Federal-Provincial-Territorial Meeting of Ministers Responsible for Justice and Public Safety

Final Report to Federal/Provincial/Territorial Ministers Responsible for Justice and Public Safety

Executive Summary

Fetal Alcohol Spectrum Disorder (FASD) describes a broad spectrum of presentations and disabilities that result from prenatal alcohol exposure. While some people with FASD have visible physical traits most do not, which makes identification challenging. People with FASD also often struggle with issues related to substance misuse, mental health, difficulties with education, employment, living independently and criminal justice system involvement. Specific to criminal justice system involvement, research suggests there is an overrepresentation of people with FASD.

To explore FASD in the context of the criminal justice system, a national conference on FASD was held in Whitehorse, Yukon in 2008. This conference, entitled "The Path to Justice – Access to Justice for Individuals with FASD", identified a need to address gaps in the criminal justice system for people with FASD in the following areas: information sharing; education and awareness; specialized programing and initiatives; and identification of FASD.

Following this conference, federal/provincial/territorial (FPT) Ministers and Deputy Ministers responsible for Justice and Public Safety agreed that there was a need to better understand the impact FASD has on individuals in the criminal justice system. As a result, the Steering Committee on FASD and Access to Justice (Steering Committee) was created with representation of justice officials from across Canada. This report reflects the outcomes from the Steering Committee's work, which included significant collaboration and consultation with a number of other government working groups and non-governmental organizations.

Section 1 of this report provides a background that includes an overview of FASD in the context of the criminal justice system and a summary of the Steering Committee's pathway to exploring the issue of FASD. Section 2 outlines the analysis of several recommendations for Criminal Code reform to address FASD. Finally, section 3 outlines the recommendations of the FASD Steering Committee on the issue of access to justice for people with FASD.

These recommendations are put forward for consideration as a means of moving the issue of FASD in the criminal justice system forward by focusing on: a broader focus on mental health and neurocognitive disabilities, prevention of contact and re-contact with criminal justice system, the federal criminal justice system review, opportunities for further research, identification/ prevalence, restorative justice, leveraging existing forensic mental health services, information sharing and education.

Section 1: Background

Fetal Alcohol Spectrum Disorder

Fetal Alcohol Spectrum Disorder (FASD) describes a broad spectrum of presentations and disabilities that result from prenatal alcohol exposure. While some individuals with FASD have visible physical traits most do not. As a result, FASD is often referred to as an "invisible disability". The key feature of FASD is central nervous system deficits, which may result in negative impacts on motor skills, neuroanatomy/neurophysiology, cognition, language, academic achievement, memory, attention, executive functioning, including impulse control and hyperactivity, affect regulation and adaptive behaviour, and, social skills or social communication. In addition, people with FASD may also experience challenges with substance misuse, mental health issues, difficulties with education, employment, and living independently and criminal justice system involvement.

Research indicates that people with FASD are overrepresented in the criminal justice system. According to the Public Health Agency of Canada, FASD is estimated to affect approximately 1% of the general Canadian population¹. Specific to correctional settings, recent Canadian studies have identified FASD prevalence rates of 10% in a federal facility² and results indicate 17.5% in a Yukon facility³. Further, the Yukon study also identified 13.75% where a diagnosis of FASD was deferred, pending confirmation of prenatal alcohol exposure. Overall, 31% of offenders involved in the Yukon study were confirmed as having FASD, or disability levels similar to those with FASD, but without confirmation of prenatal alcohol exposure.

In addition, both of these Canadian studies identified high percentages of mild to moderate cognitive impairment; 70% in the federal study⁴ and approximately 94% in the Yukon study⁵. While the scope of these studies are limited, the findings suggest the need for targeted interventions, services, and further research focused on access to justice for people with FASD and other neurocognitive disabilities.

The Steering Committee on FASD and Access to Justice

In 2008, a national conference on Fetal Alcohol Spectrum Disorder (FASD) was held in Whitehorse, Yukon. Entitled, "The Path to Justice – Access to Justice for Individuals with FASD", this conference identified a need to address gaps in the criminal justice system for people with FASD in the following areas: information sharing; education and awareness; specialized programing and initiatives; and identification of FASD.

Following this conference, federal/provincial/territorial (FPT) Ministers and Deputy Ministers responsible for Justice and Public Safety agreed that there was a need to better understand the impact that FASD had on individuals in the criminal justice system and as such, the Steering Committee on FASD and Access to Justice (Steering Committee) was created with representation of justice department officials from across the country. The Steering Committee was tasked with considering how to improve access to justice for people with FASD in consultation and collaboration with senior officials working on related matters and with non-government organizations⁶.

The Steering Committee developed and followed two work plans (2009 and 2013 respectively) which were largely based on the recommendations from the 2008 national conference⁷. The Steering Committee engaged with the Canadian Bar Association (CBA) early on in their mandate, which resulted in some recommendations for policy and legislative change. The Steering Committee then engaged other FPT officials with expertise in related matters to analyse a number of proposals for Criminal Code reform to address the issue of FASD in the criminal justice system. These included two resolutions from the CBA, recommendations from the Consensus Statement of Legal Issues on Fetal Alcohol Spectrum Disorder (2013) (Consensus Statement), developed through the Institute of Health Economics, and a series of private member's bills introduced in the Parliament of Canada.

In addition, the Truth and Reconciliation Commission Report included two calls to action which specifically address FASD from a prevention perspective, as well as within the criminal justice system. These events and initiatives have informed the work of the Steering Committee on FASD as an access to justice issue.

Section 2: Consideration of Recommendations with Respect to Legislative Reform for Individuals with FASD

In recent years there have been several initiatives calling for legislative reform to address concerns relating to people with FASD in the criminal justice system. These include two resolutions from the CBA, the Institute for Health Economics Consensus Statement (2013), three private member's bills (Bill C-583, Bill C-656, and Bill C-235), and the Calls to Action of the Truth and Reconciliation Report which specifically addressed FASD.

FPT officials with various expertise in sentencing, restorative justice, criminal procedure and mental disorder conducted an analysis of recommendations for criminal law reform and, in general, they concluded that most of the objectives of the recommendations could be met through methods other than legislative reform, such as policy or program changes.

Further, legislative amendments which would single out one specific disability for special treatment to the exclusion of others was not supported. It was noted that the criminal law does not currently single out specific disabilities and no policy rationale for singling out FASD in this way was identified. This was recognized by the Consensus Statement which advocated for the use of broader language to encompass a range of intellectual impairments or disabilities such as FASD. However, even with the broader language proposed, there is a risk that some disabilities would be excluded, creating a differential impact amongst individuals.

The analysis of the recommendations for legislative reform can be divided into the following categories: definition of FASD, expanding Criminal Code assessment powers, judicial release/bail, defence of diminished capacity, and sentencing.

Definition of FASD

It has been proposed that FASD should be specifically defined in the Criminal Code by reference to the medical guidelines. Further, the proposed definition should permit a judge to make a finding that an accused person has FASD, even in situations where evidence of maternal alcohol consumption (a key feature of the medical diagnosis) was not available.

As the Criminal Code does not currently define any other mental or neurocognitive disability, officials were unable to identify any policy rationale for singling out one type of disability, to the exclusion of all others and were not supportive of this recommendation.

Further, the added proposal to permit a judge to make a finding of FASD was not supported by officials. Concerns were expressed that this could put judges in the inappropriate role of diagnostician, which would be even more inappropriate if they were permitted to make the diagnosis in the absence of key medical evidence.

Expanding Criminal Code Assessment Powers

There were many recommendations that the Criminal Code be amended to permit the court to order an FASD-specific assessment. The specific legal purposes for which an FASD assessment could be ordered varied from recommendation to recommendation. In some cases no legal purpose was specified, in others an assessment was felt to be necessary for the purposes of bail, sentencing and in some cases, for purposes under the Youth Criminal Justice Act (YCJA). Officials determined that there was no policy justification for authorizing an assessment power to evaluate the presence of a specific disability.

Officials were particularly concerned with respect to the proposed assessment power for the purposes of bail. This concern was due to a number of reasons, including what use might be made of statements made by the accused during the assessment, the time and resources required, and the possible detention of the accused for an assessment for up to 60 days before having a bail hearing.

There was agreement that there may be merit in clarifying the power of the court to order assessments of the mental condition of the accused for the purposes of sentencing. Currently, assessments for the purposes of sentencing operate in a patchwork approach across the country with some jurisdictions obtaining assessments using the powers of the provincial mental health law, others relying on jurisprudence, and others are not able to order them at all.

Officials were of the view that clarifying the Criminal Code assessment power for the purposes of sentencing, as opposed to creating an FASD assessment specifically, would permit the court to gather relevant evidence about the accused, which could include information about the offender's capacities, limitations and support needs. This would provide an opportunity to address many of the concerns underlying this initial proposal and could have a positive impact for all offenders in the criminal justice system, not just those with FASD. Officials also noted that the identification of a disability during an assessment for the purposes of sentencing does not necessarily result in a lower sentence for an offender, especially if the assessment indicates that the offender cannot be managed in the community.

As provincial and territorial jurisdictions are responsible for costs associated with the introduction of any new assessment powers, this approach would require further study and consultation to determine resourcing and financial impacts, among other things.

Judicial Interim Release/Bail

Some proposals to address FASD called for legislative reform and changes to operational standards and procedures for the granting of bail for accused people with FASD. These recommendations were aimed at remedying what is seen as unfair treatment of people with FASD who are before the court for a bail hearing when there is evidence that they may not be considered good candidates for release due to a history of missing court appearances and non-compliance with bail conditions.

As noted above, officials concluded that legislative reform to specifically address FASD and excludes other disabilities was not advisable. They further indicated that, while concerns raised about the impact of FASD on the outcome of a bail hearing have merit, they can be addressed in other ways. For example, bail supervision programs and or sureties could be used to address challenges.

It was recommended that the focus should be on operational policies and practices such as training and methods or techniques of taking FASD into consideration at various stages of the pre-trial process.

Defence of Diminished Capacity

One of the recommendations advocated for the creation of a statutory defence of diminished capacity. This would apply in situations where an accused person did not reach the threshold of incapacity required by the defence of mental disorder, but because they had FASD, should not be held to the same standard as a fully competent individual.

Officials were of the view that a change of this nature to the criminal law would be profound and should not be pursued without further direction from Ministers, as it is not clear whether there is currently a gap in the existing law, and significant consultations with the broader legal community as well forensic psychiatric experts would be required.

Also, it was noted that the development of partial defences, such as the one proposed, often stems from a lack of discretion in the dispositions available at the sentencing stage. As the federal government has made the commitment to revisit the issue of mandatory minimum penalties (MMPs) and other sentencing related issues, a more appropriate and efficient way to address the issue of diminished capacity may be in the context of sentencing reforms.

Sentencing

The majority of the recommendations for legislative reform relate to issues of sentencing. Each of these specific recommendations are considered in turn.

FASD as Mitigating Factor – It was recommended that the Criminal Code be amended so that FASD would be considered a mitigating factor for the purposes of sentencing in all cases.

In addition to the concern raised with respect to singling out FASD, officials noted that nothing in the current law prevents FASD from being taken into consideration as a mitigating factor in appropriate circumstances. It would also depart from the traditional policy approach of only codifying aggravating factors which are easily identified as being aggravating in all cases. The same cannot be said for mitigating factors, and in fact, there are some situations where a disability such as FASD would be considered a non-mitigating factor (e.g., in a dangerous offender proceeding where there is concern about the ability to manage the offender in the community). The Criminal Code should continue to provide this flexibility.

Legislating Diminished Responsibility for FASD – It was also recommended that the Criminal Code be amended to state that the degree of responsibility of the accused was diminished if they had FASD, for the purposes of developing an appropriate sentence. Again, officials raised concerns about only including some disabilities. Further officials concluded that the fundamental principle of sentencing, which requires a sentencing judge to impose a sentence which is proportionate to the gravity of the offence and the degree of responsibility of the offender, is the most appropriate way to recognize any diminished level of responsibility of an offender.

Primary consideration to rehabilitation and imposition of community sanction for offenders with FASD – A number of recommendations to address FASD in the Criminal Code focused on the issue of rehabilitation, in particular, that the sentencing objectives of the Criminal Code be amended to state that when an offender presents with an intellectual impairment or neurocognitive disability (such as FASD) the court "shall give primary consideration to the objective of rehabilitation and the imposition of a community sanction" in determining the appropriate sentence. It was further recommended that the term "rehabilitation" be clarified in paragraph 718(d) (fundamental purpose of sentencing) to mean that there is a reasonable prospect of reintegration in the community.

There was no support for amending the sentencing principles to suggest that rehabilitation is the primary objective of sentencing in cases involving persons with FASD (or other disabilities). Officials concluded that the current sentencing principles are broad enough to allow for the principle of rehabilitation to be adequately considered in appropriate cases.

It was determined that the current wording in paragraph 718(d) in Criminal Code, referring to assisting in rehabilitating offenders, sufficiently addressed the concern raised. Officials also noted that the French text of paragraph 718(d) reflects to some extent this element: "(d) favoriser la reinsertion sociale des délinquants". Officials agreed that, although it would not likely harm the policy objective of paragraph 718(d) to reflect in the text that the ability to manage an offender in the community is an important element of rehabilitation, this particular amendment was not necessary.

Exemptions from MMPs and Greater Availability of Conditional Sentences - There were many recommendations to enact an exemption in the Criminal Code to permit a judge to depart from MMPs for individuals with FASD. It was further recommended that the Criminal Code be amended to remove some of the legislative restrictions on conditional sentences. Conditional sentences, which permit offenders to serve their sentence in the community, including under "house arrest", are seen by some as a more effective way of managing offenders with FASD in the community.

Officials re-iterated that any exemption from MMPs could not be limited to individuals with FASD, but would have to be broad enough to apply to a wide variety of circumstances. The same principled approach would also have to be applied for conditional sentences. It was agreed that these issues should be considered as part of the federal criminal justice review, which is expected to include a review of sentencing principles.

Alternative Measures - A number of recommendations related to the use of, or access to, alternative measures for people with FASD, specifically that section 717 (when alternative measures may be used) of the Criminal Code be amended to give primary consideration to the objective of rehabilitation and the measures most likely to provide opportunities for an accused person to be rehabilitated and reintegrated peacefully into society. Further it was recommended that the Criminal Code be amended to state that evidence that a person has FASD shall be deemed to be a relevant factor in determining their suitability for alternative measures.

Officials concluded that while the use of restorative justice for people with FASD was possible and promising, there was no support to make rehabilitation the primary consideration for alternative measures. Further, it was felt that section 717 of the Criminal Code was adequately balanced to address victim, accused, and community needs.

However, in response to this recommendation, jurisdictions were surveyed to gather information about the use of the restorative justice and alternative justice programs that work with people who have, or who may have FASD. Officials found that there were few restorative justice programs in Canada specifically focused on people with FASD. Despite this, there are some restorative justice programs that have experience in working with people who have FASD, suggesting that restorative justice programs can be suitable if the process is adapted to support and meet the needs of these individuals.

Based on this survey, officials identified several supports as being necessary to allow people with FASD to effectively participate in restorative justice programs, including ensuring the person has a support person, use of visual aids to help prepare the person on what to expect, and providing additional time to fulfill the conditions of an agreement.

Officials also suggested areas where jurisdictions could focus, if there was an interest in developing restorative justice programs for individuals with FASD, including: better screening and assessment tools and capacity to identify FASD; improving record keeping in existing restorative justice programs to better understand the prevalence of FASD and other neurocognitive disabilities; improving training for restorative justice practitioners; and boosting research and evaluation capacity about the use of restorative justice with clients who have FASD.

External Support Plans – It was proposed that the Criminal Code be amended to permit judges to order "external support plans" recommended by a probation officer. Some recommendations further proposed that the external support order could be in place following the expiration of a probation order. "External support plan" was not defined in the recommendations, but officials considered it to be a unique type of community supervision which would offer specialized supports to an individual with FASD.

Officials indicated that any proposal to extend an "external support plan" beyond the time when an offender would have completed their sentence was likely beyond the scope of the criminal law, and raised concerns under the Canadian Charter of Rights and Freedoms.

With respect to the concept of "external support plans" in general, officials indicated that such a proposal could not be supported specifically for people with FASD and also raised concerns that such an order could result in unfairness to an offender by requiring them to follow additional conditions not applicable to others. It could further risk exposing them to increased risk of administration of justice charges. The proposal to permit the probation officer to formulate the conditions of such a plan would inappropriately shift what is otherwise the responsibility of a judge to a probation officer. As such, this recommendation was not supported.

Summary of the Findings with Respect to Legislative Reform

Upon thorough review and analysis, officials were not supportive of many of the recommended legislative reforms as many of the objectives could be met through non-legislative measures. These could include options such as revised operational policies regarding bail, use of alternative measures, availability/suitability of programs on community supervision, and training to criminal justice system professionals.

Officials indicated there was interest in studying the potential impact of clarifying the power of the court to order general assessments of the mental condition of the offender for the purpose of sentencing. This was also identified by the Uniform Law Conference of Canada Criminal Section in a 2011 resolution. Many jurisdictions currently obtain assessments for sentencing purposes through a combination of jurisprudence and provincial mental health legislation and there was interest in making this power explicit in the Criminal Code.

Recommendation 1: FPT Ministers direct officials to evaluate the desirability and the potential impact of clarifying the power of the court in the Criminal Code to authorize assessments of the mental condition of the offender for the purpose of determining a fit and appropriate sentence.

Section 3: Non-Legislative Recommendations

The original request by Deputy Ministers to consider how to improve access to justice for individuals with FASD has resulted in a significant amount of review and analysis by FPT officials with expertise in a number of areas related to criminal justice. Based on this work, it is apparent that FASD present significant challenges to the criminal justice system. All levels of government must be cognizant when developing programs, policies and considering legislative reform and should continue to examine ways to improve access to justice for people with FASD, other neurocognitive disabilities and mental health issues. Ultimately, this is a complex challenge facing the criminal justice system that no one specific recommendation or policy change can remedy.

In addition to the review of recommendations for criminal law reform, the FASD Steering Committee identified potential opportunities within the existing criminal justice system for improving access to justice without reforming legislation. The Steering Committee also acknowledges that there may be recommendations in other areas such as Civil/Family law that may benefit from further examination and review. It is beyond the scope of this report to review all of the recommendations that have been put forward, but jurisdictions and FPT committees across the justice sector should be aware that they exist and take them into consideration.

The following recommendations propose ways to improve access to criminal justice for individuals with FASD.

Recommendation 2: Jurisdictions and officials should continue to examine ways to improve access to justice for all people with neurocognitive disabilities, mental health issues, including FASD.

Broader focus than just FASD

It is recognized that FASD presents a significant challenge for the criminal justice system, however, there is no clear policy basis for addressing people with FASD in the criminal justice system differently than people with other types of mental disorders or neurocognitive disabilities. While there may be differences for the purpose of medical diagnosis, medical treatment and service delivery, the legal policy issues are not exclusive to people with FASD. As prevalence studies within the Canadian corrections population to date have shown, there are high rates of cognitive impairment, regardless of the underlying diagnosis.

Recommendation 3: Any considerations of criminal law or policy reforms should not focus exclusively on FASD, but should include consideration of all people with mental health conditions or other neurocognitive disabilities.

Preventing Contact and Re-Contact with the Criminal Justice System

It is widely believed that the most effective way to address the challenges posed by people with FASD in the criminal justice system is to prevent their initial contact with the system. Once an individual with FASD becomes involved in the criminal justice system it all too often leads to a revolving door of administration of justice breaches and re-offending.

A number of factors have been cited as contributing to the increasing numbers of people with FASD coming into contact with the criminal justice system, including lack of diagnosis, insufficient community support, challenges with independent living, and co-occurring mental health and addictions issues. These factors also contribute to the continued involvement of persons with FASD once they have entered into the criminal justice system.

The criminal justice system all too often becomes the default service provider for people whose disorders/disabilities and/or addictions issues are not managed by the existing provincial health and social services systems. Any solution offered by the criminal justice system could not be a substitute for early diagnosis, appropriate services, supportive housing, and other services, all of which would support the goal of preventing initial contact with the criminal justice system.

There are a number of models for programs and services across the country that aim to keep people with FASD from coming into contact with the criminal justice system. There are also programs for those already involved in the criminal justice system; these are focused on facilitating the reintegration of people with FASD back into the community, such as the Manitoba FASD Youth Justice Program and community wellness courts/mental health courts that exist in many jurisdictions. A list of current FASD programs is attached as Annex 1.

Recommendation 4: Jurisdictions are encouraged to explore programs and services that support the prevention of persons with FASD from coming into initial contact with the criminal justice system, and those that reduce re-offending of people with FASD who are already in the criminal justice system.

Federal Criminal Justice System Review

The Steering Committee believes that the on-going federal review of the criminal justice system provides an excellent opportunity to specifically consider the complex challenges that FASD and other neurocognitive disabilities present to the system. Further, any criminal law changes that are proposed with the objective of reducing the overrepresentation of vulnerable Canadians will likely also have an impact on those with FASD and other neurocognitive disabilities.

Considering FASD and other neurocognitive disabilities during the review will ensure that a broader consideration of options for appropriate systemic reform will take place.

Recommendation 5: Federal/Provincial/Territorial Ministers responsible for Justice and Public Safety consider FASD and other neurocognitive disabilities in the course of the criminal justice system review.

Opportunities for Further Research

The work at the FPT level primarily focused on the criminal justice system and specifically on increasing access to justice for the offender population. While there has been a growing body of information on FASD and the justice system, there continues to be a need for further research. Public policy should be evidence based and therefore, further research into the types of programming and services that would be most effective for people with FASD involved in the criminal justice system is required.

The FASD Steering Committee has identified several specific areas for further research to inform the social policy and criminal justice response to people with FASD.

(1) Identification/Prevalence

One of the challenges with developing policy options for addressing FASD in the criminal justice system is the limited data available on the extent of the problem and no validated tools to screen and identify when a person involved in the system has FASD or another neurocognitive disabilities. At this time, there are two small studies on the prevalence rates in the Canadian correctional system, and one in progress. Both of the completed studies show that FASD and other neurocognitive disabilities affect a significant portion of the offender population in the facilities where the studies took place. Both studies also attempted to utilize and validate screening tools for use in the adult offender population. However more research is required to obtain a clearer picture of the prevalence rate of FASD in the offender population and to validate an effective FASD screening tool for an adult offender population.

Recommendation 6: Jurisdictions consider undertaking studies to determine the prevalence of FASD and other neurocognitive disabilities in correctional populations.

Recommendation 7: Jurisdictions consider undertaking studies to identify and validate FASD screening tools for use in an adult offender population.

(2) Restorative Justice

Officials have indicated that the use of restorative justice with people who have FASD is possible and promising. However, more research is necessary to evaluate the effectiveness of restorative justice approaches for individuals with FASD and efforts should be made in areas of training, data collection, and engagement with existing restorative justice programs.

Recommendation 8: Jurisdictions consider evaluating the effectiveness of restorative justice approaches for people with FASD.

(3) Leveraging Existing Forensic Mental Health Services

Many provinces and territories in Canada operate forensic mental health systems that conduct the assessments for both youth and adults in the criminal justice system although most do not systematically screen for FASD. The effective use of the forensic system for assessing and supporting individuals with neurocognitive disabilities such as FASD has been identified as an area for further examination.

In June 2015, Justice Canada hosted a roundtable discussion of experts on how existing forensic mental health services could be better utilized to identify FASD in the criminal justice system. Jurisdictions could continue to explore how existing forensic mental health systems could screen for FASD and provide more information to the courts on the neurocognitive abilities of people in the forensic mental health system.

Recommendation 9: Where appropriate, jurisdictions should explore the capacity of forensic mental health services to screen for FASD and provide information to the court relating to a person's neurocognitive abilities.

Information Sharing

Many jurisdictions across the country have already recognized that FASD and other neurocognitive disabilities (as well as mental health and addictions issues) present significant challenges for the criminal justice system. As such, they have undertaken initiatives to respond to these challenges (e.g., through the development of mental health courts). This work should continue on an ongoing basis at all levels of government and across multiple sectors (e.g., health, housing, and education).

Many jurisdictions have initiated interdepartmental/interagency committees to develop more effective and collaborative system-wide response to FASD. In addition, there have been inter-jurisdictional alliances struck. For example, the Canada Northwest FASD Partnership (CNFASDP) has been in place since 1998. CNFASDP is an alliance of seven jurisdictions; Alberta, British Columbia, Manitoba, Northwest Territories, Nunavut, Saskatchewan and the Yukon, working towards the development and promotion of an inter-jurisdictional approach to prevention, intervention, care and support of individuals who are affected by FASD. One main focus of CNFASDP has been the creation and development of the Canada FASD Research Network in March of 2005. Existing inter-jurisdictional organizations, such as these, offer an excellent opportunity for jurisdictions to share best practices, identify priority areas for further research and look at the complex issues associated with FASD.

Recommendation 10: Jurisdictions are encouraged to explore opportunities for interdepartmental and interagency information sharing and collaboration on FASD and other neurocognitive disabilities.

Education

Educating justice system professionals about FASD and the implications for service delivery is one of the most repeated recommendations to improve access to justice for people with FASD. All justice system professionals should be provided with initial and regular training on FASD and other neurocognitive disabilities as well as the implications these issues have for service delivery. Understanding the people they work with, and being provided adequate tools, are key component in increasing access to justice for individuals with FASD.

Recommendation 11: All levels of government should encourage the development and delivery of education and training programs on FASD and other neurocognitive disabilities for criminal justice system professionals.

Conclusion

There has been a significant amount of work and an unprecedented level of collaboration at the FPT level to explore and analyze the issue of FASD in the context of the criminal justice system. The Steering Committee presents this as a solid foundation of information that has been provided to FPT Ministers for consideration in moving forward. This report, provides a starting point for all levels of government to address some of the challenges. The FASD Steering Committee remains available to provide FPT Ministers with any further information they may require.

Summary of Recommendations

Recommendation 6: Jurisdictions consider undertaking studies to determine the prevalence of FASD and other neurocognitive disabilities in correctional populations.

Recommendation 7: Jurisdictions consider undertaking studies to identify and validate FASD screening tools for use in an adult offender population.

Recommendation 8: Jurisdictions consider evaluating the effectiveness of restorative justice approaches for people with FASD.

1. Fetal Alcohol Spectrum Disorder (FASD). (2014, April 29). Retrieved May 09, 2016, from http://www.phac-aspc.gc.ca/hp-ps/dca-dea/prog-ini/fasd-etcaf/index-eng.php

2. MacPherson, P.H., Chudley, A.E. & Grant, B.A. (2011). Fetal Alcohol Spectrum Disorder (FASD) in a correctional population: Prevalence, screening and characteristics, Research Report R-247. Ottawa (Ontario): Correctional Service Canada.

3. McLachlan, K., & Stewart, L. (April, 2016). Preliminary findings from the Yukon FASD prevalence study: Understanding the cognitive and mental health needs of adult offenders in Yukon. Paper presented at the 7th National Biennial Conference on Adolescents and Adults with Fetal Alcohol Spectrum Disorder (FASD)

4. Supra, note 2.

5. Supra, note 3.

6. Work has been done to raise this issue within other FPT areas (Family Justice; Heads of Prosecutions, FPT Victims of Crime, etc.); however, the work of the Steering Committee centred on the areas of responsibility held by the Coordinating Committee of Senior Official (CCSO) Criminal.

7. This included the development of a training module on FASD for criminal justice system professionals and the compilation of FASD partnerships and programs across Canada.