factor in sentencing: that courts should be authorized to make orders for external support plans for those with FASD; and that Correctional Service Canada should be required to accommodate those with FASD receiving sentences of two years and more.

That background seems well reflected in Mr. Leef's bill. It seems to include it all, in an overall way, starting from the time when a person enters the legal system because they are charged with something.

[Françoise Boivin, NDP, Gatineau, QC]

But, Mr. Zinger, Bill C-583 provides for that proactive work, not just the punishment aspect of the sentence. It is also a matter of what aspects the judges see. Bill C-583 goes further; it is much more complete. The matter of the syndrome can be included and put before the court, which will then adapt the sentence.

Is that not a new way of working proactively?

[Françoise Boivin, NDP, Gatineau, QC]

But how do you explain that? As I understand it, you do not think that Bill C-583 will change a thing. As the Aboriginal prison population has increased, it seems that the principles of the Gladue case have not borne fruit. That is what I understand from Mr. Sapers' presentation.

Has there been any analysis of the reasons why it has not worked? Is it because it has not been talked about during the trials, because the courts have not considered it? Do we have any data, or do we take it for granted that, notwithstanding the Gladue case, courts just send people to prison? Does that suggest that, even with FASD, the principles of Bill C-583 would not change anything at all? It seems to me that the statements of principles in the bill are pretty solid.

[Françoise Boivin, NDP, Gatineau, QC]

Thank you, Mr. Chair.

Thank you, Mr. Sapers.

That was extremely interesting, albeit a little discouraging too. You reviewed the implications of the Gladue case very well. The reality does not seem to correspond to what was anticipated at the time. We are now studying Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder). We are just studying it in broad terms.

You are aware of the recommendations that the Canadian Bar Association has made, starting in 2010, about fetal alcohol spectrum disorder (FASD). The association came back to the issue in 2013 with five very specific recommendations dealing with what correctional services must do. You say that definition perhaps should be broader, and I understand that, but we have to start somewhere because the situation just seems to be becoming more tragic.

Before you made your presentation, you were surely aware of the bill Mr. Leef has introduced, Bill C-583.

Do you think that the bill could help to improve the situation?

[Howard Sapers, Correctional Investigator, Office of the Correctional Investigator]

Thank you very much, Mr. Chair. I appreciate it.

Thank you, committee, for the invitation to appear before you this afternoon in the context of your study of Bill C-583.

I'll speak about some of what it is that we know about the prevalence of fetal alcohol spectrum disorder, and as important, some of what it is that we don't know about the disorder in corrections, and the specific outcomes for federally sentenced offenders affected by fetal alcohol spectrum disorder. I'll comment on the capacity of the Correctional Service of Canada to meet rising mental health care demands in federal prisons, and conclude with some considerations that I believe are relevant to your study of this proposed legislation.

With respect to the prevalence of FAS disorders amongst individuals involved in the criminal justice system, there is no one conclusive or confident dataset, though it is an area that has attracted more research and attention in recent years. Estimates for FAS-disordered individuals amongst correctional populations vary significantly, with numbers typically ranging from about one in 10 to nearly one in four.

It is difficult to reliably establish prevalence rates in correctional settings as there is considerable variation in methods of diagnosis, testing, and case identification. It is complicated by the need for some diagnoses to confirm a history of maternal drinking in a population who were often the victims of abuse, neglect, or subject to intervention by child protection authorities. The impact and interplay of socio-economic factors and criminal justice system involvement in disadvantaged settings suggests that FASD is a substantial problem among youth and adult correctional populations. FASD is a lifelong, clinically recognized disability; an afflicted person does not outgrow their brain injury.

The research to date suggests that individuals with FASD are at increased risk of coming into contact with the criminal justice system due to neuropsychological deficits in judgment, difficulty understanding consequences of behaviour, inability to make connections between cause and effect, impulsivity, drug or alcohol misuse, and a failure to learn from past mistakes. The range of cognitive deficits that characterize FASD have important legal and practical implications for the criminal justice system.

As a group these individuals challenge some of the underlying premises of sentencing, namely that defendants understand the relationship between actions, outcomes, guilt, culpability, and punishment. 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.

In 2011 the Correctional Service of Canada conducted one of its first comprehensive research studies of FASD prevalence in federal corrections. It found that amongst a sample of newly admitted adult male offenders aged 30 and under, 10% of the participants met the criteria for a diagnosis of FASD. Another 15% of the sample met some of the diagnostic criteria, but were missing information critical to making or ruling out a positive diagnosis. The rate of FASD amongst this sample is 10 times higher than the current general Canadian incidence estimate, which according to Health Canada is about nine in 1,000.

The research also demonstrates that those diagnosed with FASD had a higher risk and needs rating compared to other offenders. FASD-affected offenders had severe neuropsychological deficits in attention, executive functioning, and adaptive behaviour. They were much more likely to have had multiple convictions and previous periods of incarceration as both youth and adults. Offenders with FASD have more problems adjusting while incarcerated. They are less likely to have completed school, and more likely to have dropped out at an earlier age than other offenders. They are more likely to report a personal and family history of abuse, substance abuse, and delinquency.

Research confirms another important finding that goes to stigma and perception, which is that the level of violence used during the commission of their crimes was not markedly different from non-FASD affected offenders.

Significantly, none of the offenders diagnosed in this research study had been previously identified as being FASD-affected. As the research concludes:

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.

Four years later, Corrections Canada still does not routinely screen for FAS disorder among newly admitted, federally sentenced offenders. This is a vulnerable population with significant mental health and behavioural needs. More recent CSC research confirms that those with FASD exhibit deficits that impact their ability to adjust to an institutional setting. As such, they are more likely to be involved in institutional incidents, both as instigators and as victims, and to incur institutional charges. They complete their correctional programs at much lower rates and they typically spend more of their sentence incarcerated before their first release. Offenders with FASD are more likely to be returned to the community on statutory release.

The unfortunate reality is that most FASD-affected offenders come into prison undiagnosed and untreated, and they remain that way. There is very little programming for affected adults in the community and there are no correctional programs specifically for offenders with FASD. CSC can and does adapt interventions to accommodate needs. There is evidence to suggest that individuals with FASD can benefit from programs that are structured, highly repetitive, and that use multiple delivery modalities.

I will conclude my remarks with a cautionary note. Bill C-583 contemplates an amendment to the Criminal Code that would require the courts to consider as a mitigating factor in sentencing a determination that the accused suffers from FASD. It is a proposed change to sentencing principles that is similar in intent to paragraph 718.2(e) of the Criminal Code, which was enacted in 1996 and which expresses the need for judges to consider all other sentencing alternatives before sending an offender to prison, with particular consideration for the circumstances of aboriginal people. The seminal Supreme Court of Canada decision in R. v. Gladue, 1999, interpreted this provision as a remedial measure aimed at combatting the overrepresentation of aboriginal peoples in Canadian prisons. Though the intent of paragraph 718.2(e) was to show restraint in the use of incarceration, the outcome of this measure has not lived up to the optimism about it.

When the Criminal Code was amended in 1996, aboriginal people represented 15% of the total offender population. Today, almost 25% of the federal inmate population is of aboriginal ancestry. These trends are accelerating. In fact, the incarcerated aboriginal population has increased by more than 50% in the last 10 years. If there has been judicial restraint, it has not translated into an actual decrease in the number of aboriginal people being sent to Canadian jails and prisons.

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.

I have suggested that the challenges faced by FASD-disordered individuals are largely at odds with the purposes of sentencing and incarceration. It is one thing to shed light on the causal factors that may have brought an FASD-afflicted person before the courts. It is quite another to have in place upstream diversion and treatment programs, services and supports in the community that could provide the courts with an appropriate disposition other than incarceration. Sentencing is a back-end measure. There is a need for screening and diagnostic services to be made available to FASD-afflicted persons at first contact with the criminal justice system. Prevention and diversion should be front-end considerations. By the time a case makes it to sentencing, options other than incarceration have become considerably restricted.

Notwithstanding these concerns, it may well be time to consider broadening the definition of mitigating factors at sentencing to include all forms of mental illness and disability, not just FASD. Such consideration, while late, would certainly be better than never.

Thank you very much for your attention. I look forward to your questions.

[The Chair, Conservative, Mike Wallace]

I'm going to call this meeting to order. This is the Standing Committee on Justice and Human Rights, meeting number 67. According to the orders of the day we're dealing with the order of reference of Wednesday, November 26, 2014. The subject matter is Bill C-583, an act to amend the Criminal Code, regarding fetal alcohol spectrum disorder.

We have a number of witnesses today. I'm going to do a little housekeeping first if you don't mind, committee. We did invite everybody back who was at the last meeting, at which we were interrupted with numerous votes. One person is joining us in the second hour and a half who had given their presentation but we didn't give an opportunity to ask questions. Three of the witnesses in the second hour are on video conference, so it will take a few minutes to get that set up, and we have a fourth witness who will be here with us in the room.

We have two witnesses with us today, but let me start with this. Technically the committee is to report back to the House on Thursday. There is no way that we're going to have a report by Thursday. My recommendation to the committee is that we ask for an extension of 45 days. We'll do it within 45 days, but that's the maximum we can ask for. We'll get a motion here and it will go to the House. It will get voted on, I guess. I could ask for unanimous consent to see if we could get it done that way. It's one less voting round for us. I need a motion to that effect. If we pass it today I would bring it to the House tomorrow, and we would have it passed before Thursday.

[Wenda Bradley]

Thank you.

When Bill C-583 is approved, requests for appropriate assessments need to be made by the court. An assessment for FASD should be requested and it should follow the Canadian Medical Association diagnostic guidelines. These guidelines suggest that a multidisciplinary team assess all abilities or concerns for the individual with an adaptive functioning focus versus a strictly psychological analysis. A stand-alone, general, psychological assessment is not as useful and may in fact be harmful because it doesn’t reflect actual brain damage and impact on functioning.

There is a great deal of co-morbidity with mental health issues, but the mental health issues need to be considered in relation to the underlying permanent brain damage caused by prenatal alcohol exposure. Some of the mental health issues may be occurring because the underlying FASD had not been diagnosed earlier in the life of the person.

An FASD assessment, following the collaborative approach recommended by the CMA, could as well recognize or rule out genetic issues and consider the effect of other traumas an individual may have encountered that may be affecting his or her abilities. If all aspects of the judicial system, from investigation, decision to charge, pre-sentence, court, sentencing, disposition and conditions, incarcerations and reintegration, understand the impact of FASD on a person, effective help and support can be offered. A person may succeed in not being involved in further justice issues, or at least minimize the need of involvement, if appropriate dispositions can be made.

As one of our clients has said about trying to stay out of the justice system, “I know I make a lot of bad choices so I need you to help me not make so many.” Having a diagnosis also helps individuals learn where their strengths are and where they need help to keep themselves out of trouble. One young fellow I am aware of who has a history of sexual touching of children, now knows that he cannot be where children are because he struggles to control this impulse, so he intentionally stays away from areas where children will be.

We as a society need to get over our feelings of loss and grief for what the potential of the person could have been and get on with accepting the person for who they are. Dr. Sterling Clarren has frequently said that people with FASD are doing what they were designed to do and we need to adapt our behaviour towards them. Collaboration between FASD-informed services and FASD-aware service providers will be the only way that a person who has this disability can move through life. Interventions must begin with nonjudgmental, unbiased observations.

People with FASD need the understanding, caring, and support from all levels of service providers. A story of a court interaction that I was privy to demonstrates how knowledge of FASD can be used for collaboration of service. There was a judge addressing a client known to the court to have FASD and listing off the requirements of probation for that person, with an appropriate language level and at an appropriate rate of talking. The client was intently listening and nodding his head as the judge talked. The judge finished and then asked the person if he understood. The client, who understood some of his own limitations, said, “Yes, Judge, I understand, but I won’t remember.” The judge was quick to point out that was why his FASSY worker would go over the probation orders with him daily.

This story, I feel, is significant in that the judge recognized and acknowledged, by his actions, the disability of the offender; the offender recognized as part of his disability that which would make it impossible for him to do what the judge was asking; and both recognized the need for support to continue outside the courtroom.

We're learning that people with FASD, with supports, can live clean, sober, and lawful lives and contribute to their own families, communities and society. By making this important amendment to the Canadian Criminal Code through Bill C-583, Canadians will keep the most vulnerable people of our country from further harm or from causing harm to others, and the judicial system will get to the root of the challenging behaviours that impact victims, families, communities, and our society.

Thank you for your time.

[The Chair, Conservative, Mike Wallace]

Okay, ladies and gentlemen, thank you for joining us. I'm sorry for the delay in the beginning of the meeting. This is the Standing Committee on Justice and Human Rights. This is meeting number 66 and we're dealing with the order of reference of Wednesday, November 26. The subject matter is Bill C-583, an act to amend the Criminal Code, regarding fetal alcohol syndrome disorder. We have a number of witnesses, and we're going to get right to them because we only have a short period of time. The goal is to hear all the witnesses. If we have time we'll have a question period, but if not, we'll start.

As per the orders of the day, please introduce yourself when you're speaking. From the Aboriginal Legal Services of Toronto, Mr. Rudin, the floor is yours.

[The Chair, Conservative, Mike Wallace]

Thank you very much.

Committee members, for your information, I would like to remind you that on the Monday we get back—obviously the break week is next week—we're going to be back to Bill C-587. We have witnesses for the first hour, and clause-by-clause study—there are only four clauses—for the second hour.

The next one was scheduled for C-590. My suggestion, which I think we'll follow, is that we'll continue to deal with C-583 at that meeting. If we're approved to travel, we'll be travelling the next week and having two meetings. Otherwise, after the break week, if we're not travelling from the 16th to the 18th of that week, we will have two more meetings at least on this subject. So we'll bump C-590 until after we've done this study. There is no use having three things going on at one time, in my view.

With that, I do need witnesses. Whether they're witnesses we're going to see in the Yukon or here, we need witnesses from all parties.

Thank you very much.

With that, we're adjourned.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

If the 2006 study was not satisfactory to the member, that may be because the government did not follow the recommendations of the committee. That may be why there is not enough information from Parliament's point of view.

I have several studies here that demonstrate the importance of acting regarding criminal justice. I know that someone who is found guilty of an offence is affected by the fundamental principles of criminal justice. However, we have to give indications to judges and to the actors in the criminal justice system. This is in line with the principles established in the Gladue decision—you are probably familiar with that Supreme Court judgment.

Historically and culturally, people who are victims of this syndrome find themselves in penal institutions without any kind of help. Why not come to the assistance of these people by adopting Bill C-583? We could also ask the government to respect the recommendations contained in the 2006 study, and help these people.

[Ryan Leef, Conservative, Yukon, YT]

As I said in the House, I believe in the merits and the tenets of the bill without question. There's a little more to that process, of course.

I want to deal with a couple of points in a more general perspective here.

As for the bill itself, when I first introduced this, I wrestled with the narrow scope of C-583, that it really was only going to impact one part of the population in that justice piece. Through my consultations, which were continuous—literally daily I was speaking with the groups and organizations—when we started looking at the timing left for us, and the greatest good and the greatest impact, we started looking at this silo-breaking study as being something that really would be beneficial.

It was largely on the advice and support of many of the groups that are invested, and not just groups and organizations.... As you can imagine, I've been inundated with input from families who have had this experience, people living with children with FASD. I was getting the pure family perspective. The law enforcement community, and groups and organizations in the health community really support what it is that you're going to be able to do with this study.

Also, you did mention the 2006 study. I'll correct you on this. There haven't been a lot of studies. There has been that 2006 study, but since that point in time there's been tremendous evolution in knowledge around FASD, particularly around the field of diagnosis, and that's an important thing for this committee to seize itself with. I think the groups will tell you clearly that we've learned a lot since 2006, and what we can do with that information at the federal level is very important. But right now I don't think that evolution of information has permeated all of the departments the way it should. It is very much making what you're doing worthwhile in topping up that 2006 study, which is, in my mind, at present day a little bit incomplete.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

That's a broad consultation. Congratulations to the member.

In your speech, you also referred to a conference that took place in Vancouver. You said that you went all over Canada to consult different organizations regarding your bill. In your speech in the House of Commons, you said there was a national consensus on the importance of acting on this problem. As you said, your bill has received the approval of the Canadian Bar Association and of several other organizations. We agree that this is an extremely important problem.

We should deal with it right now, because there are people who could benefit from this right now.

Studies were already done by other committees, among others the Standing Committee on Health, in 2006. What could that study add to our work? The NDP was ready to support Bill C-583 today and send it quickly to the Senate. Why did you vote against the bill when all of these organizations support it? What will that study add? Today, we could at least have passed something that is likely to help people in prison, who unfortunately are victims of a syndrome that is beyond their control.

[Ryan Leef, Conservative, Yukon, YT]

Okay, fair enough.

Mr. Chair and committee members, thank you very much for your invitation to appear today on this important topic.

I apologize, but I am going to make my presentation in English only. I don't speak French well, but I understand it well. If you have questions to put to me in French, that will be fine.

I'm practising as best I can. If there are any questions in French, I'll do my best to navigate those and rely on interpretation if I can.

I've had an opportunity to speak about my Bill C-583 in the House of Commons a number of times. I thought that today, for the benefit of the committee, I would reflect more on some of the potential recommendations I have. Having worked with groups and organizations that routinely deal with FASD, I would perhaps also like to provide a little bit of guidance based on my professional experience, both prior to becoming a member of Parliament, and now, as a member of Parliament, to help with your deliberations as you take on this study.

Before I get to that piece, I do want to say that it has been an interesting journey for me to explore how the development of a private member's bill works in the House of Commons, and the work entailed in engaging community partner groups and colleagues on both sides of the House.

I can say that from a Yukon perspective, when I took this on, I found tremendous support from the Yukon territorial government, and indeed, from the opposition there. The NDP opposition in the Yukon were very supportive of the efforts I was making. I am also grateful for the support that was provided across the floor in the House of Commons to move this into committee for a more detailed study. In that vein, I think we have an opportunity here to do some great work for the people that work with people living with FASD on all facets of this issue.

I know we have a colleague here, on the NDP side, who has put forward some legislation in the past to deal with this important topic. I know my colleagues on the Conservative side of the House have been seized with this for a long time. And, of course, we have colleagues like MP David Wilks who has seen the impacts first-hand through his career, as I have, of people living with FASD, and their conflict with the criminal justice system.

My background involves not only growing up in the Yukon where there is, I think, tremendous leadership by the Fetal Alcohol Syndrome Society Yukon, FASSY, to address this critical topic in Canada, but also, in my professional careers as a correctional superintendent and as a member of the Royal Canadian Mounted Police. I was directly able to see the challenges people living with FASD have, particularly when they come into conflict with the law, and also some of the measures we can take to help support them before the justice system becomes an inevitable track in many of their lives.

They are disproportionately represented in the justice system. There are a number of reasons for that which I think we'll be able to touch on through some questions and answers members might have.

I've said a couple of times in my addresses to the chamber on this topic that our government has been focused on victims and victims' rights. I commend our government for that approach. The reason this topic is so important is that long before people with FASD collide with the criminal justice system, they are victims first. Unfortunately for them it's a life sentence. FASD doesn't get better. It is a lifelong condition once someone has it, and there is really no other neurological development disorder that sets somebody on a crash course with the criminal justice system from the moment they are born. That's the bad news.

The good news is there is lots we can do, much of which you will hear over the coming days as you engage in this study. There is a lot of great work that's being done by community groups and partners, and indeed, by our government.

I'm looking forward to being able to touch on some of the great work I think puts Yukon at the forefront of FASD research and FASD engagement, in large part due to contributions by our government and investments in the right areas which I know will help to improve the social living conditions of people living with FASD, improve their opportunities in life, and ultimately avoid the inevitable collision with the criminal justice system we often see.

Of course, there is a critical element in this that involves a prevention discussion, and I know that other experts and witnesses will talk to you about that.

In that vein, what I've heard from the discussions I've had with the key stakeholders and I think you're going to hear—and it would be my recommendation—is that the committee look at a broad perspective of across-departmental approaches to this. From a justice committee standpoint, if all the roads are leading to a justice outcome, we need to look at where we can support the prevention or altering of that route. I think we all recognize that starts with investments and support in education, social support, housing, employment opportunities, skills development, health care and prevention, and education around that front.

I would encourage the committee to attempt to broaden the witness base as best they can, if that hasn't been a consideration to this point, to see if we can break down some of the silos that might exist at the federal and provincial levels. Much of the discussion that we have when we reach out on those topics does involve provincial, municipal, and NGO support at the community level. It doesn't all fall under the purview of the federal government. Nonetheless, the federal government can take a role in engaging in those discussions and providing either the necessary financial support, legislative support, or the networking that can often be realized by federal counterparts in this role.

There are a couple of quick facts that I think are important for the committee to consider. We'll clearly talk about the social impact of FASD. There is also a financial cost that is well stated. I'm referring to a report now from the Fetal Alcohol Syndrome Society Yukon, which estimates annual costs for FASD in Canada to be about $5.3 billion; the average individual cost per person is approximately $1 million over their lifetime.

I think that illustrates clearly that prevention and support, particularly on the prevention front, are very important in terms of the overall financial cost. We have some challenges with diagnoses that I know will be discussed throughout this study, but the best estimate we have right now is that about one in every 100 births in Canada has been affected by FASD. Those rates are alarming as well.

I applaud and I thank the committee for taking this on. You can see both in terms of the numbers on the social costs and the financial costs that this is a worthy topic of national discussion and national attention. For that, I congratulate and thank you. I obviously wish you all the best as you continue your engagement on this study.

With that, I'd be happy to field any questions members may have.

[The Chair, Conservative, Mike Wallace]

Okay, it looks as if we have everybody here, which is great.

We are the Standing Committee on Justice and Human Rights. This is meeting number 64. Pursuant to the order of reference of Wednesday, November 26, we are dealing with the subject matter of Bill C-583, an act to amend the Criminal Code with regard to fetal alcohol spectrum disorder.

With us we have Ryan Leef, the MP for Yukon. It is his private member's bill that has been referred us in terms of the subject matter, so we're going to have an opening statement from him and then we'll do rounds of questions.

Prior to our doing that, we have two pieces of business to deal with.

There are two budgets on the table, ladies and gentlemen. The first one deals with Bill C-587, which is $5,700. That has to do with the committee dealing with the bill on increasing parole ineligibility.

May I have a motion for $5,700?

Drug-Free Prisons Act

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I rise today to speak to Bill C-12, the optimistically titled drug-free prisons act.

Bill C-12 would amend the Corrections and Conditional Release Act to require parole boards to cancel day parole or full parole if an offender failed a drug test or refused to provide a urine sample and if the board then considered that the criteria for granting parole were no longer met. As the law currently establishes, urine samples may be demanded on reasonable grounds as part of a random selection or as a prescribed requirement of a particular program, such as a substance abuse treatment program.

Bill C-12 would also clarify that conditions of parole or other forms of release may include conditions relating to an offender's use of drugs or alcohol. The imposition of such conditions would explicitly include cases where drug or alcohol use had been a factor in the offender's criminal behaviour.

The Liberals will be recommending that this bill go to committee for further study. However, I would like to reiterate the criticisms that my colleague, the hon. member for Malpeque, levelled at this bill over a year ago.

First, we would all like to see drug-free prisons, yet Bill C-12 takes an exclusively punitive approach to substance abuse in Canada's correctional facilities. Does anyone think this will be effective?

In his 2011-12 annual report, Howard Sapers, the Correctional Investigator of Canada, made the following observation:

A “zerotolerance” stance to drugs in prison, while perhaps serving as an effective deterrent posted at the entry point of a penitentiary, simply does not accord with the facts of crime and addiction in Canada or elsewhere in the world. Harm reduction measures within a public health and treatment orientation offer a far more promising, cost-effective and sustainable approach to reducing subsequent crime and victimization.

Mr. Sapers' report specifically stated:

—that a comprehensive and integrated drug strategy should include a balance of measures -- prevention, treatment, harm reduction and interdiction.

In 2012, the Conservative government re-appointed Mr. Sapers, giving him his third consecutive term. Accordingly, one might be tempted to think that the government would take the advice of its chosen adviser. After all, Mr. Sapers' recommendations were the product of careful and politically impartial analysis. Efficacy was the sole motivator.

Why does the Conservative government not listen to the highly qualified individuals who have been hired to give good advice and who are motivated solely by the desire to give good advice?

When Privacy Commissioner Daniel Therrien suggested splitting Bill C-13 into two bills, the government ignored him. When Chief Justice Beverley McLachlin of the Supreme Court tried to warn the government about its legal problem with appointments from the federal court, the government ignored her. We all remember that the Prime Minister and the Minister of Justice even went so far as to slander the Chief Justice for trying to save them from themselves. This is a worrying trend, although I do not expect the government to take my advice, either.

In this instance, ignoring the Correctional Investigator is stunning, or as my Newfoundland colleagues may say, “stunned”. Howard Sapers was vice-chairperson for the Prairie Region with the Parole Board of Canada, director of the Crime Prevention Investment Fund at the National Crime Prevention Centre and executive director of the John Howard Society of Alberta. He served two terms as an elected member of the Alberta legislative assembly, including as leader of the official opposition. He is also an adjunct professor School of Criminology at Simon Fraser University, and he has served as president of the Canadian Criminal Justice Association. That is whose advice the government is ignoring.

Instead of taking that advice, the government is opting for a purely punitive strategy. Yes, the government's only solution to drug use in prisons is to keep more people in prisons for longer periods of time. As Kyle Kirkup wrote in the The Globe and Mail, the government's thinking on criminal justice is summed up by the slogan “Got a complex social issue? There’s a prison for that”.

I suppose this should come as no surprise. Bill C-12 is business as usual for the Conservatives. It is strong on rhetoric and weak on policy.

The government consistently prioritizes optics over substance, Orwellian sound bites over logic and it does Canadians a great disservice. We see it with mandatory minimums. We see it with the failure to use evidence to formulate public policy. In its eagerness to appear tough on crime, the government goes soft on thinking.

Last year, Mr. Sapers shared some deeply troubling statistics with Canadians. His report indicated that Canada's prison population is now at its highest level ever, even though the crime rate has been decreasing over the past two decades.

About three out of four offenders in federal penitentiaries are considered to have addictions, and a very high percentage of those addicts also have mental health issues. Given the context, this new bill's punitive approach is clearly unjustified.

Further, close to a quarter of all inmates are aboriginal, although aboriginal people make up only 4% of Canada's population. In the past decade, the number of aboriginal women in prison has increased by 112%. Aboriginal inmates are also subject to use-of-force interventions and incur a disproportionate number of institutional disciplinary measures. In addition, aboriginal inmates are typically released later in their sentences—80% by statutory release—and are less likely to be granted day parole or full parole.

Still, here we have a bill that does nothing to address the historical injustice and resultant social problems that aboriginal people are grappling with today. Instead, this bill would effectively lock up aboriginal inmates struggling with addictions for longer periods of time.

The issues plaguing aboriginal communities are reported in the newspaper, and we know those are available in this chamber. Therefore, ask, when is the government going to address the problems facing aboriginal communities?

I am disappointed by the government's approach, but I am not surprised. Just a couple of weeks ago we saw what the government did with Bill C-583, the bill from the member for Yukon, that would have made fetal alcohol spectrum disorder, or FASD, a mitigating factor in sentencing. Of course, FASD disproportionately affects aboriginal and northern communities. Bill C-583 was a bill that both the Liberals and the New Democrats were ready to support, yet the member for Yukon agreed to turn the bill into a study, killing his own proposal. One could reasonably infer that the government pressured the member to do this rather than risk being seen—Heaven forbid—as soft on persons with fetal alcohol spectrum disorder. However, I digress.

Speaking of this bill, we need to consider what the correctional investigator said in his 2013-14 report. Specifically, he was critical of the government's continued refusal to develop a comprehensive program. I emphasize the word “comprehensive”. To respond to continued drug use in penitentiaries, he said:

Interdiction and suppression in the absence of a more comprehensive range of treatment, prevention and harm reduction measures will not eliminate the demand (or supply) of contraband drugs or alcohol.

Mr. Sapers also criticized how the government had undermined a key correctional services program on addiction, specifically, its 10% funding cut to the prison methadone program. Mr. Sapers said:

I question the appropriateness of reducing investment in a program that delivers sound public policy benefits from both a health and public safety standpoint.

I could not say it better, and I would strongly urge the government to heed the advice of its chosen advisers by developing a more comprehensive strategy than what this punitive bill represents.

Again, Mr. Sapers set out what that strategy would look like. It would involve an integrated link between interdiction and prevention, treatment and harm reduction. It would involve a comprehensive public reporting mechanism and would involve a well defined evaluation, review and performance plan to ensure efficacy.

Finally, when the bill goes to committee, I would especially urge the government to take seriously any constructive proposals for amendments that emerge. We currently have a punitive bill that would not solve the drug problem in Canada's prisons and that would exacerbate aboriginal incarceration rates. Frankly, we need to do better, and we can do better.

The House resumed from November 20 consideration of the motion that Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be read the second time and referred to a committee, and of the amendment.

Oral Questions

[Sean Casey, Liberal, Charlottetown, PE]

Mr. Speaker, I would like to ask for unanimous consent for the following motion: That notwithstanding any Standing Order or usual practice of the House, the amendment to the second reading motion of Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder), be deemed to have been withdrawn, that the bill be deemed to have been read the second time and referred to the Standing Committee on Justice and Human Rights.

Criminal Code

[Ryan Leef, Conservative, Yukon, YT]

Mr. Speaker, I would like to start by thanking all members of Parliament for engaging in this debate. It has been a great opportunity to bring the intentions of Bill C-583 to the forefront.

I will talk briefly about the impetus for the bill and my belief in it. However, before I get to that, there are a few people in my community in the Yukon I would like to thank for all the work they have done to support this legislation getting this far.

I would particularly like to thank Rod Snow and Heather MacFadgen; the great people at FASSY and Mike McCann; and a good friend and former member of the Royal Canadian Mounted Police, Gina Nagano, who provided some fantastic insight into the merits of Bill C-583 on a recent visit here in Ottawa.

My staff, of course, as members can imagine the evolution of this bill, have done a tremendous amount of work with the broad stakeholders across Canada, and for that I thank them.

I thank the great stakeholders in our nation who have done so much work that we have been able to get the bill to this point.

I want to touch on one thing, so that those across the community realize. Unfortunately, in the life of a private member's bill, time is not always our friend. We know that it is not immediate, but as we near the end of the 41st Parliament, I am being very realistic about the chances of my bill now getting through all the phases a bill needs to go through, including three readings in the Senate. It is important to me that we do not just have a symbolic victory for this bill, but that we actually have concrete, measurable, and tangible things.

On that note, I was proud to support the government's initiative to expedite the subject matter of this bill, move it into committee, break down the silos, and go across departments to study this bill from a broader range than the focus I had under Bill C-583. From that, I have absolutely no doubt whatsoever that we are going to achieve outcomes and recommendations that will provide a broader benefit for the entire community of FASD. I very much look forward to seeing the results of that study and hearing expert testimony right across Canada, particularly from my home territory in the Yukon, which I know are leading the way in FASD research. I am looking forward to that.

I know the recommendations are going to be concrete. I know they are going to be solid and beneficial to the entire community. I know, without exception, that we are going to build on the great work we are already doing as a government, take those recommendations, and come out with an action plan that will invariably improve the lives of people living with FASD in Canada. I am very excited about that.

I cannot help but notice that, in the world of social media, already the NDP has tweeted out that I have agreed to kill my own bill. Let me correct the record on that point before those members get on their tweeter storm.

This is an important step for people living with FASD and an important step for the community. I urge NDP members, before they launch out into their social media hack job on this, to understand that this is critical for the community and important for the people across this country. Their opportunity to study and research this is going to be the most significant step forward that we have had on FASD in a long time in the Canadian Parliament. For that I am proud, and for their previous support of my bill, I am thankful. However, I ask them, I urge them, to not play politics with this issue, get on board, support the committee, provide witnesses, participate wholeheartedly and fulsomely, provide recommendations that are going to help this community, avoid the social media attack campaign that they have already started less than a minute and a half ago, and get on side with this community. That is what I am asking as we move forward, and I look forward it.

Fundamentally, as a former member of the Royal Canadian Mounted Police and as a deputy superintendent of the Whitehorse correctional facility, I know and I have seen first-hand the impact of the criminal justice system on people living with FASD who involve themselves or get mixed up in it. I believe fundamentally that the merits of my bill are sound and I stand behind the tenets of that piece of legislation. Were it not for the time I had left, this bill would still be going forward, and I know with a good amount of support from the House of Commons.

I will leave members with this note.

I know that our government stands behind victims, and victims first, and people with FASD are victims first. Long before they ever become offenders in the criminal justice system, they are victims. There is no other population in our country who, when they take their very first breath, are on a crash course with the criminal justice system, and that is true for people with FASD.

I look forward to bringing this issue to committee, getting great results with the subject matter experts who exist in our nation, and finding concrete and real results.

I look forward to everyone in this place participating wholeheartedly in that study so that we can improve the lives of Canadians. I thank the government for its efforts on this.

[Robert Goguen, Conservative, Parliamentary Secretary to the Minister of Justice]

Mr. Speaker, I am pleased to participate in the second reading debate with respect to Bill C-583, an act to amend the Criminal Code (fetal alcohol spectrum disorder).

I welcome the opportunity to listen to the debate and engage in the discussion on the implications that fetal alcohol spectrum disorder, FASD, has on the criminal justice system.

I would like to begin by thanking the member for Yukon for bringing this very important but complex issue forward to attention of the House of Commons. The impact of FASD is a significant issue in his jurisdiction, as it is elsewhere in Canada. I would like to commend him on his leadership in attempting to address the complex issue of FASD and the criminal justice system.

FASD is an umbrella term used to describe permanent brain damage caused by prenatal exposure to alcohol. Although alcohol is not the only substance that can have an impact on a developing fetus, alcohol is the only substance that appears to affect both the physical structure of the brain and the brain's function.

As is the case with many other forms of mental disability, the vast majority of people who live with FASD do not demonstrate any physical characteristics. For this reason, FASD is often referred to an as invisible disability.

Many individuals with FASD suffer from cognitive impairments, such as impaired judgment, poor memory, and impulsiveness. They may also have difficulty linking events with their consequences, which makes it difficult for them to learn from their mistakes.

These impairments are sometimes referred to as primary characteristics of FASD, as they are the characteristics with which a child is born. They are associated with the structural and functional changes in the brain.

Individuals with FASD can also develop what are referred to as secondary characteristics. These refer to the disabilities that may develop as a result of a failure to appropriately and adequately address the primary characteristics. They are more behavioural in nature, and can include mental health concerns, employment problems, disrupted school experience, addiction issues, and trouble with the law.

The brain abnormalities associated with FASD are different for every person with this disability. There can be a significant disparity in the level of impairment among young persons diagnosed with FASD.

Owing to both the primary and secondary characteristics of FASD, individuals with FASD may be at an increased risk of coming into contact with the criminal justice system. Unfortunately, there is scant research on the exact prevalence of FASD in the criminal justice system.

Owing to the presence of individuals with FASD in the criminal justice system and the particular challenges that arise from their involvement in the system, there have been many calls for changes to legislation to specifically address the issue of FASD.

An FASD prevalence study is currently under way in Yukon to evaluate the prevalence of FASD in adult individuals who are incarcerated or on probation in Yukon. This could help to better understand this very complex problem.

The Yukon study will contribute to the understanding of how many people in the corrections system face challenges linked to FASD, mental health disorders, and substance abuse problems. I understand that the Department of Justice Canada has contributed to the development of this study. I look forward to learning about the results in 2016. I think it will provide a valuable contribution to the way forward on this challenging issue.

The Government of Canada has been actively engaged in many programs promoting access to justice for marginalized individuals for many years, including those with FASD. One example I would like to draw to members' attention is the aboriginal justice strategy. This is a federally led program that is cost-shared with the provinces and territories. It has operated since 1991 to support innovative community-based justice programs that help to address the overrepresentation of aboriginal people in the justice system.

The aboriginal justice strategy provides cost-effective alternatives to mainstream justice processing by ensuring accountability for low-level, non-violent offences according to the same principles used in non-aboriginal cases. The strategy provides funding to approximately 275 community-based justice programs that reach over 800 aboriginal communities in all jurisdictions. Many programs provide services specifically related to FASD, and all 275 programs indicate that those exhibiting FASD characteristics are among the clientele using their services.

In addition to the aboriginal justice strategy, the government also funds the aboriginal courtwork program, which works to ensure that aboriginal people in contact with the criminal justice system, whether as accused persons, witnesses, victims, or family members, have fair access to equitable and culturally sensitive treatment throughout the court process.

Each year, over 52,000 aboriginal Canadians in over 435 communities benefit from the access to aboriginal court work services. These services increase the efficiency of the court system, especially in remote communities, and promote outcomes that support healthy, safe families and communities.

By highlighting these programs and projects, I do not wish to give the impression that FASD is an issue that only affects aboriginal Canadians. However, anecdotal evidence indicates that rates of FASD are higher in aboriginal communities for a variety of historical, cultural and other reasons. Therefore, much of the government's response to date on this issue has focused on aboriginal people, but there is wide recognition that FASD has a broader impact.

This broad impact is recognized by Bill C-583, which would apply to all individuals with FASD. The bill proposes to amend the Criminal Code to do three things: it would define FASD in the Criminal Code; it would empower the courts to order FASD assessments for the purpose of bail and sentencing; and it would deem FASD to be a mitigating factor on sentencing if certain conditions were met.

I am sure all members can agree with the general intent of this bill. The goal of providing special treatment to individuals who suffer from a particular type of permanent brain damage, which may impact their level of criminal responsibility, is commendable.

When I read the bill, however, I found it raised a number of important questions that ought to be considered. For example, some people will ask why there is a need to address only FASD and not any other mental disability or mental disorder. Is FASD the only disability that has an impact on an individual's degree of responsibility for the purposes of the criminal law?

I also wonder whether the provinces and territories currently have the capacity to undertake assessments that would be ordered as a result of this bill. The bill would require medical assessments by various experts in the justice system.

Finally, given that courts can already take evidence of FASD into account for the purpose of sentencing but are not obliged to consider it for every case, we must fully analyze the impact of explicitly adding this to the Criminal Code.

In closing, while we support the intention of the bill to find alternative ways to address FASD in the criminal justice system, I believe we need to review and reassess the available options. I believe a study of the subject matter by the appropriate committee could be beneficial to all.

Again, I would like to recognize the efforts of the member for Yukon for raising this important and challenging issue, and I look forward to hearing from other members on the potential impacts of this bill.

I move:

That the motion be amended by deleting all the words after the word “That” and substituting the following: “Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be not now read a second time, but that the order for second reading be discharged, the bill be withdrawn, and the subject-matter thereof be referred to the Standing Committee on Justice and Human Rights and that the committee report back to the House within four months of the adoption of this order”.

[Yvonne Jones, Liberal, Labrador, NL]

Mr. Speaker, I am pleased to rise today to debate Bill C-583. This is a bill I believe strongly in, and I would like to thank my colleague opposite, the member for Yukon, for introducing it. I would also like to acknowledge and thank my colleague, the member for Charlottetown, for his work on this bill and for his leadership in our caucus on this issue. I would hope that all parties and all members in this house can come together in support of this bill, recognizing the place fetal alcohol spectrum disorder has in Canada and in our justice system.

As the member of Parliament for Labrador, and our party's critic in northern Canada, I have seen the sad effects of fetal alcohol spectrum disorder, which causes a number of disabilities, including fetal alcohol syndrome, partial fetal alcohol syndrome, alcohol-related neurodevelopmental disorder, and alcohol-related birth defects.

Many Canadians may not be aware that fetal alcohol spectrum disorder affects our Inuit and aboriginal populations to a much higher extent than the rest of Canadians. As an Inuit woman, and with a large aboriginal community in Labrador, we have been working to recognize those who have been born with this disorder while also working with organizations to prevent prenatal alcohol exposure.

I have been receiving calls and emails from constituents about this issue, especially from those doing important work at the Labrador Correctional Centre in Happy Valley-Goose Bay. They understand the need for our justice system to include the fact that many individuals in the court system suffer from fetal alcohol spectrum disorder.

This past September, on International Fetal Alcohol Spectrum Disorder Awareness Day, the FASD Newfoundland and Labrador Network continued to raise this issue, as it does every day of the year, in my home province. I would like to thank them for their dedication. They know better than anyone that children affected with FASD have significant challenges in school and especially with other functions they are expected to participate in. The challenges due to brain damage resulting from FASD have certainly wreaked havoc. The lack of support for these children then leads to mental health issues and addictions and makes it difficult for them to hold down steady jobs.

One of the biggest issues is a lack of screening in many parts of the country or a national standard so that our health care and education systems are aware of persons who suffer from FASD and can take appropriate measures to offer special assistance. We cannot let Canadians fall through the cracks and go on to become societal outcasts.

Fetal alcohol spectrum disorder affects 2% to 5% of the provincial population, or between 10,000 and 25,000 people. Because of the higher magnitude with which the aboriginal population suffers from this disorder, I know that Labrador is more deeply affected by FASD than other areas of our province of Newfoundland and Labrador. In northern Canada, much more needs to be done to understand and prevent the disorder. In Nunavut, Labrador, Nunavik, and the lnuvialuit regions, we must work with the high-risk communities to make immediate change and help prevent more children from being born with FASD.

The Labrador Inuit Health Commission, which works with the Nunatsiavut government in Labrador, has done good work raising awareness about prevention and in educating local communities about this disorder by holding workshops and other information sessions, distributing posters, holding open houses, going into schools, and using other community outreach methods. It has done and continues to do tremendous work.

The health commission is working hard as well to address FASD, and it deserves to be commended for all the work it is doing, not only in our province but also across the country. The Nunatsiavut government has taken steps to ensure that schools in towns such as Hopedale and Nain can identify sufferers of FASD and offer a more tailored education experience to meet the needs of the students.

This bill would amend section 2 of the Criminal Code of Canada by adding the following:

“fetal alcohol spectrum disorder” or “FASD” refers to any neurodevelopmental disorder that is associated with prenatal alcohol exposure, 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 may include....

This is very important because these items are the fundamental piece of the bill, and the issue that we continue to deal with. The amendment continues to say that the symptoms:

...may include

(a) impaired mental functioning,

(b) poor executive functioning,

(c) memory problems,

(d) impaired judgment,

(e) inability to control impulse behaviour,

(f) impaired ability to understand the consequences of one’s actions, and

(g) impaired ability to internally modify behaviour control;....

As this list indicates, this is a very serious disorder that causes some very serious symptoms. This bill would help to recognize this when people who are before the courts suffer from fetal alcohol spectrum disorder. Clearly, our judgments must take these symptoms into account when sentencing individuals for their actions. It is no surprise that sufferers of FASD have difficult challenges during all stages of the criminal justice system.

I will elaborate on the above points briefly and how they face challenges while dealing with the courts.

As my colleague, the member for Charlottetown, has pointed out, poor memory and memory loss when a person is unable to recall prior events or parts of events is a huge issue. If individuals legitimately cannot recall how events have unfolded through no fault of their own, these individuals may end up incriminating themselves in court or during interrogation, as they become vulnerable to accepting events as they are presented to them.

An impairment in mental functioning, judgment, and reasoning leads people with FASD to sometimes make the wrong choices and end up running into conflicts within our legal system. This must be taken into account when a crime is committed by someone suffering from fetal alcohol spectrum disorder. These and other symptoms of FASD outline just how delicate a situation can be when dealing with a person who is suffering from this disorder while going through our criminal justice system.

When I talk to people who work in the correctional system in ridings like mine, I hear from them about their regularly seeing clients who suffer from FASD. They understand how this disease impacts these people's judgment, memory, and understanding of events around them. Many times they have expressed their concerns to me about these individuals who are experiencing FASD and going through the legal system. I could talk extensively on FASD in particular, simply because I deal with this issue on a daily basis within my own riding. I know the delicacy of this issue. I know how important it is to understand it from a public perspective, but also to provide education about it in our communities so that we can work harder to try to prevent this disease that, as we know, is preventable.

The House resumed from June 5 consideration of the motion that Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be read the second time and referred to a committee.

Fetal Alcohol Spectrum Disorder

[Earl Dreeshen, Conservative, Red Deer, AB]

Mr. Speaker, the second petition requests that Parliament support Bill C-583 on fetal alcohol spectrum disorder.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

If my six Conservative colleagues are so concerned about human rights issues, I invite them to vote in favour of my bill. The vote will probably be held next December. Let's band together to save Bill C-583. I invite them to read that bill, which is extremely interesting. In my opinion, the bill is not unconstitutional, but we can debate that in the House of Commons.

My question is for Mr. Kirkup.

A woman testified this morning and did a very nice job. She analyzed the Bedford ruling and focused on section 121.

I do not know if this means anything to you. The Supreme Court of Canada stated the following:

Gross disproportionality under s. 7 of the Charter does not consider the beneficial effects of the law for society. It balances the negative effect on the individual against the purpose of the law, not against societal benefit that might flow from the law. As this Court said in Malmo-Levine....

The court said that

the balance must always go to the individuals at risk and touched directly by the legislation.

A lawyer also indicated that

it's constitutionally too broad based on the fact that there's no definition whatsoever of what is publicity, what is a public space, what is a commercial enterprise.

Can you comment on those two statements, which were made by witnesses who appeared before this committee?

Criminal Code

[Claude Gravelle, NDP, Nickel Belt, ON]

Mr. Speaker, first I would like to thank my colleague from Yukon for introducing this bill. I would like to talk about an important issue regarding individuals with fetal alcohol spectrum disorder.

The purpose of Bill C-583 is to protect those vulnerable individuals born with fetal alcohol spectrum disorder. The enactment amends the Criminal Code to add a definition of fetal alcohol spectrum disorder and to establish a process for assessing individuals who are involved in the criminal justice system and who it is suspected suffer from fetal alcohol spectrum disorder.

It requires the court to consider, as a mitigating factor in sentencing, a determination that the accused suffers from fetal alcohol spectrum disorder and manifests certain symptoms.

Fetal alcohol spectrum disorder is an umbrella term used to describe any individual who suffers from a range of effects, including physical, mental, behavioural, and cognitive, and is caused by mothers who consume alcohol during pregnancy. Furthermore, it includes those who are diagnosed with fetal alcohol syndrome, partial fetal alcohol syndrome, alcohol-related neurodevelopment disorder, and alcohol-related birth defects.

As Sheila Burns explained in the Toronto Star:

Like Alzheimer’s, fetal alcohol spectrum disorder is an invisible, brain-based disability that impacts thinking. Individuals may appear capable but typically have significant limitations. They have difficulty recalling past experiences, anticipating consequences, adapting to new situations, solving problems and interacting socially.

Fifty per cent of those with fetal alcohol spectrum disorder meet the current definition of mental retardation.

The behavioural characteristics begin to develop in adolescence and can become more apparent in the adult years. These behavioural characteristics have been compared with those in autism, depression, and bipolar disease. Similarities include blaming others for one's mistakes and being emotionally volatile. People often exhibit wide mood swings that can escalate in response to stress, and they often do not follow through on instructions. As with other brain-based disabilities, the Criminal Code must also ensure that those with fetal alcohol spectrum disorder are provided an assessment on a case-by-case basis.

Fred Headon, the president of the Canadian Bar Association, has expressed his support and has emphasized the need for this amendment. He has called on the federal government to introduce a bill to give more authority to judges when dealing with an accused suffering from fetal alcohol spectrum disorder.

Statistics indicate that 60% of individuals with a diagnosis of fetal alcohol spectrum disorder have had difficulties with the law. With this in mind, the judges require access to tools to identify fetal alcohol spectrum disorder and the authority to order an assessment if needed.

During a meeting with Yukon Justice Minister Mike Nixon and other politicians in December, Mr. Headon said:

If we can get a recognition that the tools are required, then at least... [t]hat could mean making sure that they have the proper supports while they are there, making sure there are resources available to them while they’re in custody. It can also mean things like, when the prison discipline system is being invoked, making sure their condition is accounted for when discipline is being handed out and they’re getting fairly treated at that stage as well.

Research shows that the incidence of fetal alcohol spectrum disorder is considerably higher among aboriginal peoples and in rural, remote and northern communities.

I have personally met with families dealing with fetal alcohol spectrum disorder and heard their stories. Shelley adopted two young children with fetal alcohol spectrum disorder and describes how it affects their daily life.

Shelly adopted two young babies, a girl and a boy, who shared the same birth mother. At the time of the adoption, she was not aware that these two innocent lives had fallen victim to a horrible disorder caused by their mother drinking alcohol during pregnancy. Her children are two of 3,000 babies born each year with fetal alcohol spectrum disorder. Her daughter has been diagnosed with partial fetal alcohol syndrome, and her son will soon be diagnosed with an alcohol-related neurodevelopment disorder. In most cases, there are very few physical distinctions, and the impacts on their brains and overall mental development are not visible until their adolescent and teenage years.

Shelley has decided to spend countless hours to advocate for better support, education services, and understanding. She has been actively attending conferences, gaining media support, and teaching her community. Shelley's encounter with fetal alcohol spectrum disorder was unforeseen and continues to be a difficult journey. However, it was one well worth it. Her story tells us that intervention is needed yesterday.

We spoke about 60% of kids being affected by this disease. Imagine if we could prevent 60% of these kids from ending up in the justice system. If we could reduce that to 30%, we could use the money that is saved in the justice system to apply to research and to help the families that have difficulties with these children.

[David Wilks, Conservative, Kootenay—Columbia, BC]

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.

[Ève Péclet, NDP, La Pointe-de-l'Île, QC]

Mr. Speaker, I am very pleased to be able to rise in this House today to speak to Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder).

I think it is important to consider the vulnerability of other people and everyone’s particular circumstances in determining sentences. Our society must recognize that each person has a different history and a different background and that we must take this into consideration in our legislation and in our justice system. Unfortunately, certain communities and certain people are much more vulnerable than others. My intention is not to point fingers at anyone today; I am just making an observation.

We are certainly going to support this bill and refer it to committee. However, I would very much like to express my dismay with the federal government and its virtually non-existent will to provide assistance to the communities that are unfortunately suffering from this kind of problem.

Let us talk about aboriginal communities. For the past few months, we have been asking the government to set up a commission of inquiry into murdered and kidnapped women and girls, but it has always refused to take any action on this. I think it is important to make a connection between these two issues today.

Since it came into power, this government has marginalized aboriginal communities and others in northern Canada that are more remote, abandoning them completely.

I would like to congratulate the member on introducing this bill, which is, I hope, an initiative that will reverse the direction that has been imposed by the Conservatives’ repressive criminal justice agenda. All of their bills clearly show us that the notion of rehabilitating offenders rather than punishing them does not exist in their Conservative ideology.

I am convinced that a fair system punishes those who have committed an offence, but at the same time takes social factors into account in its decisions, considering the impact that these social factors may have on some people. Our society has a duty to consider that not everyone has the same chances in life and to restore that balance.

As my colleague said, fetal alcohol spectrum disorder affects 1% of the Canadian population, that is, one out of every 100 people. The spectrum disorder may have serious consequences on the people it affects. There are birth defects linked to the consumption of alcohol during pregnancy. For instance, these defects may involve only physical malformations, or they may involve damage to the brain or the central nervous system, causing cognitive, behavioural and emotional deficits.

It is important to understand, and my colleague expressed it very well in his speech, that a person suffering from this spectrum disorder may not react in the same way as other people in a particular situation, or will perhaps not be able to tell the difference between right and wrong.

Our justice system proceeds from the assumption that an individual’s guilt makes him understand that he has committed an offence, for instance. People with abnormalities linked to these types of disorders may not read a given situation in the same way. For our justice system to be fair and balanced, it is important to take all of these elements into consideration in sentencing.

The intent of Bill C-583 is to define what fetal alcohol spectrum disorder involves. This is extremely important. This principle is already recognized in certain rulings, as well as in Criminal Code section 718.2, but the recognition is implicit.

This bill defines fetal alcohol spectrum disorder. In addition, it establishes and informs the court that it may be considered a mitigating factor in sentencing.

The bill makes it possible to establish a procedure whereby a court can order the assessment of a person who it suspects may suffer from fetal alcohol spectrum disorder. This will make things easier for the court in determining a sentence, assessing an offence or convicting an individual.

At the time of sentencing, it is very important that the court consider all of the criteria and all of the circumstances that may have led an individual to commit an offence. This is why the bill is a light at the end of the tunnel of the Conservatives’ repressive and ideological agenda.

Sentencing an individual who has committed an offence is part of the initial assessment by a criminal justice system, but we must acknowledge as a society that these individuals are also part of society and that they must be reintegrated into it. We cannot merely sentence them to a term in prison; we must also enable them to return to society and even encourage them to do so. For an individual who suffers from a disorder he has no control over, it is important to ensure that the courts take this into consideration in determining his sentence, so that he is allowed to proceed with treatments.

My colleague referred to a conference in Vancouver that he attended, where he met people who suffer from this spectrum disorder. This shows that they are able to return to society. They are not necessarily criminals, as my colleague said. Even if they are, they are people who can doubtless be citizens like everyone else. As a society, it is our duty to inform the court that it must give these types of mitigating factors due consideration.

The Gladue principle comes from a landmark ruling by the Supreme Court that determines the significance and the scope of paragraph 718.2(e), which in fact says that family situation and background must be taken into consideration. Criminal Code section 718.2 places emphasis on the fact that even if an individual has committed an offence and is found guilty, the sentence that is imposed must take his family situation and background into consideration, for instance, if there is a history of violence or drugs and particularly if he suffers from fetal alcohol spectrum disorder.

I hope this bill will be the first in a long line of bills that will mean that the Conservatives abandon their repressive and ideological criminal justice agenda and finally understand that an ounce of prevention is worth a pound of cure. There must be an investment in our communities so that people no longer suffer from these kinds of disorders. We need to rehabilitate these people, not just take a repressive approach.

I certainly hope my colleague can make the Conservative government listen to reason.

[Ryan Leef, Conservative, Yukon, YT]

moved that Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder), be read the second time and referred to a committee.

Mr. Speaker, it is a pleasure to rise and speak to Bill C-583.

However, before I do that, I would like to take one more opportunity to express my sincerest condolences to the families of the members of the Royal Canadian Mounted Police who lost their lives yesterday. I would also like to express, at least from my point of view and the point of view of the member for Kootenay—Columbia, who is a former member of the Royal Canadian Mounted Police, that our thoughts and prayers are with the members of the RCMP, their families, and the entire community of Moncton. We hope that there is a fast and safe resolution to the capture of the suspect.

Before I begin on Bill C-583, an act to amend the Criminal Code in respect to fetal alcohol spectrum disorder, there are a few requisite messages of thanks that I need to put out there. First and foremost, I must thank Rod Snow and Heather MacFadgen of the Yukon division of the Canadian Bar Association. Both of them spent a great deal of time and effort, long before this crossed my radar as a member of Parliament, in diligently forwarding the cause of people with FASD, particularly as it relates to justice issues and what we can do. My gratitude goes out to them for helping it get this far and for their continued effort and support.

I would like to thank the Options for Independence Society in the Yukon, which has created a great social support network, providing affordable and available housing. It has also created the appropriate and needed social support networks in our territory for people living with FASD to make sure, in the first instance, that they do not find themselves in conflict with the law.

Of course, I must thank the Fetal Alcohol Syndrome Society Yukon, which has done a lot of the heavy lifting on this file to make sure that people who are disadvantaged and living with FASD find the opportunities that they need and clearly deserve in our society.

There are a host of other groups and organizations nationally, internationally and here in the North American continent that have reached out to me. A total of some 1,500-plus stakeholders have reached out to me directly in my office to offer guidance and suggestions, and just to be there to support what I am trying to achieve in Bill C-583. To each and every one of them, too many to list, I give my thanks.

I would also like to extend my gratitude to the legislators of the Yukon Territory and the Northwest Territories, both of which recently passed unanimous motions calling on the Government of Canada to support Bill C-583. I would say that it was done in an admirable and non-partisan manner.

In the Yukon, the motion was tabled by Liz Hanson, the leader of the opposition, and supported by Minister Nixon, the hon. minister responsible for justice in the Yukon. I appreciate their ability to come together in a non-partisan fashion and provide support and important information to the Yukon through their legislature about the challenges of people living FASD as they relate to the justice system.

Getting to Bill C-583, what does my private member's bill propose? It would do three fundamental things.

It would define FASD in the legal context. I say that not as a word of caution, but as a word of explanation. Sometimes we have social definitions and sometimes we have medical definitions of words that do not always mirror each other or connect properly. What I have tried to do in Bill C-583 is come up with a definition that would meet the test of the legal mind and the legal definition. Sometimes, there is a little bit of variance between social definitions and medical definition, but importantly, I have seen broad public support, including group and organization support, for the definition that I have arrived at.

That is an important step, because in the absence of a definition, the courts are very much limited in their judicial notice of being able to account for what I will get into as somewhat of an explanation for criminal conduct. It is not an excuse, and I will talk about that in a little more detail as I get into subsequent sections of my bill.

The first part is how the bill defines FASD. Second, it would allow the court to order assessments where they have reasonable grounds or evidence to believe that FASD may be present in an accused, and that it contributed to the offence or criminal conduct.

Finally, the bill seeks to allow the court the discretion to consider FASD to be a mitigating circumstance in the sentencing phase. I will touch on that just a little bit, to explain any confusion that might exist among the general public about what mitigation means.

It is important to understand that mitigation is not absolution. It is not an excuse for poor behaviour, but it is an explanation. I am going to talk about some of the symptoms of FASD that make this bill warranted and reasoned when we consider diminished responsibility and mitigation, and why mitigation could be so important for people and for the courts to have with regard to FASD.

One could ask why we would choose FASD, and so I will give some concrete facts on that.

FASD is one of the leading causes of brain disorders in our country, affecting nearly one in a hundred Canadians at birth. That is an alarming rate. Right now, we know that nearly 60% of people living with FASD will at some point run into conflict with the law, which is also an alarming figure.

I want to be clear that FASD does not instantly and immediately equate to criminality. Indeed, it does not. I was at a conference not too long ago in Vancouver where I met wonderful people who live with FASD day to day. Undoubtedly they have challenges, but they are contributing. They are working hard in our society. They are living with these challenges and they are able, through a tremendous amount of personal, family, and community support, to keep away from any conflict with the law, but they are not free from challenges.

Indeed, I heard the story of one young lady who is an intelligent, well-spoken gal. She talked at this conference immediately before me. I must say that she did a better job of addressing a huge audience of 500 people than I did. It was remarkable to watch. However, she talked about some of the challenges she faced.

She talked about going to work in the morning and forgetting her keys and then returning home to get her keys, but then forgetting why she had come home. Then, when she finally realized what she was looking for, her keys, she forgot what she needed her keys for. She had to slow down and calm herself and deal with that confusion and frustration of not being able to really grasp exactly what she needed to get done. Eventually, through trial, challenge, and tribulation, she would get back on track with what she needed to do that day.

This is just one example of the challenges of people living with the real challenges of fetal alcohol spectrum disorder.

I am going to read something I think is relative and poignant to the debate. It came to me from a Yukoner, Chief Ray Jackson, who is the former chief of the Champagne and Aishihik First Nation, and Jenny Jackson, who wrote this book called, Silent No More! A Poetic Voice Breaks the Silence of FASD. It is about Crystal, who was kind enough to sign this book for me, and she gives a summary about one of the poems in the book. She writes:

This is a brief summary of how people might view their differences while longing for acceptance with FASD.

As an explanation for the poem, she says:

Everything is new each day because it is due to the lack of understanding of consequences. Every day is a new day. Yesterday is gone forever and people are living in the moment. There is an awareness of the different worlds, but people are inviting others to come and join them and they want them to accept them.

The poem reads:

We are living in our world where everything is new each day,
Again, we'll try to find our way,
A world that has its axis tilted to the right
A world that has no time and needs are out of sight
Come into our world
Be patient and kind, forgiving and blind
Tell us we are all right

I think the poem is saying that we need to enter this discussion. We need to understand and appreciate the challenges of people living with FASD.

I would offer that, as a government, we have been focused on a couple of things. We have been focused on making sure that perpetrators of crime are held to account; and that we have a solid, sound justice agenda to make sure our citizens are protected and public safety is paramount.

I think we have done an exceptional job of that. I think we have done a great job of making sure that people who are out to harm people in our society are held to account, that our citizens are protected in this country, and that any deviation from the law that is heinous in nature is reflected in the community's abhorrence of that behaviour.

At the same time, we have run an additional agenda: taking care of victims of crime, supporting our victims of crime, making sure that their voices are heard loud and clear. If we start from the position that people are indeed victims first, if they are born with a neurological development disorder because of exposure to alcohol before they were born, our government has made a clear commitment to make sure we protect victims first in our justice agenda. I would posit to the entire House, to every one of my hon. colleagues, that if we start from the position that people with FASD are victims first, then we are reaching a point where we can have a balanced discussion about this bill.

Undoubtedly, there is the challenge that a person then breaks the law and needs to be held to account for the breach in law. How do we deal with that? How do we make sure we balance public safety and the need for rehabilitative efforts and corrective measures to take place in a conventional world when we have a non-conventional client, when we have client who does not necessarily understand right or wrong in the same fashion as we do, or benefit from the same sentencing, sanctioning, or denunciation as we would as everyday citizens within the justice system.

I talked about it and touched on it a bit, that my bill is not absolution for misconduct; it is mitigation. It is not an excuse for bad behaviour, but rather an explanation. How does mitigation fall into this question mark and how do we maintain public safety when we do that?

My bill, in the mitigation section, talks about the very real elements, the symptoms of FASD, that could lead one down the path of criminality. Examples are the inability to understand the consequences of one's actions and the inability to control impulsive behaviour. Those things have direct and real links to criminality. In fact, those symptoms, statistically, in our justice system, account for the over 90% of administrative type justice offences that a person with FASD would find themselves in. What are those kinds of offences? They are breach of probation, breach of conditions, failing to show up for work as part of their release conditions because they cannot manage their schedule and do not necessarily understand those terms and conditions, because as is said in the poem, each day is a new day. They have to start a new day fresh and remind themselves of what they have to do. Sometimes that breaks down to not just days but hours and sometimes even minutes.

To balance public safety, I have written into my bill that the court shall consider to be a mitigating circumstance where those symptoms contribute to the offence, because as I said, FASD does not instantly equate to criminality. It is not as simple as to say people have FASD and therefore they are going to involve themselves in criminal conduct. That is absolutely not true. However, what will happen, or can happen, disproportionately, is that FASD, where those symptoms manifest themselves out at different times and at different places, can contribute to criminal behaviour, and we need to take that into account.

Mr. Speaker, I know my time is up and I could probably stand here and talk for another 20 minutes about this. I look forward to questions and comments from my colleagues on the bill, where I will be able to address some of the issues that are raised. However, I will leave members with this thought.

In our criminal justice approach, it has been a long-held defence that people who consume alcohol and behave in a particular way because they are intoxicated can offer that up as a reasoned defence. A 20-year-old who gets drunk and acts like a 15-year-old can offer up that excuse in law. However, someone who has been exposed to alcohol and has a neurological brain disorder and has an operating mind of an 8- to 15-year-old, in adulthood, cannot offer that up as a reason. That should generally just shock the consciousness of Canadians and us as members of Parliament.

[Alexandre Lavoie]

Bill C-583 amends the Criminal Code so that fetal alcohol spectrum disorder is considered as a mitigating factor in sentencing an accused suffering from this disorder.

The bill does not concern a question that is outside federal jurisdiction. It does not clearly violate the Constitution Act. It does not concern a question that is substantially the same as one already voted on by the House of Commons. It does not concern a question that is currently on the order paper or notice paper.

[Ryan Leef, Conservative, Yukon, YT]

moved for leave to introduce Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder).

Mr. Speaker, it is my honour to rise today. I should thank the member for Sault Ste. Marie for seconding this bill on my behalf.

As mentioned, it is an act to amend the Criminal Code of Canada in respect to fetal alcohol spectrum disorder. Specifically, this bill would define fetal alcohol spectrum disorder and allow the courts to order assessments and to consider mitigating circumstances where conditions of FASD contribute to the offence.

I would like to thank all the groups and organizations in the Yukon Territory for demonstrating their leadership on FASD in our territory and right across Canada, in particular FASSY, Options for Independence, the Yukon government, the Yukon division of the Canadian Bar Association, Rod Snow, and Heather McFadgen for all their support.

(Motions deemed adopted, bill read the first time and printed)