Without screening or supports, offenders with FASD face revolving door of justice

The TRC's calls to action included recognizing the need to address and prevent fetal alcohol spectrum disorder as a priority and justice reforms to better address the needs of offenders with FASD.

TRC called for reforms to address needs of offenders with FASD, and for prevention to be made a priority

Russ Hilsher was diagnosed with Fetal Alcohol Spectrum Disorder as a baby. Now 40, he has been in and out of jail for assaults, thefts and breaching court conditions over the last 15 years. He says the routine and structure of prison worked for his FASD but it also meant he was sharing a space with people who would take advantage of his disability. (Kelly Malone/CBC)

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.

If I could [serve my time] by myself in my own little space I would be alright.- Russ Hilsher

"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 what 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 all right," 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.

Fetal Alcohol Spectrum Disorder is a brain injury that is caused when a mother drinks alcohol while pregnant. (Radio-Canada)

What is 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.

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.

'Very little is actually being done'

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.

Many jurisdictions in Canada put warning labels on bottles of alcohol. (Mike Rudyk/CBC)

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.

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.

Lack of diagnosis

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."

People with FASD have difficulty following legal supervision orders and don't respond the same to traditional treatments, which often results in high recidivism rates and a revolving door in the criminal justice system. (Ryan Cheale/CBC)

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.

An invisible disability

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 affects 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."

In 2011, Correctional Service Canada did a research study of FASD prevalence at Stony Mountain Institution in Manitoba that found the FASD rate among inmates was at least 10 times greater than in the general population. (CBC)

25% of Stony Mountain inmates may have FASD

A three-year research study into prevalence in Yukon's corrections population, released last November, found 17.5 per cent of study participants had fetal alcohol spectrum disorder. There were also significant rates of cognitive impairment, addiction and mental health difficulties.

In 2011, Correctional Service Canada did a research study of FASD prevalence at Stony Mountain Institution in Manitoba. It found that 10 per cent of participants had FASD, and another 15 per cent met some of the diagnostic criteria, but were missing information to make a confirmed diagnosis — such as maternal confirmation of drinking during pregnancy. That means the FASD rate was at least 10 times greater in Stony Mountain than in the Canadian population.

It concluded that "there is a population within CSC who are affected by FASD who are currently not being recognized upon intake, and are not being offered the types of services or programs that meet their unique needs."

There's a cost on the community, families and the offender, with such high numbers of people with FASD behind bars. But there's also a significant financial cost when people with FASD enter the criminal justice system.

A recent Canadian cost-of-illness study on FASD estimated that the national cost in 2013 ranged from $1.3 billion to $2.3 billion. The second highest contributor to the total cost was corrections, accounting for 29 per cent or $378.3 million.

A lot of that money goes to managing the person when they are in front of the courts or behind bars, not actually working on a treatment plan.

Research has shown that people with FASD have difficulty following legal supervision orders and don't respond the same to traditional treatments, which often results in high recidivism rates and a revolving door in the criminal justice system.

Difficulty following orders

Trevor Russel, 37, first faced the courts as an adult in 2012 for an assault charge. Like many people with FASD, he also had issues with breaching his probation orders.

Born in Winnipeg, Russel was in and out of foster care before becoming homeless as a teenager. He looks all around the room as he explains how his teachers didn't know what to do with him in school. He hadn't been diagnosed with FASD but everyone thought he had attention deficit disorder and was hyperactive. He struggles to sit still.

Trevor Russel, 37, was diagnosed with FASD as an adult. After connecting with support organizations, he began to understand how he saw the world differently and was able to make changes in his life. (Kelly Malone/CBC)

"I got arrested a few times when I was AWOL because I was too young …. The group home dad would call the police and they would come pick me up and I would be drunk on a bench somewhere or sleeping in a bus shack or whatever," Russel said.

When Russel eventually ended up at a remand centre he had difficulty following orders and staying out of trouble, but no one was looking at whether he had FASD, he said.

Most of the challenges I have are just memory things.- Trevor Russel

"I went to the hole once for fighting and that was only like five days. Five days sucked. Even one day sucks because you don't know what day it is," he said.

After being released and hitchhiking around Canada, Russel was connected with a support organization in Winnipeg and was finally diagnosed with fetal alcohol spectrum disorder. At first, he said it didn't really mean anything to him but once he started connecting with organizations that specialize in helping people with FASD he began to understand how he saw the world differently and was able to make changes in his life.

"Most of the challenges I have are just memory things. Like, I will forget. I knew I had something to do today but I just couldn't remember what it was," he said.

He thinks about his life 10 years ago, when he was in and out of jail, and his life now.

"Now I'm in a house, I have pets and I'm speaking to people, and it's fun," he said. 

Most jails not screening for FASD

It's not clear how many people behind bars have FASD and there's no consistent strategy on how to tackle the issue throughout the criminal justice system. In some provinces, people with FASD go to a special mental health court that is more equipped to deal with addictions and mental health issues and in others there are dedicated resources for diagnosis when it comes to youth offenders.

Each province and territory has a different approach, but most do not do FASD screening upon entry into a jail and do not keep statistics.

A spokesperson for the government of the Northwest Territories said they have a wellness court but do not track numbers for people in jail with FASD, although they "believe there are a significant number."

In British Columbia, inmates who are accepted into the Integrated Offender Management Homelessness Intervention Program are screened for FASD, but that doesn't include all inmates.

A spokesperson for Correctional Service Canada said it is committed to responding to the needs of federal offenders with FASD. In an email to CBC News, spokesperson Stephanie Stevenson pointed to a mental health screening during intake into a prison and said there is a "multi-pronged approach" when it comes to offenders with mental health needs.

A member of the Aboriginal Peoples Senate Committee says something needs to be done to help prevent people with FASD from cycling through the justice system. (Sean Kilpatrick/Canadian Press)

A spokesperson for Justice Canada said in response to the Call to Action #34 "The Government of Canada believes that the criminal justice system must be responsive to individuals living with fetal alcohol spectrum disorder, as well as those living with other disabilities and with mental illness."

As part of its justice system review, the government is "examining measures to address the overrepresentation of vulnerable populations, including offenders with FASD, mental illness, and addictions issues. We are also working to address gaps in services for these vulnerable groups that exist throughout the criminal justice system and to improve accessibility, both for victims and offenders."

The spokesperson added that last year's budget committed $5 billion over 10 years toward making mental health care more accessible across Canada.

Resources and support need to be funded before a person comes into contact with the criminal justice system, said Kim Pate, a Canadian senator and member of the Aboriginal Peoples Senate Committee. The criminal justice system shouldn't be the default way to deal with people with FASD, she said.

"Individuals with FAS often have cognitive challenges that make it very difficult for them to manage in a prison. So, most prisons would say that they really can't address the needs that individuals with FAS come in with," she said.

If Canada keeps cycling people with FASD through the criminal justice system it's a "recipe for more disaster," she said.

"I think it's absolutely vital that we not just talk about it," she said.

"The reason the TRC didn't make recommendations but calls to action is exactly that. They were calling us to action and I think it's time we take up that."

This story is part of our project Beyond 94: Truth and Reconciliation in Canada. Read more stories in the series and look for further coverage this week.