The Liberals are looking to introduce a bill on fetal alcohol spectrum disorder after a near identical bill presented by Yukon Conservative MP Ryan Leaf was stalled at committee for further study to define the disorder.
A brain disorder caused by mothers drinking alcohol during pregnancy, FASD is believed to be the leading cause of mental disability in Canada, and is particularly prevalent in northern communities.
Leaf’s bill, C-583, included conditions to create a legal definition of the disorder, establish a procedure for assessing the disorder, and have the courts consider it a mitigating factor in sentencing.
The Liberal bill, to be introduced by Justice Critic Sean Casey in the coming days, in many ways functions similarly to mitigating factors that are contained in the criminal code that include the Gladue principle, which requires the court to take into account alternatives to incarceration, in particular for First Nations people, who have a high incidence of FASD.
“This is in some sense along the same lines of someone who has been assessed with fetal alcohol disorder and is more likely to come into contact with the Canadian criminal justice system, and the fact they have this disorder should be relevant to sentencing,” Casey said.
He said it was “the broad numbers” and the prevalence of FASD in northern communities that prompted him to propose the bill.
“When you look at the over-representation of aboriginal offenders within the prison system and then when you look at the disproportionate impact of this disorder within aboriginal communities, it was the big numbers as opposed to specific cases that drove it,” he said.
Casey’s bill keeps the first three recommendations of Leaf’s legislation and adds conditions that will allow judges to direct additional orders beyond parole and make special provisions for an individual who is placed in the jail system.
“Judges can order an assessment now for youth and they are borrowing it so it can apply to adults,” Rod Snow, a former president of the Canadian Bar Association, said of Casey’s bill.
The way the justice system currently handles the disorder is counter to the goal of rehabilitation, explains Snow. People with FASD are also more likely to breach conditions of parole, he adds.
In the U.S., the State of Alaska passed legislation nearly two years ago that allowed judges to be flexible in sentencing those suffering from the condition, especially in cases where judgment was impaired during a crime. However, judges are not required to apply it in all cases.
Both the Canadian Bar Association and the American Bar Association have called for action on FASD.
Snow recalled that at a conference hosted by the Canadian Bar Association in 2010, then-Justice Minister Rob Nicholson described FASD as a “huge problem” in the criminal justice system.
“The fact he did that on the record is quite significant,” he said. “It is not easy. It is a challenging problem.”
Kaven Baker-Voakes is a freelance reporter based in Ottawa.