The invisible disability caught in Canada’s prison system

The young man was illiterate, had an IQ below 70 and couldn’t tell time on an analog clock.

After receiving a court-ordered curfew, he started asking other people to notify him when it was 8 PM, in order to comply with that condition. Karrie-Noelle Plohman — an outreach program manager at Winnipeg’s Touchstone FASD Program who worked with the man — recalls that he quickly became aware of what it looked like outside at certain times, and when the sun set.

But the seasons changed. The sun started setting at different times.

“So he ended up getting repeated curfew breaches simply because he couldn’t actually tell time,” Plohman says.

It’s just one of the many problems that people with Fetal Alcohol Spectrum Disorder (FASD) face in the criminal justice system due to difficulties with impulse control, learning from mistakes and understanding complex instructions or abstract concepts of cause and effect.

These issues are well documented. But advocates suggest that Canada’s federal, provincial and territorial governments are largely failing to actually address them — and arguably contributing to the overcrowding crisis in penitentiaries, along with the high recidivism rates.

As the ability to diagnose people improves, some of the harshest critics of the justice system are pushing for a radical overhaul of how people with FASD are dealt with in the Canadian criminal justice system, as well as posing broader questions about whether such people even belong in carceral institutions in the first place.

“We keep cycling someone through and recriminalizing people with FASD on breaches because they don’t understand what probation orders are or can’t quite connect the dots how their behaviour could lead to a breach, which could land them back in jail,” Plohman says.

Plohman says she recently heard of a judge who always knew there was going to be someone with FASD coming before him based solely on the physical size of the file.

“It’s a totally distinct, specific condition that’s clogging the jails and the courts,” says Larry Bagnell, a Liberal MP who recently proposed a private member’s bill that would amend the Criminal Code to require the specific consideration of FASD in sentencing and incarceration.

Jonathan Rudin, program director of the Aboriginal Legal Services of Toronto, adds that people with FASD get “really uncomfortable” with the type of stimulation that are present in courtrooms and carceral institutions, which can lead to people accepting court-ordered conditions without necessarily understanding them.

In addition, Plohman says that court-appointed lawyers are also usually “quite overwhelmed” and don’t have a lot of time to spend with people prior to walking into court, meaning that people with FASD will often be encouraged to say “yes” to conditions without having any concept of what they’re actually agreeing to.

Unfortunately, there aren’t any clear numbers on the percentage of individuals with FASD in prisons, jails and remand facilities.

Howard Sapers, Canada’s former correctional investigator and current independent advisor to Ontario on corrections reform, says that one study estimates the number is between 13 and 26 percent, a “pretty wide variance.”

A 2008 report by Public Safety Canada cited anecdotal evidence that 50 percent of Indigenous inmates had FASD, while 100 percent of Indigenous community members with FASD had experienced incarceration. Meanwhile, a 2013 meta-analysis conducted by the Edmonton-based Institute of Health Economics concluded that FASD prevalence in correctional systems ranged between 9.8 and 23.3 percent.

In other words, estimates are all over the map.

Rudin of the Aboriginal Legal Services of Toronto says the lack of precision is at least partly due to FASD being an “invisible disability,” noting it’s almost impossible for an adult to get a diagnosis as there’s no simple blood test or ability to verify maternal alcohol consumption during pregnancy.

“People in the justice system often don’t know that someone has FASD and because the justice system moves so quickly our default position is everyone is competent and everyone understands what’s going on,” Rudin says.

But Sapers says Canada’s criminal justice system has vastly improved the tools, science and resources it uses to do screening and assessment.

And there are increasingly rapid ways to diagnose FASD, he says, with additional technologies under development; he points to initiatives in New Zealand, Australia and Washington state as ahead of anything found in Canada.

However, Sapers emphasizes that diagnosis doesn’t necessarily translate into better care or more therapeutic environments. That’s especially relevant given the criminal justice system often incarcerates people for a limited amount of time: he notes that in Ontario, the average length of time in provincial system is less than 60 days.

“The bottom line is that it’s really the behaviours — the manifestations of the disorder — that corrections needs to do a better job of addressing,” Sapers argues. “And frankly, I’ve come to a position where I’d rather see more effort being put into treating people as if we had a diagnosis than counting on our ability to provide a diagnosis.”

That’s why organizations like the Aboriginal Legal Services of Toronto often operate with the default assumption that people may have cognitive difficulties such as FASD.

Rudin says that means physically reading out instructions to all clients and attempting to create an environment where people feel comfortable asking questions. That follows some initiatives in Manitoba, which has developed graphics and very plain language to explain what certain probation and bail conditions mean.

It’s also why Bagnell introduced Bill C-235 in February 2016, aiming to introduce four major changes: allowing judges to order an assessment for FASD, mitigate the sentence if it’s a positive assessment, require correctional staff to treat people with the conditions differently and ensure there’s a clear plan in place upon release to prevent the “revolving door” effect.

Most of Bagnell’s Liberal colleagues voted against the bill, resulting in a 170-133 loss.

Prime Minister Justin Trudeau didn’t vote, but high-ranking ministers such as Public Safety Minister Ralph Goodale, Justice Minister Jody Wilson-Raybould and Finance Minister Bill Morneau all opposed the measures.

Bill Blair, Parliamentary Secretary to the Minister of Justice, told the House of Commons that his government opposed the bill because it singled out FASD, to the exclusion of other disabilities. “I want to emphasize at the outset that the government fully supports the very laudable objectives of the private member’s bill,” Blair added.

Surprisingly, 15 Conservative MPs broke party ranks and voted for it, along with a sizable contingent of Liberal backbenchers.

Bagnell says he’s going to continue lobbying for parts of the bill to be included in other pieces of legislation, especially the ongoing review of the Criminal Code by Minister Wilson-Raybould.

But perspectives differ on that efficacy of such goals.

As Plohman points out, it almost becomes more of an ethical question about whether it’s even desirable to criminalize people with disabilities who don’t actually have the capacity to modify or fix their behaviour in the way that we would assume they should. “This is not necessarily a criminal justice issue,” Sapers concludes. “Do you punish somebody because they’re intellectually impaired? Do you punish somebody for their addiction or mental illness? These are valid questions that speak to the purpose of the criminal justice system. From that standpoint, it is a broader social issue as opposed to a narrow criminal justice issue.”