Without screening or supports, offenders with FASD face revolving door of justice
TRC called for reforms to address needs of offenders with FASD, and for prevention to be made a priority
By Kelly Malone, CBC News
Russ Hilsher’s criminal record goes back more than a decade, to an assault charge in 2003. The 40-year-old has been in and out of jail for breaching conditions, other assaults and theft since.
On paper, Hilsher’s background tells a different story than the one the father of two talks about when he explains how he struggles to understand rules, laws and how to interact with police.
Originally from Ghost River, near the mouth of the Cheepay River in northeastern Ontario, Hilsher’s birth mother drank during her pregnancy. He was taken from her soon after and was diagnosed with Fetal Alcohol Spectrum Disorder as a baby.
As a teenager he landed in a foster home in Winnipeg and struggled to adapt to city life. Hilsher often has a wide smile on his face, but his eyes take on a serious expression when he explains how he interprets the world differently. When Hilsher was younger, if he saw something on the street he would take it. He didn’t think it was theft.
“Like you guys [who don’t have FASD] are knowing it’s not yours, but to someone who has FASD it’s just lying there, so it has to be mine. Why can’t it be mine, right?” Hilsher said.
Eventually that landed him behind bars. Hilsher said the routine and structure of prison worked for his FASD but it also meant he was sharing a space with people who were taking advantage of him. Hilsher said that he would just say “Yes” when people asked him to do things and he would end up getting in trouble, not really understanding that we he had done was not OK.
“It’s almost like if I could [serve my time] by myself in my own little space I would be alright,” he said.
In the prisons and jails it’s easy to mistake somebody’s behaviour as antisocial or oppositional when it’s really a result of having FASD, said Howard Sapers, the independent advisor on corrections reform to the Ontario provincial government and former Correctional Investigator of Canada. And in prison when people don’t follow orders or don’t seem to learn from mistakes, they face more discipline.
“This just creates a very, very negative cycle. And it just reinforces bad behaviour,” Sapers said.
The first thing to do in corrections is to recognize that FASD is a real and profound issue, Sapers said.
Signs of FASD
Fetal Alcohol Spectrum Disorder (FASD) is a brain injury that is caused when a fetus is exposed to alcohol. It is the leading known cause of preventable developmental disability in Canada, affecting at least one per cent of Canadians, according to Health Canada.
FASD can range from mild to severe. Some people show physical signs, like a smooth ridge between the nose and upper lip and a smaller head, but many of the conditions associated with FASD are cognitive and those can “have important legal and practical implications for the criminal justice system,” the Correctional Investigator’s annual report said in 2015.
Many people with FASD have difficulty understanding the consequences of their behaviour, struggle to connect cause and effect, have impulsivity, drug or alcohol problems and struggle to learn from mistakes.
Research is not clear just how large the impact of FASD is in Indigenous communities but a link has been established between substance abuse and people who went to residential schools or were separated from families through the Sixties Scoop — Indigenous children who were removed from their families and adopted to non-Indigenous families — along with the generations that followed them.
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Research suggests up to a quarter of inmates in federal corrections could have FASD. But in the three years since the Truth and Reconciliation Commission (TRC) issued its report, which included 94 Calls to Action, there has been little action on developing a national strategy or plan.
In Call to Action #34, the commission called on federal, provincial, and territorial governments “to undertake reforms to the criminal justice system to better address the needs of offenders with fetal alcohol spectrum disorder” including increasing resources for FASD diagnosis, bringing in exemptions from mandatory minimum sentences for offenders with FASD and providing parole resources so people with FASD can live in the community.
Call to Action #33 also called on governments to “recognize as a high priority the need to address and prevent fetal alcohol spectrum disorder.”
“Very little is actually being done to address the issues and we are quite disappointed,” said Ivan Zinger, the Correctional Investigator of Canada.
Within Correctional Service Canada, which deals with federal inmates, only seven specialized assessments for fetal alcohol spectrum disorder were funded across the country in 2016.
When it comes to provinces and territories, each has a different approach, but most do not do FASD screening upon entry and do not keep statistics.
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Even outside of the criminal justice system, funding is extremely limited.
In May 2017, then-federal Minister of Health Jane Philpott, now the Minister of Indigenous Services, announced $3.6 million in federal funding from the Public Health Agency of Canada for five projects “aimed at preventing and screening for alcohol use in pregnancy.” It was also dedicated to better identify “individual and population groups most in need of support.”
But the funding was not new at the time. It was the same $3,650,206 earmarked in 2016 to fund certain projects over a period of five years.
Nor is it an increase in funding. It is actually a decrease compared to the previous federal government.
From 2008 to 2014 — also over a five year period — the Public Health Agency of Canada spent a total of $12.45 million on the Fetal Alcohol Spectrum Disorder Initiative.
For the families and communities dealing with FASD, the results of inaction are severe. Every time a loved one with FASD intersects with the criminal justice system, research shows they will likely be failed by it.
In prison, people with FASD are more likely to be involved in institutional incidents, are more likely to get charges while behind bars, typically spend more time of their sentence incarcerated and are less likely to complete programs, Zinger said.
“The correctional outcome is actually quite poor,” he added.
In a Winnipeg provincial courtroom last August, defence lawyer Wendy Martin White told a judge that while everyone knew her client, a young Indigenous man sitting in a chair staring at his red running shoes, had FASD — his mother even confirmed she was drinking while pregnant — he had not been formally diagnosed.
Even without the diagnosis “what we think of normally for rehabilitation has to be thought of differently for someone like [my client],” she said.
Martin White’s client rocked back and forth in a chair placed between lawyers and in front of the provincial court judge. When asked if he had anything to say, he slowly responded “I don’t know what to say.”
“I just focused on listening. I never thought about what to say.”
Up to 60 per cent of Martin White’s clients are either confirmed to have, or are suspected of having, FASD, she said in an interview with CBC News. It means that a lot of her time is spent navigating the challenges that brings.
She talks about a client with FASD who was charged with a serious offence. He was from northern Manitoba but was being held at a remand centre just outside of Winnipeg. Martin White had been sending him materials to review before his trial and she was told he seemed to understand what was going on.
Finally Martin White was able to go and review the materials with her client and quickly realized that something was wrong.
“Not only could he not read or write, he was legally blind,” she said.
People with FASD will agree with things even if they don’t understand them, Martin White said. Often that means they can plead guilty without understanding the charges or implications.
She said it’s an invisible disability that affect their every interaction with the justice system — from encounters with police to plea deals to probation — but the system still doesn’t understand what it is, how it affects offenders and what can be done to reduce recidivism or divert people from the courts altogether.
“Are they manageable in the community? If they had the right supports would this have happened? Can we get them on the right system of support so that they are better at reintegrating into the community?” Martin White said.
“Is that not better for them than being in custody, where nine times out of 10 they are going to end up in segregation and their suicide rate goes up or other things go up because they just can’t handle that kind of environment well.”