By Janice Dickson | Mar 24, 2015
Prisons are doing a poor job of treating inmates afflicted with Fetal Alcohol Spectrum Disorder, Canadian Correctional Investigator Howard Sapers told a justice and human rights committee Monday afternoon.
“The unfortunate reality is that most FASD-affected offenders come into prison undiagnosed and untreated and they remain that way,” said Sapers.
FASD is caused by an expectant mother consuming alcohol during pregnancy. Effects can include birth defects, brain and central nervous system disabilities, as well as cognitive, behavioural and emotional problems.
Sapers delivered his testimony in the context of the committee’s study of Bill C-538, An Act to amend the Criminal Code (Fetal Alcohol Spectrum Disorder). The intention of the bill – which was dropped from the order paper by the government last year and sent to committee for further study – was to give judges the ability to consider FASD as a mitigating factor in sentencing.
But according to Sapers, more should be done in prevention and diversion prior to, or on the day that, offenders come into contact with the criminal justice system.
“Sentencing is a back- end measure. There is a need for screening and diagnostic services to be made available to FASD afflicted persons at first contact with the criminal justice system,” he said.
Sapers cautioned that Bill C-583 is a proposed change to sentencing principals similar in intent to section 718.2E of the Criminal Code, which was enacted in 1996 and expresses the need for judges to consider all other sentencing alternatives before sending an offender to prison, with particular consideration for the circumstances of aboriginal people.
“Though the intent of 718.2E was to show restraint in the use of incarceration, the outcome of this measure has not lived up to the optimism about it,” said Sapers.
Sapers said when the Criminal Code was amended in 1996, aboriginal people represented 15 per cent of the total offender population. That percentage has since increased to 25 per cent, and the number of incarcerated aboriginal people has increased by over 50 per cent in the last ten years.
“If there has been judicial restraint, it has not translated into an actual decrease in the number of aboriginal people sent to Canadian jails and prisons.”
Similarly, explained Sapers, “a parole and pardon system that is predicated on the need and capacity to express remorse and learn from past mistakes is also not well suited to FASD affected persons.
“I have suggested the challenges faced by FASD individuals are largely at odds with the purposes of sentencing and incarceration.”
Sapers said that by the time someone with FASD makes it to sentencing, options other than incarceration have become considerably restricted.
“Notwithstanding these concerns, it may be time to consider broadening the definition of mitigating factors at sentencing to include all forms of mental illness and disability, not just FASD,” said Sapers, adding that “such consideration, while late, would certainly be better than never.”
Sapers said that four years after CSC conducted its first major research study on the prevalence of FASD in prisons, CSC still doesn’t regularly screen for FAS disorders among newly admitted offenders.
Once in prison, people with FASD have problems adjusting while incarcerated. They pose a higher risk of involvement in violent acts and are more likely to be charged with both minor and major infractions of institutional rules.
Also, there are no correctional programs specifically for offenders with FASD, said Sapers.
“It is one thing to shed light on the causal factors that may have brought an FASD-afflicted person before the courts, it is quite another to have in place upsteam diversion and treatment programs, services and support in the community that could provide courts with an appropriate disposition other than incarceration.”