The CBA supports government action on FASD

  • March 11, 2015

Ottawa – The Canadian Bar Association (CBA) welcomes the government’s study on Bill C-583, which contains Criminal Code amendments to address the treatment of people suffering from fetal alcohol spectrum disorder (FASD). The changes in the Private Member’s Bill sponsored by MP Ryan Leef (Yukon) would improve the criminal justice system’s response to people suffering from the disorder.

“The CBA applauds these changes to recognize and advance the needs of people who suffer from FASD,” says CBA President Michele Hollins, QC of Calgary.  “The CBA has advocated for similar improvements and this Bill represents an important milestone in addressing some of the shortcomings of the current framework.”

People who suffer from FASD have a permanent organic brain injury caused by maternal alcohol consumption during pregnancy. That brain injury is characterized by symptoms that often go against underlying principles of criminal law, that individuals are responsible for their actions, can control their behaviors and can learn from and be deterred by previous experience.

In contrast, individuals with FASD often show a lack of impulse control, impaired judgment, and an inability to control or modify their behavior. They may be susceptible to pressure from others and lack the ability to learn from past experiences, so may make the same mistakes over and over.

Bill C-583 proposes three main changes. The CBA supports the proposal to provide a definition of FASD in section 2 of the Criminal Code. The CBA also supports an amendment to allow a judge to order an assessment of someone they suspect suffers from FASD.

“We believe this would assist courts in handing out dispositions more appropriate to people suffering from FASD,” says the CBA submission. Finally, CBA supports amending sentencing provisions in section 718.2 of the Criminal Code to allow a judge to consider evidence that an offender suffers from FASD as a mitigating factor on sentencing. 

The CBA notes that some additions would further improve the Bill. CBA has proposed a legislative “safety valve” to allow judges to exercise discretion in applying mandatory minimum sentences to avoid an injustice, including in their application for people with FASD. The Bill should be expanded to clearly apply to both summary conviction and indictable offences. The reasons why people suffering from FASD often run into trouble with the law apply equally to their ability to differentiate more or less serious criminal activities.

CBA member Fia Jampolsky, member of the CBA’s FASD Working Group, appears before the Standing Committee on Justice and Human Rights on March 11, at 3:30 p.m. by videoconference. The CBA submission is available online.

The CBA is dedicated to support for the rule of law, and improvement in the law and the administration of justice. Some 36,000 lawyers, notaries in Quebec, law teachers, and law students from across Canada are members.