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Seeking a better way

Court system can't handle the reality of fetal alcohol

Hey there, time traveller!
This article was published 4/3/2011 (2363 days ago), so information in it may no longer be current.

Provincial Court Justice Heather Pullan looks sternly over her glasses at the tall, soft-faced boy sitting in the prisoner's box in youth court.

"Don't say yes unless you mean it," she tells him. "It's my job to make sure you understand."

It's at least the fourth time Pullan has interrupted the sentencing hearing to translate into plain, parent-style English the mess of acronyms and legalese being thrown around in court. It's tough for anyone to follow, let alone a boy whose brain may not be firing on all cylinders because he was damaged by alcohol in the womb.

The prisoner, accused of sneaking into an old folks' home, stealing a bunch of fire extinguishers and then getting caught with bear spray, is starting to fade. Pullan notes kids with FASD often lose focus quickly, and asks him whether he'd like to take a break or forge ahead.

He forges.

The teen almost certainly has fetal alcohol spectrum disorder. The one missing link is 100 per cent confirmation his mother drank while she was pregnant, though that's strongly suspected. With an IQ of only 60, he's officially intellectually disabled but he'd evaded the notice of teachers, school psychologists, social workers and every other part of the safety net until he wound up in custody,

That's exactly the trajectory of many people with FASD, and critics say the criminal justice system needs fundamental reform to deal with the number of people with cognitive disabilities who are clogging the system.

A study by noted Winnipeg FASD expert Albert Chudley suggested that, in the Stoney Mountain Institution, about 28 per cent of the inmates had confirmed or suspected FASD and another 43 per cent had some other cognitive defect. Judges, including Mary Kate Harvie, who has championed a new way of dealing with FASD offenders, say those figures mirror what they see from the bench.

Many people with FASD are missing the part of the brain that allows them to foresee the consequences of their crimes, learn from their mistakes and control themselves. People with FASD tend to be impulsive and fearless, and they can have trouble showing empathy or remorse for crimes they've committed. They are also highly suggestible and eager to please, so they often give false testimony or confess to things they didn't do, making it tough for police and judges to tell fact from fiction. As one long-time foster parent of many children with FASD said, "their stories are part television, part some other friend's story, part truth."

Courts are almost the worst place for people with FASD, who get easily overwhelmed by the irregular schedules, the noise and smells of the remand centre, all the abstract language and the one-size-fits-all rules that send people back to jail if they miss their probation curfew by a few minutes.

They cycle through the system again and again. Petty crime turns to more serious crime, clogging court dockets and costing taxpayers millions every year. As the Canadian Bar Association pointed out in a resolution last summer, the criminalization of people with FASD is a practical problem in courts all over Canada, but it's also a legal one: Can people be punished for an act they didn't know was wrong? A better way is needed, say judges, lawyers and FASD experts.

One small program run out of the Manitoba Youth Centre in Tuxedo might be that better way.

Called, rather blandly, the FASD Youth Justice Program, it's meant to stop the cycle of repeat offenders, the kids who show up in court again and again and just don't seem to "get it."

If FASD is suspected, a judge, lawyer or probation officer can call a team of experts into action. A teen can get an official medical diagnosis, a long and tricky process that often hinges on getting a mother to admit she drank while pregnant.

Then, a sentence can be crafted to reflect the youth's disability along with a plan to get the kid back on track. Those plans could include job training at a place like New Directions, school, drug treatment, a new foster placement, anger management or some other kind of counselling or referrals to any other type of social service program.

Kids are assigned to one of the program's coordinators who act as advocates, babysitters and traffic cops, directing and making sense of the mess of services and departments meant to help offenders change direction.

The program has seen kids accused of everything from petty crime to murder, but it often runs under the radar. The law-and-order rhetoric that dominates debates over crime doesn't jibe with a program that essentially gives some of the city's chronic criminals a little latitude when they breach probation or violates their bail terms and favours treatment over jail-time.

As good as the program is, there are a few pitfalls.

Staff say they don't track how many kids reoffend, so there's no hard data to measure the programs success at stopping the cycle of crime. At a conference on FASD last spring, staff from the Youth Justice Program said about 37 participants had turned 18 so far, and among those about half had stayed out of custody. Two were dead.

Only two youths a month can get a diagnosis -- the first and most critical part of the program. Two kids is all the diagnosis clinic will take, all it has room for, and that doesn't come close to meeting the need.

Legal Aid Lawyer Corey Laberge, who works with FASD clients regularly and represents the teen who stole the fire extinguishers, said the wait to get his clients assessed sometimes leaves him with a difficult choice between pleading a kid out on minor charges so the teen can move on or drawing things out for months waiting to get assessed for FASD.

"I'm not criticizing this program in the least. It's groundbreaking," said Laberge. "It's not (enough). It's just a starting point but at least it's something."

The diagnosis must be done before sentencing, and getting the court's rigid timing to mesh with the limited availability of the diagnosis team means lawyers and judges often say "we'll him next time, when he reoffends."

"That's a pretty sad commentary," said Harvie.

Harvie said she'd also love to see the program expanded into rural Manitoba, where there's a vacuum of diagnosis and specialized help for kids with FASD. The program already has tentacles into The Pas, but no where else.

And, there's still work to be done getting police, group home staff, probation officers, corrections officers up to speed on FASD. Harvie says awareness has skyrocketed since the Youth Justice Program started six years ago, but parents and lawyers say there much more to be done.

In the case of the teen who stole the fire extinguishers, Laberge makes that point to Provincial Court Judge Heather Pullan when he asks her to assign a probation officer with high-level FASD training to his client. If the right team is in place to supervise and support the teen, good things can happen.

If not, "he's going to end up in Headingley," says Laberge.

Pullan is sympathetic. Later, when she's reading the conditions of the teen's 12 month probation, keeping them short so he might actually follow them, she gives him another nudge.

"Keep the peace and be of good behaviour. That means: You Behave," she says as the boy lets slip his only small smile of the morning.


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