1.1 COMMITTEE MANDATE AND CONTEXT OF THE STUDY

Each year in Canada and in other countries around the world, children are born with permanent brain injuries resulting from prenatal alcohol exposure. These children suffer from complex behavioural and cognitive problems of varying severity – problems that will persist throughout their lives, be compounded by inadequate support and could lead to involvement with the criminal justice system.

The criminal justice system is ill equipped to identify and respond to people suffering from fetal alcohol spectrum disorder (FASD). Many of the witnesses who appeared before the House of Commons Standing Committee on Justice and Human Rights (the Committee) emphasized that research into FASD is forcing us to challenge the normative assumptions of criminal law, namely that “individuals are responsible for their own actions, that they can control their behaviors in keeping with societal expectations and that they can learn from and be deterred by previous experience.”[1]

It was primarily to address this legal issue and to prevent injustice that Ryan Leef, Member for Yukon, tabled a bill in the House of Commons on 5 June 2014 entitled, Bill C-583, An Act to amend the Criminal Code (fetal alcohol spectrum disorder). Bill C-583 had three main objectives. The first was to add a definition of FASD to the Criminal Code (the Code). The second was to enable the courts to order an assessment of an accused by a qualified person to determine whether the accused suffers from FASD and, if so, to indicate the relative severity of the disorder. The amendment was based on section 34 of the Youth Criminal Justice Act, which allows the courts to require an assessment of a young person who suffers from a physical or mental disorder, including FASD.[2] The third was to establish FASD as a mitigating factor in sentencing in cases where it has been demonstrated that FASD symptoms contributed to the commission of the offence.

On 26 November 2014, Mr. Leef withdrew Bill C-583 from the Order Paper at second reading in the House of Commons, and its subject matter was referred to the Committee for study. The motion passed by the House during debate reads as follows:

That 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Code (fetal alcohol spectrum disorder), be not now read a second time but that the Order be discharged, the Bill be withdrawn from the Order Paper, and the subject matter thereof be referred to the Standing Committee on Justice and Human Rights and that the Committee report back to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.

Given the Committee’s workload, the House of Commons granted it a 45-day extension on 24 March 2015 in order to complete its study.

1.2 THE COMMITTEE’S APPROACH AND STRUCTURE OF THE REPORT

The Committee began its study on 25 February 2015 and held four meetings on the subject, during which it heard from 13 witnesses. These witnesses included the sponsor of Bill C-583, representatives from Aboriginal Legal Services of Toronto, the Centre for Addiction and Mental Health, the Fetal Alcohol Syndrome Society of Yukon, the Canadian Bar Association, Alberta Health Services, the Office of the Correctional Investigator, the Society of Obstetricians and Gynaecologists of Canada, the Assembly of First Nations, and the Fetal Alcohol Spectrum Disorder Group of Ottawa, as well as from Rodney Snow and Jacqueline Pei.[3]

This report summarizes the information gathered by the Committee during its hearings and through briefs submitted during the study. The report is divided into five chapters, the first serving as an introduction to the subject. Chapter 2 provides an overview of the scientific knowledge surrounding FASD, its underlying causes, the many disabilities associated with it, and its prevalence in Canada. Chapter 3 looks at the impacts of FASD on the criminal justice system and presents data on the prevalence of FASD in the justice system overall and in the correctional population in particular. The chapter also explores how a person affected by FASD experiences the criminal justice system, as an accused, a victim or a witness. Chapter 5 addresses the courts’ response to FASD, focusing on the Criminal Code provisions concerning mental health problems and the impact of an FASD diagnosis on sentencing. The last chapter contains the Committee’s comments and recommendations related to the key issues raised by witnesses as they discussed the complexity of FASD from a range of perspectives – health, social, legal and economic. This chapter also examines the three objectives of Bill C-583, FASD prevention and the need for more research.

1.3 DIVISION OF POWERS

In January 2012, the federal, provincial and territorial ministers responsible for justice and public safety agreed that “the response of the justice system to those with FASD continues to be a priority.” They also noted the importance of prevention and directed “FPT officials to continue to work together to explore how to best respond to individuals with FASD.”[4]

An understanding of the roles and responsibilities of the federal, provincial and territorial governments is needed to fully appreciate the environment in which FASD activities take place. In Canada, health, justice and correctional services are areas of shared jurisdiction between the federal government, the provinces and the territories.

1.3.1 Health

Health was traditionally considered to be a purely private matter. For that reason, the Constitution Act, 1867 did not specifically assign jurisdiction over health.[5] Today, the federal government has a number of responsibilities related to health, but the provinces are responsible for delivering health care to most Canadians.

In 1982, the Supreme Court of Canada ruled that health “is an amorphous topic which can be addressed by valid federal or provincial legislation, depending in the circumstances of each case on the nature or scope of the health problem in question.”[6] Jurisdiction over health is therefore derived from a number of subjects listed in the Constitution Act, 1867.

Provincial jurisdiction over health is related primarily to the power to make laws regarding “the Establishment, Maintenance, and Management of Hospitals” (s. 92(7)), “all Matters of a merely local or private Nature in the Province” (s. 92(16)) and “Property and Civil Rights in the Province” (s. 92(13)). These provisions are seen as assigning the provinces primary authority over health, including hospital or health care services, health insurance, the training of health care professionals and the practice of medicine.[7] Medical assessments generally fall under provincial jurisdiction except in the case of federal populations such as offenders incarcerated in a penitentiary.

The areas involving health in which the federal government is more directly involved are derived from three constitutional powers: the spending power,[8] the power to make laws for the peace, order and good government of Canada (introductory paragraph to s. 91), and, in particular, the criminal law power (s. 91(27)).[9] According to the Supreme Court of Canada, legislation concerning criminal law must pursue an objective that is in the public realm, such as public peace, order, security, health or morality.[10]

1.3.2 Criminal Law

Under the Constitution Act, 1867, Parliament has exclusive jurisdiction over criminal law and procedure (s. 91(27)), while the provinces have jurisdiction over the constitution of provincial courts and the administration of justice (s. 92(14)). Federal authority over criminal law has been broadly interpreted by the courts.[11] In addition, [translation] “jurisprudence has recognized that criminal law has a valid role to play in prevention, either by protecting the majority against individuals who present a significant risk to public safety or, inversely, by protecting vulnerable groups.”[12]

1.3.3 Corrections

Responsibility for correctional services is divided between the federal government and the provincial and territorial governments, on the basis of the sentence imposed by the court. Adult offenders sentenced to prison terms of two years or more are the responsibility of the federal government, while those sentenced to a term of less than two years are the responsibility of the provincial or territorial governments. Provincial and territorial correctional services are also responsible for persons being held in remand while awaiting trial, offenders serving conditional sentences and young offenders.

Correctional Service Canada is responsible for the care and custody of offenders sentenced to a federal term of incarceration. It is also mandated to supervise offenders on conditional release and offenders subject to long-term supervision orders.

1.3.4 FASD and the Federal Government’s Role

According to a report prepared by Health Canada’s Evaluation Directorate and the Public Health Agency of Canada:

There is a leadership role for the Government of Canada and the Public Health Agency of Canada in relation to FASD. The Department of Health Act and the Public Health Agency of Canada Act guide the Public Health Agency's roles and responsibilities for the prevention of illness. The Minister of Health has a broad mandate to protect Canadians against health risks. Under the leadership of the Chief Public Health Officer, and in collaboration with its partners, the Public Health Agency is mandated to lead federal efforts and to mobilize pan-Canadian action in preventing disease and injury.[13]

Other federal departments, such as Justice Canada and Aboriginal Affairs and Northern Development Canada, also have a role to play in the national approach to addressing FASD. Certain federal organizations are mandated to provide primary health care to specific client groups. For example, Correctional Service Canada is responsible for delivering health care to inmates confined to a penitentiary, and Health Canada directs funding for FASD programs and services serving eligible First Nations and Inuit communities.