The head of Yukon’s fetal alcohol support society says MP Ryan Leef’s private member’s bill regarding the disability is a “good start.”
“It has been something that, since 2010, the Canadian Bar Association has been promoting, and now it’s been adopted by the U.S. Bar Association as well,” said Mike McCann, the executive director of the Fetal Alcohol Syndrome Society of Yukon.
Leef’s bill, which is up for its first hour of debate in the House of Commons in June, targets the criminal justice system and seeks to correct some serious flaws when it comes to how the courts and jails treat people suffering from fetal alcohol spectrum disorder.
“It’s a physical disability,” McCann said, “and that’s such a difficult concept for people to get their heads around.”
The disorder is caused by a mother drinking alcohol during pregnancy. It limits healthy brain development, especially the ability to understand cause and effect. In adolescents and adults, that can result in an appearance to be willfully rebellious and not follow rules.
It can also be hard to spot, which can lead to misunderstandings and assumptions that someone in court or jail is simply being difficult or not listening to instructions.
“What we classically associate with someone as having FASD – small stature, flattened facial features – are not recognizable necessarily,” McCann said.
“As the individual matures, some of those physical characteristics fade.”
“It’s really an invisible disability, and that’s a problem. For many people with FASD, what you see isn’t what you get.”
One common symptom of FASD is a disconnect between expressive language skills – how someone speaks – and their level of comprehension.
“It’s like a 10-second brain in a one-second world,” he said.
“They might be talking to you and carrying on a conversation and it seems like it’s all good, but the understanding of the conversation is maybe that of someone who’s only seven or eight years old,” McCann said.
When you consider that FASD often disproportionately affects poor and marginalized populations, who are themselves more likely to have run-ins with the criminal justice system, the recipe is ripe for disaster.
“Sixty per cent of people with FASD will have some amount of conflict with the law,” McCann said. “Of those, almost 90 per cent of the repeated infractions are administration of justice issues like breaches of parole, etc.”
That means someone can seem to fully understand why their parole officer is telling them to stop drinking, or stop spray painting signs around town, but the moment they walk out of the office they could go right back to doing that problematic behaviour, as though the conversation didn’t even happen.
And it’s not their fault, McCann said.
“You wouldn’t punish someone in a wheelchair because the rule says stand up, and they’re just not trying hard enough.”
That’s where Leef’s bill comes in. Among its powers, the bill would allow for courts to order FASD assessments. Once those are complete and the person has a diagnosis, the courts can then use it as a mitigating factor in reducing sentences or finding more suitable options instead of just locking people up.
There is one potential sticking point, however. The language of Leef’s bill doesn’t make it clear who will pay for these assessments, which can be very costly and time consuming.
“From my perspective as an NGO, I don’t care who pays, as long as someone does,” McCann said.
Leef himself acknowledges that negotiations over whether the provinces or the federal government should foot the bill could get sticky, but to him, it’s worth whatever headaches the fine-tuning requires.
“One of the challenges that we’re facing right now is the complexity of assessment orders,” said Leef. “Different jurisdictions have different capabilities, and we need to be ready for that. I tried to word my bill around that kind of flexibility.”
The real test of that flexibility will come once the bill passes first reading and goes to committee to be studied and discussed in more detail.
In the meantime, however, Leef is quick to point out that even if it means a big cost up front, the long-term payoffs will more than make up for it.
“It’s a discussion that I’m willing to have, but I’ll hold firm to: Do we say the status quo is acceptable just because this might be expensive? I say no, it’s not,” Leef said.
“As we see a more sensible approach to the issue, we’re going to see costs decline. We know clearly that 60 per cent of people who have FASD will have conflict with the law.
“If we can reduce that experience in the justice system, from court time and costs, incarceration costs, clearly we’re going to see the investment front-end paying back on the back end,” he said.
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