Justice Minister Rob Nicholson and his provincial counterparts are meeting this week to discuss, among other issues, the problem of offenders who suffer from fetal alcohol syndrome and how the justice system should deal with them.
Toronto's Jonathan Rudin, who is justice committee co-chair at the FASD [fetal alcohol spectrum disorder]Ontario Network of Expertise, speaks with Carys Mills about some of the challenges.
What are the problems that people with FASD have with the justice system?
The challenge is that FASD is largely an invisible condition; most people don't appear to be any different than anyone else.
The problems that they have are with their cognitive reasoning ability. They tend not to do well at school if they're not diagnosed because they can't learn, they drop out, they become eager to follow, they're easily manipulated. So they end up very quickly involved in the criminal-justice system. And then if they come before the courts they often present like anyone else so they'll be given a bail condition like a curfew or not to associate with certain people, which they will have a very difficult time meeting.
Here's an example: You tell someone their curfew is at 10 p.m. It hasn't occurred to them in order to get home they have to leave at 9 p.m. It's that sort of processing that's difficult for many people with FASD to handle. It's not that they can't learn, they learn in different ways.
What needs to change in the system?
It would be good if people could be diagnosed between being charged and being sentenced. Often we don't know if someone has it and that would be valuable information for the court to have.
In prison there are few programs tailored to address the needs of people with FASD. Most programming is cognitively-based programming. Your addictions programs, your violence-prevention programs, anger-management programs, they're all cognitive programs where you're asked to think about your behaviour.
And we don't have a notion in Canada of diminished criminal responsibility. So you either did it or you didn't do it because you have a psychiatric problem, you're not criminally responsible. FASD doesn't sit well within those.
How do you make sure people don't re-offend?
Once people are diagnosed, they start to also take responsibility for improving their own condition. We need to be realistic - you can never promise that someone won't re-offend. What you want to try to do is see that if someone does, that they don't commit serious offences or that the period between offences becomes longer and longer.
What type of criminal situations often occur?
They're easily led, so people will get them to do things. You convince the person with FASD to take the rap. They're not the mastermind behind the crime but they're involved in the crime. There a lot of spontaneous crimes, reacting quickly. And then a lot of things like failing to appear in court, failing to follow your probation.
Are there populations in Canada that are suffering from this more than others?
The data isn't great. It's generally thought to be the most common birth defect in Canada, about one per cent of people. There are class issues in the sense that doctors are often more willing to ask people of a lower background if they were drinking when they are pregnant than the middle class. In the justice system, what we know is that people with FASD are overrepresented, we're still not sure by how much. The estimates go from 10 to 40 to 50 per cent of people who are in prison have FASD.
Are more people being born with this or are more being diagnosed?
It's now more recognized. Fifteen years ago there were very few people who knew about FASD. If you were to go to court and say, 'My son or daughter has FASD,' a judge wouldn't even know if it was a real thing. I don't know if it's more prevalent now than it ever was but we see it more now. The diagnosis requires a multi-team approach, it requires psychiatrists, psychologists, pathologists, nurses. You also need to have confirmation that the mother drank while she was pregnant. All of that makes it difficult to diagnose.
Q: Are there countries that Canada can look to as examples?
Sadly, no. Canada's not so far ahead that I would think of us as leaders but compared to other countries, Canada has the opportunity to set some directions for this for other countries. It's a big issue all around the world. Unfortunately we don't have the opportunity to learn from best practices elsewhere but we do have the opportunity to develop best practices here.
This interview has been edited and condensed.