Yukon MP Ryan Leef has introduced a private member’s bill that would allow the courts to consider a person’s fetal alcohol spectrum disorder when sentencing them for a crime.
If it becomes law, Bill C-583 would amend the Canadian criminal code to include a definition of FASD. It would also give judges the ability to order assessments of people who may suffer from the disorder.
“If, in the court’s opinion, the condition was relevant or contributed to the commission of the offence,” FASD will be considered as a mitigating factor when it comes time for sentencing, the draft amendment says.
Leef, who introduced the bill in the House of Commons on Monday, said it was created in part because of his personal experience as a correctional superintendent and police officer.
“Now as a member of Parliament I have an opportunity to create a piece of legislation. I reflected back on my personal and professional experience and knew that this was an avenue that required serious attention and serious discussion,” he said.
FASD is a permanent brain injury caused when a mother consumes alcohol during pregnancy.
It can cause people to have impaired judgment, an inability to control their behaviour and an impaired ability to understand the consequences of their actions.
Leef says judges in Canada have been asking for this kind of clear direction in the law.
“When you look at the case-specific examples, you’re really not seeing a great manifestation across the country in mitigation being applied to people with FASD. It’s really not the court’s experience.”
Some studies suggest 60 per cent of people with FASD older than 12 have been charged with or convicted of a crime.
Leef acknowledged that additional costs would need to be covered by the provinces and territories, in order to pay for the assessments.
He said any assessment would only have to be done once.
“On the initial instance there might be an uptake of orders coming in. But it’s not something that we have to repeat because we know FASD is not curable. So once someone has been determined to have FASD there really isn’t a need in a subsequent case for another order to be directed by the court.”
Canadians are willing to accept a reasonable cost associated with doing the right thing for other people, said Leef.
“Particularly for the most vulnerable. It would be hard to argue that when one in 100 Canadians are born with FASD, which is an alarming rate, and nearly 60 per cent of those will have some conflict with the law, that there’s something we need to be doing to reflect that.”
Faisal Bhabha, a professor with York University’s Osgoode Hall Law School, said the bill “takes a very progressive approach to considering a person’s disability and so from a human rights perspective it is a very positive approach.”
Bhabha, who focuses on human rights and the constitution, said some concerns could be raised over the part of the bill that dictates when an assessment can be ordered.
If necessary, a judge could order the person be held in custody while the assessment is done, according to the current draft.
“There’s a very vocal patients’ rights movement in Canada, psychiatric patients’ rights, who argue very strongly against any sort of laws that give anybody the power to detain people who suffer from psychiatric illness against their will or to subject them to medical treatment or testing,” Bhabha said.
In response to the concerns, Leef’s office said that section of the bill is identical to other laws in Canada.
“Ultimately, the discretion is in the hands of the court and each side will have opportunity to make submissions to the court on a remand motion. You will note that the section reads ‘may,’ not ‘shall,’ and it would be incumbent upon the court to be satisfied on evidence that the custody is necessary.”
The bill has been reviewed during each of its drafting phases by the legislative drafters and research lawyers in the House of Commons, according to Leef’s office.
The bill still needs to go through reviews and debates before it becomes law.
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