We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD), including:

  1. Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD.
  2. Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD.
  3. Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community.
  4. Adopting appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety

Indigenous Watchdog Status Updates

Current UpdateAug. 17, 2020NOT STARTED
Previous UpdateJune 15, 2020NOT STARTED

Why “Not Started”?

Government’s updated response (Sept. 5) removes all reference to FASD and broadens response to encompass all mental health issues. Despite quite detailed and specific recommendations from the Canada FASD Network (FASD and the Criminal Justice System) the Federal, Provincial and Territory governments have not enacted any legislative and/or regulatory actions to address the identified issues. There has been some progress:

  • Manitoba has established a court specifically for people with FASD.
  • Saskatchewan has implemented the Navigator-Advocates: Integrated Supports for Justice-Involved Indigenous Youth and Adults with Fetal Alcohol Spectrum Disorder (FASD).
  • Bill C-75 – “An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts” received Royal assent on June 21, 2019. The Act would require that particular consideration be given to the unique circumstances of members of vulnerable populations when imposing bail conditions.
  • Bill C-375 – An Act to amend the Criminal Code – (pre-sentence report) began second reading in the Senate on April 30, 2019.  If passed, Bill C-375 would require mental health information such as Fetal Alcohol Spectrum Disorder, to be included in pre-sentence reports.

Some non-legislative actions at the provincial and territory level where the focus is more on prevention programs, diagnosis and treatment services and support for individuals suffering from FASD.

Significant deletion from Government response:

Deleted specific references to “Fetal Alcohol Spectrum Disorder including in pre-sentence reports.

Other Government Responses to FASD

British Columbia

Nine provincial government ministries – including Justice – were involved in the development of “A 10-year Provincial Plan (FASD – Building on Strengths” which demonstrates government’s commitment to a collaborative, cross-ministry approach. The FASD Plan serves to guide the efforts of provincial ministries and regional and community-based partners. It has fostered the coordination of these organizations in addressing the complexities of FASD prevention, improving the early identification of FASD, and supporting those living with this disability and their families in BC.

Examples of programs in Ministry of Justice

In 2005, Ministry of Children and Family Development provided funding for the Youth Justice FASD Program provided by the Asante Centre in partnership with PLEA Community Services Society of BC. It provides high-risk youth diagnosed with FASD, who are before the courts, with effective alternatives to custody. In addition, the program provides individualized assessments, intensive support and supervision, residential placements and post-program family follow-up services.

The Corrections Branch of the Ministry of Public Safety and Solicitor General has implemented enhanced training for probation officers who supervise adult offenders affected by FASD. The curriculum covers 14 hours of comprehensive online content that assists probation officers to recognize and more effectively manage adult offenders affected by FASD. The Branch has also implemented training specific to working with adult women offenders that highlights the importance of developing intervention strategies with women offenders who are at risk of use during pregnancy. Additionally, since 2004, a resource guide called “FASD: What every probation officer needs to know”, developed by a Corrections Branch probation officer, has been distributed to all adult probation officers in B.C.

https://www2.gov.bc.ca/assets/gov/health/managing-your-health/fetal-alcohol-spectrum-disorder/fetal_alcohol_spectrum_disorder_building_strengths.pdf

Alberta

FASD 10-year Strategic Plan

2008 While FASD has a high profile in the operational plans of some Alberta government ministries serving children and youth, there is a gap in the plans to address FASD for ministries serving adults, regional bodies, agencies and boards and commissions.
9 provincial government ministries – including Justice – and other agencies developed a 10-year FASD Strategic Plan to design, administer and develop prevention programs, assessment and diagnosis services, and support for those affected by the disorder coordinated through 12 FASD Service Networks in Alberta.

Aboriginal Outreach
With a goal to ensure FASD outreach services are inclusive of the local Aboriginal population, the Central Alberta FASD Service Network has formed an Aboriginal subcommittee as the first step in creating a hub of FASD supports and services designed for the specific needs of Aboriginal communities.

By working together with and engaging Aboriginal stakeholders to clarify their needs and opportunities for developing comprehensive FASD services, a culturally relevant support model is being developed to support Aboriginal people affected by FASD in central Alberta.

In addition, regional FASD agencies, service providers and network partners receive training to assist in understanding the specific cultural needs of the Aboriginal population.

The Strategic Planning component of the plan of the plan targets all Ministries – including Justice – to coordinate planning and actions in addressing FASD within their specific Ministries

http://fasd.alberta.ca/documents/FASD-10-year-plan.pdf

Saskatchewan

Sept. 6, 2019 – Investment of $978,272 through the Indigenous Community Corrections Initiative for the University of Regina to implement the Navigator-Advocates: Integrated Supports for Justice-Involved Indigenous Youth and Adults with Fetal Alcohol Spectrum Disorder (FASD). This alternative to custody and reintegration project is supported by frontline workers and peer mentors with trauma and FASD informed training who can effectively advocate for FASD-affected Indigenous offenders in Saskatchewan and the Yukon. The University partnership will include Indigenous organizations, as well as FASD and justice system stakeholders, to develop culturally relevant, community-based interventions that are responsive to the unique circumstances of Indigenous people. (CISION)

Manitoba

Feb. 3, 2019 – Establishment of a special court to focus specifically on people with FASD. The court, which is expected to open at the end of February and sit one day a week, is an extension of the original youth program. It will have judges with an understanding about the complexities of the disorder as well as support workers to advise and connect sufferers with community programs. There will be a smaller, quieter courtroom with fewer distractions and visual images will be used to make sure offenders understand what’s going on. It will also help obtain a medical diagnosis for anyone who shows signs of having the brain injury

Yukon

Sept. 7, 2018 – The Government of Yukon released a “What We Heard” document today that summarizes the key findings of its public engagement on Fetal Alcohol Spectrum Disorder (FASD). The public engagement took place from May 2017 through February 2018. Representatives from the FASD Interagency Advisory Committee travelled to nine Yukon communities to meet with identified stakeholders, including First Nation and municipal governments, service providers and community members. The information gathered through this engagement is now being considered by the territorial government as it develops a Yukon FASD Action Plan.

Canadian FASD Research Network: FASD and the Criminal Justice System

In a recent study of young offenders with FASD, psycholegal abilities (i.e., their understanding and appreciation of legal jargon, factual knowledge of criminal procedure, the nature and object of the proceedings, and the ability to participate in a defence and communicate with counsel) were significantly deficient in the majority of participants (90%) compared to young offenders without FASD.

This combination of individual, professional, and systemic factors converge to result in a disproportionate number of youth with FASD being incarcerated. In fact, youth with FASD have been found to be 10-19 times more likely to be incarcerated than youth without FASD.

Recommendations

Expand the scope of FASD knowledge through training for those working in the justice system.

  • Foster proactive approaches to supporting people with FASD that reduce or eliminate the likelihood that they will come into conflict with the law, and which enable them to access the justice system equitably, with accommodations appropriate for their disability.
  • Increase legal education and training of FASD for members of the criminal justice system, including probation officers, court workers, lawyers and judges. Police officers are often interested in receiving more information about FASD, but it must be delivered in a manner relevant to their frontline experiences. These resources must be developed collaboratively to ensure trainings are most effective.
  • Post local FASD resources including diagnosis and mentoring programs. Make these resources visible to workers and clients alike.

Increase court supports for families and individuals with FASD.

  • Implement or expand court worker programs that assist individuals as they navigate the court system. These mentors can assist individuals to remember important dates or requirements relative to their case. These individuals could be also be trained to work with a wide-range of clients, including those with other cognitive disabilities.
  • Provide specific support for caregivers and parents within existing social service and community networks that can assist them and their child as they navigate the criminal justice system. For example, biological parents may struggle with their own issues (e.g., abuse, criminal behaviour), while foster/adoptive parents may not understand how their child’s neurocognitive impairments can result in criminal activity.

Introduce interventions that are coordinated by a community mentor

  • Provide targeted support and resources for individuals with FASD who have been in contact with the criminal justice system.
  • Mentorship programs (both institutional and community-based), family therapy (specific support focused on re-entering the community), and professional aftercare and intensive case management (ranging from work with health care practitioners to group home operators and case workers) have been suggested to maximize success and reduce the likelihood of recidivism for individuals with FASD.

Encourage expanded use of diversion, conferencing, therapeutic courts, community courts, and FASD-informed sentencing practices

  • Develop FASD-informed practices that recognize the various limitations and concerns that could compromise a fair trial. Alternatives to incarceration can include conditional sentences, diversion or sentencing circles (i.e., community-directed process to develop consensus on appropriate sentencing plans). Additionally, therapeutic or community court models focus on the individual, the importance of community supports and appropriate conditions or sanctions that meet a person where they are. These must be explored in situations involving individuals with FASD, and be delivered in ways that are informed by the needs and concerns of those who live with this disability. Encourage sentences for individuals with FASD aimed at improving or changing living and social situations, instead of behaviour
  • Promote collaborative approaches to case management, which account for the multi-disciplinary and multi-sectoral support needs of people who live with FASD.
TRC call to action # 34: A framework for action. CanFASD

This document was created by a team of people who live in Treaty Four Territory in Saskatchewan and on unceded Coast Salish Territory in British Columbia. Funded by the University of Saskatchewan and the Canada FASD Network.

12 Actionable Items to Respond to Call to Action #34:

Opening Statement

We call upon the governments of Canada, the provinces, and territories to undertake reforms to the criminal justice system to better address the needs of offenders with Fetal Alcohol Spectrum Disorder (FASD).

  1. Mandatory Education about Systemic Racism
  2. Equal Access to Paid Gladue Reports Across Jurisdictions
    • Providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD.
  3. FASD-Informed Training Practices:  Frontline inside the courts; Frontline outside the courts
  4. Expand Therapeutic Justice Practices
  5. Enhance Alternative Diagnostic Practices
  6. Strengthen Community Supports
    • Enacting statutory exemptions from mandatory minimum sentences of imprisonment for offenders affected by FASD.
  7. Implement Sentencing Reform During Current Justice Review
  8. Remove Mandatory Court Fees
    • Providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community.
  9. Robust Release Planning
  10. Bail/Release Conditions that are FASD Informed
    • Adoption of appropriate evaluation mechanisms to measure the effectiveness of such programs and ensure community safety.
  11. Evidence-Based Internal/External Evaluations of Programs
  12. Training for Communities to Develop and do Evaluation

https://canfasd.ca/wp-content/uploads/sites/35/2018/10/TRC34-A-Framework-for-Action.pdf

Recommendation # 5 Office of the Correctional Investigator 2015 Annual Report

CSC establish a standing expert advisory committee on FASD to establish prevalence, provide advice on screening, assessment, treatment and program models for FASD-affected offenders. The Committee should recommend a FASD strategy for CSC’s Executive Committee in the next fiscal year. (i.e. 2016-17)

As of 2015, CSC still does not have a reliable and validated system to screen, assess and diagnose FASD Disorders among newly admitted federally sentenced offenders. (Correctional Investigator 2015 Report)

Canadian Bar Association

Responding to the TRC Calls to Action March 2016: FASD

In 2010 and 2013, the CBA called for greater sensitivity and flexibility in the criminal justice and corrections systems to deal more appropriately with people with brain injuries such as FASD.  The CBA and others recognize the disproportionate incidence of FASD in Indigenous communities. Calls to action 33 and 34 are consistent with the CBA position on this issue, and recognize the importance of seeing this problem through an Indigenous lens.

Official Federal Government Response: Sept. 2019

To transform the criminal justice system, the Government of Canada is examining measures to address the overrepresentation of vulnerable populations, including offenders with mental health and addiction issues. It is also working to address service gaps that exist in the criminal justice system for these vulnerable groups to improve access to supports, both for victims and offenders.

Bill C-75, An Act to amend the Criminal Code, the Youth Criminal Justice Act and other Acts and to make consequential amendments to other Acts, would require that particular consideration be given to the unique circumstances of members of vulnerable populations when imposing bail conditions. Bill C-75 received royal assent on June 21, 2019.

In addition, Budget 2017 invested $5 billion over 10 years to help the provinces and territories make mental health care more accessible to all Canadians. This targeted investment has the potential to make a real difference in the lives of both Indigenous and non-Indigenous peoples in Canada.

Significant Deletion

Deleted specific references to “Fetal Alcohol Spectrum Disorder including in pre-sentence reports.