Update: Bill C-235 – An Act to amend the Criminal Code and the Corrections and Conditional Release Act

On November 3rd, 2016 Parliament discussed Bill C-235 (transcripts accessible here).  This Bill was introduced on February 25th by the Hon. Larry Bagnell, MP (Liberal) Yukon.  The proposed Private Member’s Bill includes amendments to the Criminal Code and the Corrections and Conditional Release Act.  These amendments focus on addressing and accommodating individuals with FASD in the criminal justice system.  The full text of the Bill can be accessed here.

While the Bill has been seen by many as a much-needed intervention that could have meaningful impacts on the lives of individuals, however, there are also some challenging components to this bill. The following blog seeks to outline key elements of the bill and includes helpful links on where to find additional information.

Bill C-235 includes amendments that would require courts to consider a diagnosis of FASD as a mitigating factor.  The Bill also grants power to the court to order assessment of individuals who are suspected to be impacted by prenatal alcohol exposure for a variety of purposes including, broadly, “making or reviewing a sentence.”  The Bill also calls for expedited assessment of individuals, directing that assessments be completed “as soon as practicable.”

An element of Bill C-235 is that it grants power to the courts to presume prenatal exposure to alcohol.  This presents unique challenges relative to the updated Canadian Diagnostic Guidelines for FASD (accessible here) that were published in 2016.  In a comparison of the updated guidelines and Bill C-235, individuals may not be able to obtain a diagnosis in the community (as they cannot obtain maternal confirmation and do not present with the three sentinel facial features), yet would be able to obtain a diagnosis through the criminal justice system (as the judge can presume prenatal alcohol exposure where medical professionals are not empowered to make the same judgment).

The Bill also outlines that, for the purposes of obtaining assessment, the court may remand (that is, commit to a period of custody before sentencing) the accused “for a period not exceeding 30 days” as long as “the court is satisfied that on the evidence custody is necessary to conduct an assessment of the accused.”  That is not to suggest, however, that remand must be limited to a 30-day period, because if “a court is satisfied that compelling circumstances exist that warrant a longer period”, then the remand period may be extended. If assessed as having FASD, then the mitigating factor in sentencing could be applied.

If an individual is sentenced to probation, then the conditions of the probation order will include the establishment of “an external support plan […] that includes any components that the probation officer considers necessary to ensure that the offender has the necessary support to facilitate his or her successful reintegration into society”.  If incarcerated, the “special needs” and “special requirements or limitations” of individuals living with FASD must also be considered in correctional programming according to Bill C-235.

While not named explicitly, C-235 could be seen as engaging in the Truth and Reconciliation Commission of Canada’s Call to Action 34(i) and 34(iii) which call for “providing increased community resources and powers for courts to ensure that FASD is properly diagnosed, and that appropriate community supports are in place for those with FASD” and “providing community, correctional, and parole resources to maximize the ability of people with FASD to live in the community”. The TRC’s 94 Calls to Action can be accessed here.

Bill C-235 will go up for final reading between 5:30 and 6:30 EST on 6 December 2016.  There will be a vote on the Bill on 7 December 2016.  We hope the links in this article are helpful.  If you would like to get in contact with MP Bagnell to find out more about the Bill or how to get involved please contact Larry.Bagnell@parl.gc.ca.

-Alexandra Johnson (Research Assistant for Dr. Michelle Stewart)

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