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Justice Minister Rob Nicholson responds to a question in the House of Commons, Tuesday October 5, 2010. (Adrian Wyld)
Justice Minister Rob Nicholson responds to a question in the House of Commons, Tuesday October 5, 2010. (Adrian Wyld)

Law must adapt to recognize FASD, activists say Add to ...

Too many people who were brain-damaged in the womb when their mothers drank alcohol are ending up in the justice system, and lawyers and judges say it's time to reconstruct the system.

Now, advocates are hoping the government will finally act when Justice Minister Rob Nicholson meets with provincial justice ministers this week in Vancouver.

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Mr. Nicholson told a Canadian Bar Association in August that the matter is on the agenda at the meeting. Treating fetal alcohol offenders is a "huge problem," he acknowledged.

The association passed a resolution urging the government to change criminal sentencing laws for those disabled by fetal alcohol spectrum disorder, or FASD.

Those affected with the disorder should not be sent into the prison system, the resolution says. When they are convicted of a crime, their "disability" should be recognized and their sentence should "accommodate" that disability.

Bar association president Rod Snow said his organization didn't suggest how the process should be changed, only that changes are necessary and a national conversation is needed to find solutions.

He said the first part of the battle for lawyers is just getting everyone to agree that there's a problem.

"It boils down to lawyers on the front lines and judges on the front line are saying we don't think what we're doing is working," Mr. Snow said in an interview.

He said the normal deterrent of conviction and jail doesn't seem to dissuade those with fetal alcohol spectrum disorder.

And because those with FASD have an organic brain injury where there is no cure, Mr. Snow said these people can't be rehabilitated.

While Mr. Snow said the solution won't be easy, the problem is too important just to place it on the "too-hard pile," and ignore the fact so many people with the disorder are sitting in Canada's prisons.

People who have been diagnosed with FASD and have been found not criminally responsible or unfit to stand trial are redirected to Canada's Review Board systems and are held in an institution.

But many are not diagnosed, leaving them languishing in a prison system with little or no chance of reformation.

Neither option works very well, say advocates.

In the last decade, the court system and review boards have seen more people with the syndrome as the disorder is better understood and diagnosed.

Only about three per cent of the cases appearing before review boards involve FASD across Canada, but Richard Buchan, the chairman of the Yukon Review Board, said they can be some of the most difficult cases to review.

Those diagnosed often lack impulse control and can't self-regulate their actions, Mr. Buchan said.

"A very common expression about people who are significantly affected by FASD is that they need an external brain," he said in an interview.

Mr. Buchan, a lawyer, started with the review board 11 years ago and said it's common to see a young person diagnosed with FASD before the board because of some unrestrained sexual impulse.

It's like putting the mind of a five-year-old boy into a 17-year-old's body, he said, with all the hormonal functions of a teenager, but the impulse control of a child.

"That person might be sufficiently socialized to know that touching that little girl or fondling somebody's breast or something like that is wrong, but there's a disconnect between knowing it's wrong and being able to restrain oneself."

Mr. Buchan said the assumption under the Criminal Code of Canada is that if a person knows it's wrong, they should be able to restrain themselves.

That's why someone with FASD doesn't fit properly under the law of the antiquated Section 16, and Mr. Buchan believes the law should be changed to accommodate those with the disorder under the Review Board system.

Unlike Mr. Buchan, Saskatchewan Queen's Bench Justice Peter Foley doesn't believe the answer is a new law.

But he agreed the justice system doesn't appreciate the problems of those with FASD.

"I do think - unfortunately - that they know that they shouldn't be doing what they're doing. But they're just so susceptible to suggestion or impulse that they do it anyway."

Mr. Foley, who's also the chairman of the Saskatchewan Review Board, thinks the answer lies in the kind of facility where these people are placed.

He would rather see them in a home environment than a mental hospital or the jail.

"I just think it's a problem in our society that we seem to be ready to spend thousands of dollars a year to support them in an institution, but not give a fraction of those resources for maintenance in the community," Mr. Foley said.

He used as an example a pair of FASD brothers who spent years in the foster-care system with a woman who treated them as sons and exercised tremendous power over them.

It was only when the woman couldn't look after them that the young men got in trouble with the law.

"Certainly my own experience is that [those with FASD]always are going to need this mothering or this control, yet in the right circumstances, they can function in the community."

In another instance, he said, a young man with FASD was given a job filling store shelves overnight.

"We've seen videos of him being so happy and so productive," he chuckled. "But he's always in the charge of his dad - that's the word they use, but it's a foster dad."

Yukon has had people with FASD who have been provided structure and have been manageable in the community as long as the review board's conditions and prohibitions are in place, Mr. Buchan said.

"We've got some guys in some very stable situations, but you definitely don't want to cut them loose and have them walking by the school grounds."

A Justice Department report released last year noted slightly more than one in 10 youth coming before Canada's review boards had suspected or confirmed FASD.

About 14 per cent of aboriginal accused going through the review system were also confirmed or suspected FASD diagnosis, compared to 0.2 per cent of non-aboriginal accused.

The report said those accused with FASD were more likely to be charged with a sexual offence.

Few studies have been done on those with FASD and the law, but one followup study on youth and adults in Washington State showed that up to 60 per cent of those diagnosed get in trouble with the law.

Mr. Buchan said many Yukon lawyers and judges are good at recognizing those with FASD and lawyers see the review board as something that could help their mentally-disordered client.

"In fact, the board has more power than the criminal courts do," he said. "We can order the Territorial government, for example, to provide residential placement for this person and stipulate the general requirements."

Mr. Foley acknowledged resources are always in demand, and creating accommodations for those with FASD won't be easy or cheap.

"I guess we could always increase the tax on alcohol to pay for the things that result out of the alcohol," he ventured.

"I really don't know what the solution is. Certainly, I don't think it's institutionalization."

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