Proceeding of the Standing Senate Committee on
Human Rights
Issue No. 22 - Evidence - Meeting of November 1, 2017
OTTAWA, Wednesday, November 1, 2017
The Standing Senate Committee on Human Rights met this day at 11:32 a.m. to study issues relating to the human rights of prisoners in the correctional system.
[English]
Senator Munson: Good morning, and welcome to our Standing Senate Committee on Human Rights.
As just a brief note, this will be my last meeting as chair of this committee. It has been a real education over the last two years of dealing with the issues that we have been, which have been seven or eight incredible issues from Syrian refugees to the study we are doing right now relating to the human rights of prisoners in our correctional system.
I thank Senator Ataullahjan, as my deputy chair, and other members of the committee for the collaborative work in the reports that we have put out. I wish the committee well in the next months to come.
There is some unfinished business with our GBA or gender-based analysis report that has to come out. There is also EIPA, our export and import permits report which will be out soon and, of course, we are dealing with the prisoners issue in Rohingya and ongoing reports.
It has been a real pleasure to be your chair.
We will begin.
[Translation]
Before we begin, I would invite the senators to introduce themselves.
[English]
Senator Bernard: Wanda Thomas Bernard from Nova Scotia. Welcome.
Senator Hartling: Nancy Hartling from New Brunswick.
Thank you very much, Senator Munson, for all your work with us. I appreciate it.
Senator Pate: Yes, thank you very much for chairing and for your leadership on so many of these issues. Kim Pate, Ontario.
[Translation]
Senator Brazeau: Great work, Senator Munson.
Patrick Brazeau, senator from Quebec.
[English]
Senator Munson: We will continue discussing issues relating to human rights of prisoners in the correctional system.
As I mentioned before, there will be an interim report this month. We will have a final report sometime in the middle of next year, but we want to stay on top of this issue.
I have a strong relationship with Citizen Advocacy Ottawa, working with that group on many levels and on many occasions. Nancy Lockwood is the Program Manager, Fetal Alcohol Resource Program.
Welcome to our committee, Ms. Lockwood. You have the floor, and we will certainly have lots of questions for you.
Nancy Lockwood, Program Manager, Fetal Alcohol Resource Program, Citizen Advocacy Ottawa: Honourable Senator Munson and honourable members of the Standing Senate Committee on Human Rights, thank you most sincerely for inviting me to speak to you today on the complex topic of fetal alcohol spectrum disorder, known as FASD, and its relationship with Canada’s prison system.
I am the Program Manager of the Fetal Alcohol Resource Program at Citizen Advocacy Ottawa, a pilot project resulting from a collaboration between our organization; Kids Brain Health Network, which is a national centre of excellence; the Children’s Hospital of Eastern Ontario; and the Children’s Aid Society of Ottawa.
Our program coordinators provide FASD education workshops to professionals and agency staff in multiple sectors including justice, and provide system navigation to individuals with FASD and their families to informed supports. Today I will share with you research indicating that individuals with FASD are overrepresented in Canada’s prisons, reasons why this occurs, a discussion focused on why prison is not the right fit for most individuals with this permanent brain injury, and recommendations for improving the way individuals with FASD are treated in our court system including alternatives to incarceration.
According to the national research organization, CanFASD, it is estimated that 4 per cent of Canadians have FASD, though many are undiagnosed or misdiagnosed with disorders such as autism, ADHD and oppositional defiant disorder, among others. Prevalence studies of FASD in Canada’s prisons have found rates ranging from 9.8 per cent to 23.3 per cent. In 2004, Streissguth conducted a longitudinal study and found that 60 per cent of youth and adults with FASD will experience trouble with the law.
Public Safety Canada provided anecdotal evidence in 2008 that 50 per cent of indigenous inmates in Canada had FASD. The University of Alberta School of Public Health has estimated that FASD costs Canada’s criminal justice system roughly $3.9 billion per year.
We need to understand why so many people with fetal alcohol spectrum disorder come in contact with the law. FASD is a lifelong physical disability in the form of a permanent brain injury, caused when the developing fetus is exposed to alcohol. It is a true spectrum, and no two people with FASD will be affected the same way, though certain characteristics are extremely prevalent including impulsivity, difficulty learning from consequences, repeating the same mistakes over and over, challenges with social interactions, and vulnerability to predators.
Most people with FASD have an IQ in the normal range, but many have severe deficits with executive functioning, including challenges with organization, time management, independent living and holding down employment. Adaptive functioning skills tend to be impaired. This often presents itself as a lack of common sense and difficulty understanding those unwritten social rules in our society. Most live with tremendous social isolation. Over 50 per cent exhibit inappropriate sexual behaviour resulting from the brain injury.
Adding to these challenges, research published last year by CAMH indicates there are over 400 comorbid medical conditions associated with FASD, making it a true whole-body disorder. Yet very few medical professionals are trained about this, nor about the fact that medications tend to work very differently with this population, if at all.
Individuals with FASD end up in the court system as victims, witnesses and perpetrators of crime, but I will focus on the latter given the mandate of your committee. Individuals with FASD often are not aware they are committing a crime. I will provide two examples. One member of my team worked with a high school student who was asked by a “friend” to carry a bottle of Tylenol to his next class and give it to another student. This fellow had no idea there were illegal drugs in the bottle, yet he was caught and charged with drug trafficking. David Boulding, a B.C. lawyer specializing in FASD and justice, tells a story of a young man who was asked to drive his car to a store late at night to pick up and transport some items for a friend, not realizing he was essentially assisting with a store robbery.
Many individuals end up before the courts charged with sexual crimes, which often relate to issues of impulsivity, misunderstanding of consent, and the fact that they often do better socializing with people younger than themselves.
The individual with FASD tends to lack credibility on the stand in our court rooms. Their verbal skills usually match up with their chronological age and they tend to be very talkative, disguising the fact that their receptive language skills and comprehension may be significantly impaired. Their developmental age tends to be much younger than their chronological age. The accused may not accurately remember dates, times, and the chronology of the events. Complicating this further is the issue of confabulation.
For those not familiar, confabulation refers to the situation where an individual says something that is not true but they are not lying. It is a misinterpretation of memory. They may not remember what happened but they don’t want to appear “stupid,” so they make something up. They may be trying to impress people. They may be mixing up reality with something they saw in a movie. Unlike lying, there is no intention to manipulate. Confabulation and a desire to please make the individual with FASD an unreliable witness and often cause them to make false confessions on the stand.
On the surface, jail can appear to be a good fit for someone with FASD. They are provided with housing, food, structure, organization and friends, or at least people who are posing as friends. We have even heard firsthand that some people with FASD want to go to jail because they can’t find other ways to receive these supports. Yet, there are important reasons why prison is not the right fit for most individuals with FASD. They become preyed upon in jail by predators posing as friends, who talk them into further criminal activity. They can experience sensory overload with all the issues, including noise, overcrowding and excessive stimulation, leading to outbursts and other negative behaviours. The goal of jail is to have the prisoner learn from their consequences so that they don’t repeat their mistake. Yet we know individuals with FASD largely do not learn from consequences and repeat their mistakes over and over.
One further reason why individuals with FASD repeatedly return to prison is the fact that probation orders have been designed for people without brain impairments, full of mandatory appointments and meetings. Our team has offered training to probation officers across Ontario. They have shared their experiences with us, repeatedly telling us that people with FASD frequently miss or arrive late for their scheduled meetings due to their impairments with time management and memory. They are being set up to fail. The probation officers feel their hands are tied as they know the individual cannot follow the probation order. Yet, the officer must enforce it.
The following are our recommendations for improving supports for individuals with FASD in corrections, building on research conducted by the national organization CanFASD in 2016.
One, address the barrier of diagnosis. According to a CBC report last week, Correctional Service Canada only provided funding for seven FASD assessments across the country last year. FASD can be very challenging to diagnose and ideally should be done by a multi-disciplinary diagnostic team as per the Canadian guidelines. Only 10 per cent of individuals with FASD will have the facial characteristics that are indicative of prenatal exposure to alcohol. It is a true invisible disability 90 per cent of the time. Currently, confirmation of prenatal alcohol exposure is required for diagnosis, presenting another barrier as many people with FASD are raised by foster and adoptive parents, with little birth history. Correctional Investigator Howard Sapers has recommended:
. . . more effort being put into treating people as if we had a diagnosis than counting on our ability to provide a diagnosis.
Agencies such as Aboriginal Legal Services of Toronto operate with the assumption that the accused may have cognitive challenges associated with FASD and accommodate accordingly. When a full diagnostic team is not available, CanFASD recommends screening tools such as the one developed by the Asante Centre in British Columbia.
Two, develop proactive interventions that will reduce the likelihood that individuals with FASD will have negative interactions with the law. An example used by my team is training high school resource police officers to foster positive relationships with at-risk youth before problems occur. Use a strength-based approach; people with FASD have many strengths.
Three, make FASD training mandatory for all staff working in Canada’s corrections system including training to recognize red flags that might indicate FASD, and proven strategies for successful interventions.
Four, provide accommodations in the court room that are sensitive to the needs of individuals with FASD, including accommodations to reduce anxiety, simplified, concrete language, and checking for understanding.
Five, develop alternatives to incarceration, such as supervised residential settings and work placements; probation orders that accommodate the brain impairments; mentorship programs and therapeutic or community court models that emphasize changing the environment, not the person.
Six, ensure that individuals with FASD in the justice system are given free, timely access to supports for mental health and addictions, including psychiatric, psychological, and pharmacological supports. According to FASWorld, 95 per cent will experience mental health problems, and more than 50 per cent of males and 70 per cent of females will have addictions issues.
Seven, build on the external brain model. This is an external support system set up to compensate for the brain impairments, similar to the way a wheelchair compensates for a person’s inability to walk. This can be a person or a group of people who help the individual with organization, time management, life and social skills, and finances. External brains can also involve assistive technologies such as apps or online networking tools such as Tyze Networks.
Eight, build on the work of Yukon MP Larry Bagnell, whose 2016 private member’s Bill C-235 aimed to amend the Canadian Criminal Code to require the specific consideration of FASD in sentencing and incarceration in these areas: allow court ordered FASD assessments by judges, mitigate a sentence if the accused receives a diagnosis of FASD, require that those with FASD convicted of crimes be treated differently by corrections staff, and create a plan for the individual upon release that will deter repeated recidivism.
Unfortunately, this bill was defeated by a vote of 170 to 133, but MP Bagnell is still committed to this cause as he sees FASD as “. . . a totally distinct, specific condition that’s clogging the jails and the courts.”
My three colleagues and I have provided FASD training to over 1,800 professionals and agency staff over the last two years, with the majority related to justice, including presentations to provincial court judges, lawyers, and probation and police officers. Participants at our sessions have shared their heartfelt stories about the ways that they feel they are failing their clients with FASD. Lawyers and judges have told us they wish they could retry some cases now that they understand FASD better.
We have provided community navigation to individuals with FASD and families in their desperate search for FASD-informed legal supports. Success to many of these parents is often defined as their child not being in jail, homeless or suicidal. I have a personal connection to FASD and have witnessed firsthand how hard it is to live in a society full of written and unwritten rules that have been designed for people with no cognitive impairments.
In closing, we are failing individuals with FASD when it comes to our corrections system. We are criminalizing a permanent, brain-based, physical disability, which goes against our human rights in the country. I respectfully and strongly encourage you to explore modifications to our corrections system that will increase fairness for this vulnerable population, while simultaneously increasing public safety and decreasing the economic burden this prevalent medical condition is placing on our judicial system.
Senator Munson: Thank you very much for your testimony. While I am waiting for senators to put their names on the list here, I know that your focus has been on FASD; but I will take my prerogative to ask about autism since I’m closely associated with autism and care about it immensely.
In Canada’s North, the federal government doesn’t have any programs whatsoever to deal with surveillance or detection of autism early on in a child’s life. On reserves, there are no programs. What happens is that when it is discovered that a child has ASD, that child is transported either from Iqaluit to Ottawa or, if in Nova Scotia, for example, on the Membertou reserve, as Senator Christmas told me, that child has to be taken out and sent somewhere else in Nova Scotia, which is not as culturally sensitive to that child’s needs. That child has grown up. That child has not had any services whatsoever. That child is now 14 or 15, and that child is in trouble. That child, as you say, ends up in prison or reform school or whatever on the way to the place where that child should not be.
Do you have any recommendations as to how a federal government should work with the provinces or work by itself on this occasion? They have a fiduciary responsibility for our indigenous people to deal with this issue and to be proactive on the ground so that child can be cared for and we don’t have to face this kind of circumstance in the future.
Ms. Lockwood: I definitely think we need to be culturally sensitive when we are supporting these communities. I also think we need to differentiate between autism spectrum disorder and fetal alcohol spectrum disorder. There are some significant differences.
With autism, things like cognitive behavioural therapy and behaviour modification programs can help because it’s not a permanent brain injury. I would fully recommend that it be done in the individual’s community and sensitive to their culture. I do believe in early interventions and believe they will help to avoid interaction with the law further down the road.
We know or have heard evidence that a lot of children with FASD are being diagnosed with autism spectrum disorder for a variety of reasons. I also would caution that you need someone very skilled at doing these assessments to make sure you are diagnosing the correct thing because there are significant differences. With FASD you’re talking about a permanent brain injury, and you cannot fix that. Many behaviour modification programs will not work. You need to change the environment, not the individual.
We have heard that many physicians are uncomfortable asking a birth mother if she drank during pregnancy. They sometimes prefer to assign a diagnosis of autism. Also they often think that the child will get more services if they are given a diagnosis of autism, but our position is that those are not necessarily the right services. I would say it would be wonderful within the person’s community if they had a multi-disciplinary diagnostic team that included a neuro-developmental psychologist, a medical doctor, an occupational therapist, a speech language pathologist and a social worker who understand the difference between autism and FASD, and then can work to put in places strategies that will support the child so hopefully they don’t interact with the law when they are older.
Senator Munson: We now have a list. I appreciate that. I may come back on that later.
Senator Pate: Thank you very much for your evidence and for the work you have done. Obviously you are very committed and devoted to this work.
In working with pediatricians on the issues of FAS and FASD, it has been pointed out to me numerous times that because of the link historically to maternal drinking we have tended to see overdiagnosis for certain communities, particularly indigenous communities. In fact, some pediatricians have argued that paternal alcohol and drug use is not often examined. Often the diagnosis is linked only to drinking, even though there may be issues of other kinds of brain injuries, as you have already spoken to, namely, autism, as well as inadequate health care and nutrition.
Given what we know about the conditions of too many indigenous communities, particularly reserves, their conclusion is that in fact a better approach is to take a more universal application of looking at people’s ability to function. I’m curious as to whether you’ve looked at any of those assessments where you’re actually looking at capacity as opposed to a diagnosis as a starting point.
Ms. Lockwood: We strongly believe that a diagnosis is very important. We have heard firsthand from people with FASD that once they are given a diagnosis they feel a tremendous sense of relief. There is a reason why they struggle so much in society with things that others find so easy.
That is what we do in our presentations and when we work in the community. We are working with the Children’s Hospital of Eastern Ontario, which does diagnoses for children and adult. Many people from northern communities come to CHEO for those assessments. We strongly feel that needs to be known first before we can decide how to proceed. I am not sure that I would agree that it’s being overdiagnosed. We attend all the international research conferences. All the evidence we have always heard is that it’s vastly underdiagnosed.
We have to be aware of the fact that 50 per cent of all pregnancies in Canada are unplanned and that by the time a woman knows she is pregnant she very likely could have been drinking. We have to remove the stigma. To us, the barrier is really that there is so much stigma. If we could get rid of that, then birth mothers wouldn’t feel self-conscious sharing the fact that they perhaps drank during their pregnancy. More people would seek to get a diagnosis because there wouldn’t be as much stigma assigned to it.
Did that answer your question?
Senator Pate: Partly, because, as you just pointed out, much of the approach has been around abstinence as though it can be prevented when historically women were prescribed alcohol, beer and the like while they were pregnant to stave off things like nausea. We have whole generations that weren’t diagnosed but may have had the impact.
The difficulty of diagnosis is the one I am more familiar with from pediatricians being concerned not so much about overdiagnosis for the purposes of getting assistance but overdiagnosis of certain groups where there may be other factors at play.
Ms. Lockwood: Our experience too is that not that many pediatricians even fully understand FASD. They often don’t know what the red flags are and aren’t making the referrals for assessments.
Another thing related to that is we don’t say that it’s 100 per cent preventable because sometimes women dealing with addiction issues want to stop, don’t know how to stop, and don’t have the right supports to stop alcohol consumption during pregnancy. We prefer not to emphasize that it’s 100 per cent preventable.
We are fully aware that many medical doctors are still giving incorrect information, saying that a certain amount of alcohol is okay in pregnancy. We know that it is not. After almost every one of our presentations a woman will seek us out privately and tell us that her doctor said it was all right in moderation, and that alarms us.
Senator Pate: You mentioned during your presentation today and in an interview you did in March of last year that people with FASD have needs that need to be addressed outside of the prison system and with the community support network. You have made that as a very clear recommendation.
Has your organization been approached by Correctional Service Canada to look at the opportunities for what are called sections 29, 81 and 84 agreements. If you don’t know what those are, I am happy to describe them. They are ways for the Correctional Service Canada to contract with organizations and groups to allow for people to be actually transferred out of prisons: where they don’t escape the criminalization process you have described, ways that might be avoided and where that doesn’t happen, ways to get them out.
Has your organization been approached to actually take people out of prison to provide supports for them in the community?
Ms. Lockwood: We have not been approached to do that. In fact, our mandate is just to serve the Ottawa community. We have been invited to other presentations in Ontario, but really our mandate is here. We are not in any way responding to things nationally. We also don’t offer direct support, but we offer training and support to families.
That is definitely a very intriguing area and we would certainly like to see it explored further.
Senator Pate: There are certainly are federally sentenced prisoners from this region. Would your organization be interested in having more information about that to share with other people you are doing training with about the possibility of those options?
Ms. Lockwood: We would be very interested, yes.
Senator Bernard: Thank you, Ms. Lockwood, for your testimony today. I have a few areas. I am wondering where to start.
Maybe I’ll start with training. In your response to Senator Pate you talked about the fact that you focus on training. Do you do any pre-service training for those who are in the educational programs, medicine, social work, psychology and so on? Is this work being offered in pre-service? Often we can get more traction with people when they’re in the process of their educational journey.
Ms. Lockwood: I agree. Yes, we do. We’ve been offering training in the educational system, mental health and health sectors, housing, employment, social work, and so on, in many communities. We are using a proactive approach. We very much want to put supports in place so that people with FASD have places to live, have people to support them with life skills, and have meaningful employment and employers that understand the things that might be challenging for them and what their strengths are.
If we make sure that those supports are in place we feel interactions with the law will become less common. It has proven to be the best advice for parents too. We have to make sure that the person has lifelong supports. Usually most people with FASD need lifelong supports, financial supports, and someone to help with daily living. If we can make sure those supports are in place, then jail won’t need to be the place where they have to go for that.
Senator Bernard: Are you doing training as part of the university curricula in the medical, social work and psychology programs? Are those types of programs including curricula on fetal alcohol syndrome?
Ms. Lockwood: We have been offering it. We have been presenting frequently to teacher candidates in the departments of education and social work. We have had medical students do placements with us where they design training units that they take back to their fellow medical students and use.
The medical community is harder for us to infiltrate, if I can use that word, because they tend to want to learn from other people in the medical profession. What we have been attempting to do is to find area physicians that will be willing to take this on and train other physicians.
Everything you’re suggesting are all things that we have been offering. Our program has only been operating for two years. We offer the training in all these different sectors, but it has been the justice sector that has requested the most training sessions.
Also we are putting together a database of resources in the Ottawa area. It will be publishable and searchable. People with FASD and their families will be able to find resources. We only include agencies that have received FASD training.
Senator Bernard: Picking up on one of the comments from Senator Pate around the possibility of overdiagnosis in indigenous communities, it may be rooted in some systemic racism. I wondered if it’s also possibly rooted in the oversurveillance in those communities, not to ask a question about that but just to comment on that.
Your presentation didn’t speak about any other racialized groups. There’s an absence of any information, for example, on African Canadians. I’m wondering if any of the research data is disaggregated by race. Do we have any of that information?
Ms. Lockwood: I do not believe that we have any within Canada, but there was a worldwide study published by Svetlana Popova from CAMH last year showing the most prevalent countries. For instance, Ireland was one of the most prevalent. Their rates of FASD were one of the world’s highest. I believe another was South Africa. In fact, some workers are paid in alcohol in South Africa. There definitely have been prevalence studies around the world.
Another complicating issue is that they are now finding epigenetic reasons for brain changes related to alcohol. It’s not just birth mothers drinking. They’re now starting to find, if grandparents ingested alcohol during their pregnancy with their child, that these effects are carrying on for generations. They are also starting to find some effects of paternal drinking related to pregnancy, not necessarily causing FASD.
Those are more the research studies that have been done in Canada lately. I have not seen any to do with other populations within Canada.
Senator Hartling: Thank you very much, Ms. Lockwood, for your very interesting presentation.
Throughout our study we’ve had many witnesses tell us that there is an overabundance of people with FASD in federal prisons. Maybe just to clarify, because you said a lot of things in a short time, do you have reliable statistics broken down into gender, ethnicity, age and things like that, or were you saying that it was hard because they weren’t able to be diagnosed?
Could you expand on that, please?
Ms. Lockwood: Yes. I have cited references for all of the statistics that I shared. It is very tricky because many people are undiagnosed or misdiagnosed.
For instance, with the prevalence of 4 per cent in our Canadian population, the way they have come up with that is by going into a certain population and testing everybody of a certain age and then testing in different pockets of a country. It is very tricky.
Within the prison population, those statistics are from meta-analyses of many different studies. There are other anecdotal studies where they have conducted interviews with prison guards and where the prison guards have said they think that 60 per cent of inmates in Canadian prisons have FASD.
There is a very wide range in the studies. Some say 9.8 per cent of the prison population and some say 23.3 per cent. It’s a wide range because it’s a relatively new disability. They didn’t even give it a name until the 1970s and, as I said, many people don’t seek a diagnosis.
We have also spoken to people that work at The Royal Ottawa hospital in Ottawa. They are sometimes hesitant to give a diagnosis and are sometimes calling it a neuro-developmental disability or a neuro-behavioural disability, often because we don’t have that birth history of fetal alcohol exposure prenatally.
Senator Hartling: It depends on where you come from, too, and on which province. We’re very fortunate where I come from in New Brunswick. Claudette Bradshaw was one of the ambassadors who talked a lot about this. We heard a lot about it in our province.
I’m wondering if you see across the country resources like you have. How available are they? Is it depending on the province? Can you talk about that?
Ms. Lockwood: Absolutely. In British Columbia there are very good resources. Some people say they are 10 years ahead of us. In terms of FASD they have a provincial key worker program. They have provincially funded FASD assessments. Whereas here that is one more barrier. If a family is trying to get an assessment, they have to pay about $5,000 out of pocket to get all these assessments done before they can go to the diagnostic clinic.
Alberta has very good resources for FASD, as do the territories. As you go across Canada the resources and number of assessment clinics go down. You are right, New Brunswick is the other province that has a centre of excellence for FASD and has more resources.
Yes, that in itself is a barrier. There is not equal access across the country.
Senator Hartling: Thank you very much.
Senator Brazeau: Thank you for your presentation.
One of the recommendations that you talked about was looking into alternatives to incarceration. With respect to that, are there any models in any jurisdiction, either across this country or in other countries, that have moved beyond, so to speak, the status quo of looking into this issue and have created any successful models that you’re aware of?
Ms. Lockwood: Supervised housing seems to be a good model. Jail is not a good fit in that very often they are so easily overwhelmed.
Better are sorts of mentorship programs and supervised work placements where they have a mentor. It’s best if there is someone offering one-to-one support. Largely, people with FASD are not posing a danger to society. We have found models where supervised housing, supervised employment, mentoring and courts are designed to suit their needs better and probation orders that are possible to be fulfilled.
Senator Brazeau: Are there any models that you’re aware of in other countries?
Ms. Lockwood: Australia and New Zealand seem to be leading the way in FASD and have excellent models. I can’t give you the names off the top of my head, but I would look to Australia and New Zealand.
Senator Brazeau: Oftentimes the difficulty is trying to convince governments to put financial resources into things that make sense for people.
How would you suggest that we convince governments to perhaps do the right thing in this particular case and invest money where it needs to be for the benefit of what we are discussing here this morning?
Ms. Lockwood: It would be a very smart investment to fund diagnosis, to provide mandatory education for medical professionals so they understand FASD, and to make FASD training mandatory for everybody working in the corrections system.
It’s a good investment. We know that it is really expensive for Canadian society. It is one of the biggest expenses. Svetlana Popova at CAMH, who does research to do with FASD, has found one of the biggest expenses is corrections. If we can put proactive strategies in place, we will find fewer people coming in contact with the law, entering the prison system, and we will actually reduce the cost to society, as well as make life fairer for the individual with FASD.
Senator Brazeau: I couldn’t agree more.
Senator Munson: Senator Brazeau, we should follow up with our analyst to see how well those programs are working in other countries and if we can use that as a model in this country and as part of our report.
Ms. Lockwood: We would be happy to do a little research to direct you.
Senator Munson: If could you send it along to our clerk, that would be wonderful.
Senator Pate: Ms. Lockwood, I’m going to push you a bit on what I heard as an inconsistency in some of your responses. This is not meant as critical of you.
I heard it as: If people are to end up in the system you want to train correctional authorities. I also heard you say and saw in your written recommendations that it seems you’re more strenuously recommending that people not be criminalized and imprisoned in the first place and that part of the diagnosis, education and community supports be aimed at preventing all of that.
I want to be clear I heard that correctly because it sounded like an inconsistency.
Ms. Lockwood: I can see how that would sound like an inconsistency. I look forward to a day when we have those early interventions in place so fewer people end up in the corrections system, but it is a fact at the moment that they are. I also think if people in court rooms, police officers and probation officers are aware of FASD, or the red flags that might indicate it, we can be treating somebody more fairly upfront.
We need to do that at the moment because this is a big issue. As Larry Bagnell says, people with FASD are clogging the corrections system. Putting them in jail isn’t the answer. It’s known as a revolving door. They just end up there again.
We need to invest in both. We need to think long term by putting strategies in place for early interventions and diagnoses, but for now we are dealing with this situaition in our corrections system. We need to make sure that everybody understands the unique character of FASD and strategies we use to support the person before us who has it.
Senator Pate: Mary Ellen Turpel-Lafond was most recently the advocate for young people in British Columbia. When she was sitting as a judge in Saskatchewan she noticed how many indigenous young people, particularly young men who were coming before her, had the diagnosis of FAS or FASD. She actually insisted and posited, based on a suggestion that if in fact the diagnosis meant you could not criminalize somebody, that we might actually see a reduction in the diagnosis.
I’m not sure if that’s true. I’m not sure what you think about that. She actually argued that in fact you can’t do programming in prison. She was hearing research that part of the reason individuals who were being imprisoned weren’t getting access to programs was their inability to follow through on the programs, their inability to jump through the hoops, apply for parole and do all of those things. She actually argued and in fact decided in several cases that she would not sentence people to prison even though it would be the usual tariff and insisted instead that community programs be set up.
Since then we know, as I mentioned earlier, that with section 29 of the Corrections and Conditional Release Act we don’t have to wait for the time you’re talking about, I would suggest. If you knew and if other family members knew that this provision existed and would insist that their loved ones be transferred out of prisons into appropriate health or supported living environments, how many people would you see ending up in prison who have FAS?
The corollary to that is: Would you recommend that process be implemented?
Ms. Lockwood: I understand the question. I’m just trying to think of my answer. We actually have a judge who is an adviser to our program. She started the mental health courts here and we’ve talked about this sort of thing with her.
It’s on a case-by-case basis. It depends on the crime they have been charged with, as well. The majority of things that people with FASD have been charged with could be processed non-criminally.
I’m a little stumped on how to answer your question. I’m being honest.
Senator Pate: I apologize. It’s unfair to throw out a provision that you don’t know about. This provision wouldn’t require that people not be criminalized. We’re talking about people who are already in the system. It provides an opportunity to have them moved out into appropriate mental health supported environments.
You’re suggesting another approach, which would be diversion upfront and not having people even prosecuted. This would be an option that already exists in law for people to be moved out of the prison systems into appropriate alternative settings that have not been fully implemented. It’s a policy decision and this committee has an opportunity to make some recommendations around things like policies.
Ms. Lockwood: Yes, I think that’s an ideal situation. That’s a much better fit, but what I see as the barrier is that many people haven’t been diagnosed. We saw in a report last week that only seven FASD assessments were done in Canada in the last year in corrections.
Yes, that sounds like an ideal situation, but first we need to know that they have FASD. They probably often have instead a sort of alphabet soup of diagnoses like ADHD or ODD. That’s the sort of thing we see. The first red flag we usually see is that they have all these different diagnoses.
I think that is a very good proposition. It would move a lot of people out of the court system but first we would have to devote some expertise and money to diagnosis.
Senator Pate: As long ago as when Louise Arbour was doing a review of the prison for women one of the recommendations made was that assessments not look at the risk assessment process that is used now but at the needs individuals pose and have services provided to address those needs.
I don’t want to put words in your mouth but it sounds as though that is a type of recommendation you would also support. As soon as someone comes to the attention of the police, Crown prosecutor, their own lawyer, a judge or Corrections, as soon as somebody becomes aware of those issues hopefully earlier rather than later, and with the type of training that Senator Bernard talked about, those kinds of assessments and service should be strength based or needs based as opposed to merely risk based.
Ms. Lockwood: Yes. There are some very simple assessment tools not to do diagnosis. I mentioned the Asante Centre in B.C. which has excellent publications to do with FASD. They have a very simple screening tool. Again, I’m not saying that is a diagnosis, but it’s a screening tool.
If the police officer, or whoever the person is, does the assessment and suspects that the person has FASD, they can start using strategies like concrete language, one direction at a time and one question at a time. Understanding that many of the behaviours are rooted in anxiety, they can do things that reduce anxiety in the person so that they can have a calm train of thought, remember what has happened, and that sort of thing.
If we can start using those strategies when we have a pretty good idea, even without a diagnosis, again we will be able to support the person better and find the better fit.
Senator Bernard: I’d like to ask for a bit more information on the study that you referenced.
On the first page of your report, you talk about 400 comorbid medical conditions. You say it was research published last year by CAMH. It would be useful for us to actually have access to that study.
Ms. Lockwood: Yes, absolutely.
Senator Bernard: Also, if there were recommendations from that study, they would be helpful to us.
Ms. Lockwood: Yes. It’s actually very important because we didn’t really understand that FASD was a whole-body disorder until quite recently. It can affect every system and organ in the body, but that also means things like a medication for ADHD might be very dangerous for them because they might have unknown heart issues or things like that. We also know that medications don’t work correctly often with this population, if at all.
It is all different pieces of the puzzle, but it is all interrelated. Yes, we can make sure you have access to that study.
Senator Hartling: I have a question. If somebody is in the prison system with FASD or other disabilities, what could be some of the problems, issues or challenges that could happen? What could happen there?
Ms. Lockwood: A lot of the negative behaviours stem from anxiety. Sensory issues can be a real problem for people with FASD. They are often really sensitive to bright lights like this, to sounds that the rest of us can screen out, to overstimulation, to too many people or to too much talking. Sleep issues are an extremely big area of need for people with FASD. They often have trouble falling asleep and staying asleep. They don’t usually get into that good restorative sleep. All of those things can affect behaviour negatively.
They often don’t do well with people in positions of authority who are approaching them with a very authoritarian approach. That also can also bring out negative behaviour. It really is not a great setting because there just aren’t opportunities for downtime.
For people with FASD they have to work much harder than the rest of us. They tire easily. They usually can only work half time. To have full day programming could be very overwhelming. Sensory overload, I would say.
Senator Hartling: They could possibly get into some kind of trouble because they’re not able to follow and end up in segregation or somewhere where it would be even worse for them.
Ms. Lockwood: Exactly, and even things like work placements within the prison system they may not be able to do. They may not be able to follow the instructions. They usually need one instruction at a time, a work buddy and that sort of thing. It’s not too likely you will find that in the prison system.
Senator Munson: Are there any other questions? If not, we thank you very much, Nancy Lockwood from Citizen Advocacy. You gave us a number of recommendations and we’ll follow up on what is happening in other countries, plus what we just heard about you talking about CAMH and so on. It is important that we know there are thousands of people in Canadian prisons who shouldn’t be there. There should be other avenues for rehabilitation in their lives.
We have two new witnesses to add to our conversation and our dealings with a report. We will have an interim report, hopefully at the end of this month, and a full report sometime next year.
Our witnesses are from the Royal Ottawa Mental Health Centre, J. Paul Fedoroff, Director, Sexual Behaviours Clinic; and from the Canadian Academy of Psychiatry and the Law, Dr. Brad Booth, Vice President.
I understand you will go first, Dr. Booth.
Dr. Brad Booth, Vice President, Canadian Academy of Psychiatry and the Law: Thank you very much for taking the time to explore this very important issue and for inviting both of us. We are both forensic psychiatrists.
Today I am representing two organizations. The President of the Canadian Psychiatric Association was to be presenting as well but unfortunately had some last-minute health issues, so I’m bringing in some of those words as well. The Canadian Psychiatric Association is a voluntary organization that represents Canada’s 4,600 psychiatrists and 900 psychiatric residents.
The second organization I’m representing today is the Canadian Academy of Psychiatry and the Law. We represent Canada’s forensic psychiatrists. You may be familiar with us, but forensic psychiatry is a branch of psychiatry with specialized training in the assessment and treatment of individuals with both mental health issues and concurrent legal issues. Obviously this includes individuals who ultimately are in the courts and within the Canadian correctional system.
I’m aware that the committee has done a number of site visits to various institutions. As the committee has also likely heard from Dr. Zinger and others, people with mental illness are overrepresented in the criminal justice system, both the provincial and the federal systems.
From a psychiatric point of view we think this relates to the phenomenon that in the olden days we called deinstitutionalization. You may be familiar with this, but back in the 1950s and the 1960s there was a reduction in the number of psychiatric beds. At the same time it became more difficult to commit individuals to institutions. Also, it was harder to treat individuals. What happened was an emptying of our chronic care facilities. Unfortunately, there weren’t supports in place for those individuals leaving the institutions. That remains a paucity in terms of service provision for individuals with severe mental health issues.
Rather than a portion of those individuals attaining independence in the community or having appropriate supports, they then migrated into the correctional and the court systems. There is actually a formalized term in the literature called transinstitutionalization. In other words, a portion moved from chronic care facilities into jails, which many people have called the modern asylums of the 20th century.
As you have also likely heard, individuals who get into the criminal justice system often suffer from mental health issues, including mood disorders, depression, anxiety, substance use disorders and psychotic disorders. Dr. Fedoroff can attest to his experience in this regard.
We see a number of individuals with intellectual disabilities and autistic spectrum disorders. We are seeing increasing rates now of individuals who are dementing within the correctional system. Again, in the past it was not necessarily a large representative sample of individuals but certainly a growing proportion. I am aware also that the committee heard from Dr. Zinger about the fact that there has been a large increase in the number of individuals who are elderly within our prison system.
Another thing that we are aware of as psychiatrists is that our indigenous populations are disproportionately overrepresented. Many of those individuals come in with complex trauma issues and substance use disorders and are not being well serviced within our correctional facilities. Jails and prisons weren’t constructed to provide mental health care, so not surprisingly they are not optimal places to provide mental health services for this already disadvantaged and stigmatized population.
Within prisons, mentally ill inmates are often victimized and terrorized. They’re denied appropriate services. This is particularly so also for individuals with gender identity disorder, transgendered individuals, and individuals who identify as lesbian, gay or bisexual. Correctional staff weren’t necessarily trained to deal with these complex issues. Some of these individuals can even be difficult to manage within a highly specialized psychiatric facility, so it’s not surprising that Correctional Services may struggle because that’s not really their mandate.
That being said, for some individuals getting into the criminal justice system has actually in fact been a gateway to get services. There is a lack of services available for mental health across the country, so there are wait times to see a psychiatrist, a counsellor or for appropriate services. It is a very large area of underserviced medicine within Canada.
We see multiple points of potential opportunity for improvement in the current system. The first one is at the entry point into the criminal justice system. Mentally ill individuals often struggle with navigating the court systems. There certainly are some attempts to divert these individuals in trying to get appropriate services for them, but once you have a combination of mental health issues plus criminal justice you get a double stigma. It’s very hard to find individuals who will take on the cause of this disenfranchised population.
In addition, a minority of individuals are able to tap into forensic psychiatry services, but most individuals with mental health issues won’t qualify for a finding of not criminally responsible on account of mental disorder, or they wouldn’t be found unfit to stand trial. They don’t really fall directly under the umbrella of a forensic psychiatry treatment program.
We do worry that mandatory minimum sentences and the truth-in-sentencing initiatives do not allow significant mental health issues to be appropriately taken into account by individuals such as judges and the criminal justice system.
The second point for potential improvement within the system is actually within the correctional system itself: recognizing the overrepresentation of mentally ill individuals in corrections. There is an inadequate number of services, support and treatment available for them. Nationally there is a shortage of general psychiatrists and an even greater shortage of forensic psychiatrists and other multi-disciplinary workers who would be appropriately trained, skilled and interested in working with this population. Qualified individuals are often reticent to work with these populations, again given that double stigma.
Currently, most mental health services have a correctional focus rather than a mental health focus. It’s really on security, punishment and containment rather than what will actually be helpful for the individual.
The lack of appropriate services and support in prisons for mentally ill persons also represents from the CPA’s perspective unacceptable rates of seclusion and a lack of appropriate treatment. If you have somebody who is actually incapable of understanding their illness and getting treatment, there are few places within the correctional system where appropriate involuntary treatment could be given.
It’s often difficult to have these individuals treated in the regular health system because our general hospitals aren’t equipped to deal necessarily with individuals who have that comorbid mental health and criminal justice element.
Inmates of indigenous descent, as we have discussed, are significantly overrepresented in jails and prisons, as are female offenders. Many of them have psychiatric diagnoses and histories of psychiatric hospitalizations. Again, as I mentioned, jails have inadequate supports for our aging inmates who may suffer from dementia or other physical health issues. Those with cognitive impairments may come into the forensic system.
The final potential point of improvement would be on discharge from the facility. Most individuals who come into federal or provincial corrections will get out at some point. Unfortunately, mentally ill and elderly offenders face further barriers on release, including a lack of support to facilitate community integration.
As well, individuals exiting with a criminal record can find it very difficult, if not impossible, to find gainful employment. I have had individuals, even seeking out manual labour, who because of a criminal record check would never apply. They are left without employment unfortunately. There is very good evidence to suggest that employment would decrease an individual’s risk of recidivism. That becomes a barrier for life stability. A criminal record also affects elderly offenders. Unfortunately many of those individuals may be barred from going into appropriate supportive living such as a nursing home. There are many areas that we have concerns about.
There are a number of recommendations that the Canadian Psychiatric Association and CAPL, the Canadian Academy of Psychiatry and the Law, would put forward to the committee.
The first is that the federal government strike a commission to review the effects of institutionalization and hold provincial governments accountable for appropriate resources in the hospitals and in the community.
The second is that the government consider separate funding streams for people with serious mental illness to ensure there are sufficient beds and resources available for people with mental illness as long as they need them.
The third one would be that as psychiatric resources do move to public general hospitals and to the community there has to be a close accounting to ensure that the funds are not diverted away from mental health to other services. For example, when you’re in a general hospital those services may go toward cancer care, surgery or other needs within the hospital.
The fourth one would be that resources and services are put in place to provide appropriate and sufficient non-forensic, non-correctional mental health treatment so that there are avenues to divert people into before they become criminalized.
The next recommendation would be that research be supported so that we can look into the predictors of individuals with mental illness and how they become involved in the criminal justice system and how we may prevent that criminalization of the mentally ill.
The next one would be that the government reviews the impact of the new crime legislation, including mandatory minimum sentences, and how that is affecting individuals with mental illness as well as other marginalized populations.
Provincial and federal correctional services should also consider developing psychiatric treatment units, but with oversight from health care individuals rather than correctional individuals. I know the committee has likely also heard of some of the challenges within correctional facilities where there is that pull between a correctional mandate versus a mental health mandate.
We would also recommend that all inmates be screened on admission for mental health issues and a treatment plan instituted, including appropriate mental health and medical supports. Correctional officers and correctional mental health staff should receive enhanced training rather on how to deal with psychiatric issues and recognize them so that they can then divert those individuals for appropriate intervention.
Segregation of psychiatric patients at risk of self-harm and for other reasons needs to be reviewed closely and at regular intervals. There does have to be a strong involvement from professionals and experts like psychiatrists and forensic psychiatrists in those evaluations.
Government should also explore funding options to try to encourage mental health professions including psychiatrists and forensic psychiatrists to serve this stigmatized population, both within the institution and also on release.
Lastly, government should be taking steps to remove employment barriers. I would suggest for all offenders, but particularly for those with mental health issues who are already one behind when they get out. Those would be the recommendations from our organization and our initial comments.
Thank you again for allowing both the CPA and CAPL to appear before you today. I would be happy to answer any questions. It likely would make sense for Dr. Fedoroff to go next, but I’ll leave it to the discretion of the committee.
Senator Munson: Thank you very much. Dr. Fedoroff, you are welcome to add few words before we ask questions.
Dr. J. Paul Fedoroff, Director, Sexual Behaviours Clinic, Royal Ottawa Mental Health Centre: Thank you, Senator Munson and honourable senators of the committee, for the chance to make my presentation. You may be suspicious, but the fact is that Nancy Lockwood, Dr. Booth and I have not pre-conferred about what we would say today. However, I think you will find that what I say is very similar to what you have already heard.
I’ll start off with mentioning stigma. Stigma involves negative labelling and discrimination. I’m the director of the sexual behaviours clinic at The Royal Ottawa, so I look after sex offenders who are a very stigmatized group. In that group, there are a large number of people who have intellectual disabilities.
In fact, I run a separate clinic only for doubly stigmatized people with intellectual disabilities who are also sex offenders. Of that group, about 90 per cent have other major mental illnesses or other psychiatric disorders, which is a third cause of stigmatization. We are talking about a group which, by its nature, is one that people tend to be very concerned about and suffers all the problems that come with stigmatization. I’m very happy that the committee is paying special attention to them.
I want to start by telling you about a patient I saw many years ago who was an example of what I just told you. He was brought to me, as they always seem to be, on a rainy Friday afternoon in my clinic for intellectually disabled sex offenders. He was a federal offender who had just been released with frankly no treatment plan. He was brought to me by two police officers who were, I would say, quite frightened. He was a very large man. He had a terrible history of repeated sexual offences. He was known to be aggressive. They said he was a fighter. He was released to the community having done his full term with absolutely no plans for what would happen with him. He was homeless when he arrived.
I met with him. He had been given a risk assessment which stated that he had 100 per cent chance of recidivating within the next seven years. He came to see me. One of the first things I noticed was that the initials KKK had been tattooed on his knuckles. They had been tattooed while he was in prison by other inmates who did this to him, without his knowledge of what those initials would mean, which caused him to be in repeated fights. He didn’t understand that was the reason he was getting into them.
We took him into treatment. We put him on an anti-androgen with his consent. We put together some supports so that he could live in the community. I’ll tell you a bit about him at the end of my presentation.
The next thing I want to tell you about is that of course people are concerned when they hear about sex offenders who have committed crimes. Many sex offenders are anti-social. They commit crimes because they have no regard for the laws of the country.
The people I want to talk to you about today are people with intellectual disability whom I have described as asocial in the sense that they also break the rules and get into trouble with the law, not because they have a disregard for the law but because they don’t understand the law or they don’t understand our social rules. They break laws, but for a very different reason than ordinary criminals.
As an example, I’ll refer to another patient who was brought to me in my clinic. He had been in jail and had just been moved to a new facility. Shortly after arriving there, the people in the facility said that the parents of one of the women who was living in the facility wanted to have him charged for exhibitionism because he had been walking around the facility with no clothes on.
The question was whether or not he would be charged. I’m happy to say that we were able to cure him. The way that we cured him was that we got him a housecoat. This is a man who had been in all-male facilities all his life in which not everyone wore clothes. He had not really understood that it was a good idea to put on a housecoat. He had no clothes of any sort. Once he had that housecoat, he stopped his exhibitionism and we were able to avoid him going through the system.
If he had been charged, I think he could easily have gone back to jail where he would have been victimized again and likely repeated the same sort of problems. That’s an example of the difference between anti-social and asocial.
The people that have intellectual disability who come in conflict with the law truly have special needs. You hear about special needs people, but there are people who have special needs in a whole range of areas that we often don’t recognize.
I will make a point to say that people with severe intellectual disability often are dealt with better than the people that you have heard about who have fetal alcohol syndrome who have moderate or mild intellectual disability. Those are the ones that aren’t recognized and often get into more trouble. When they get into programs offered in the federal corrections system, which are highly based on doing homework or reading assignments, and they can’t read, they get labelled as oppositional or unmotivated instead of recognizing it. I have seen men who will not admit to anyone that they can’t read or they can’t keep up rather than suffer the consequences of appearing to be unmotivated.
Many of them have been abused themselves as children or mistreated in institutions or other facilities. They react to the events that happen in prisons in different ways than people who haven’t been abused. They often have unique learning difficulties. Many have difficulty in verbalizing or expressing their feelings, so they are prone to express their feelings in physical ways, which can be misinterpreted as aggression. They really are a group that need to be treated in a different way.
You have already heard, I think several times, of the need for making the diagnosis or at least recognizing these people. They look ordinary. They aren’t dysmorphic or don’t somehow look like they have mental retardation but may have intellectual disabilities. It’s important to recognize that they have all these problems, even though they can’t tell you about them right away.
My recommendations start with reconsidering the mandatory minimum sentencing you have already heard about. Many times people like the individuals I have told you about who have intellectual disability, end up in the courts and end up getting sentences because of mandatory sentencing rules which really could be dealt with better. Mandatory sentencing takes away the ability of our judges to make just decisions in sentences that they would make if they had the ability to do so.
As I said, there is an importance to identify and recognize fetal alcohol syndrome and other minimal intellectual disabilities. It is important to recognize that people with intellectual disability often have other psychiatric problems such as depression. Sometimes they have problems with alcohol or substance abuse. Sometimes they have other problems. Sometimes they may have a physical problem that is causing them to be in pain, which they express in terms of aggression or withdrawing from a situation because they can’t articulate what the problem is.
We need to pay attention to their rights, even though they have infringed on the rights of others. It’s very important. I have given you a quotation from Tony Ward. He talks about the importance of people with power who are making decisions about other people who have less power being aware of the need to respect their rights and their dignity if they want to be able to motivate them to make the changes that are necessary.
We need to have better education, not just of the offenders who have difficulty with ordinary learning but also of the people who are charged with taking care of them. As I have mentioned, people can misinterpret the actions of people with intellectual disability if they are not aware of the things you heard about when you heard about fetal alcohol syndrome.
Most importantly, we need to try to prevent people who have intellectual disabilities from getting into trouble with the law in the first place, from having them mistreated when they are in the correctional system, and from having difficulties when they return back to the community.
We often underestimate how difficult it is for people who have been in custody to return to the community. They get used to the institutionalization of prisons, particularly people with intellectual disability. When they come out and have to start to make decisions for themselves, they often have a great deal of difficulty doing that.
Discharge planning is something which is almost non-existent in the current system. People do their time and they get out, but they often have no plans for where they are to live. They have no community supports. I’ll just mention Circles of Support and Accountability, or COSA, which was originally designed for an individual with intellectual disability. It is able to help people who have these difficulties to reintegrate into the community.
As a last word I’ll come back to the patient that I told you about at the beginning of my presentation. It has now been well over 10 years since he was released. He has not recidivated. The first thing he did was to get a job and hire another tattoo person to change the initials on his knuckles to say the name of his cat.
One month I travelled to this clinic in Southern Ontario. I had a change in my schedule and I couldn’t get there on time. He went out on his own, got his injection, and gave himself an injection because he felt that medication helped him. We were able to test to make sure that in fact he had taken the injection. He is now a productive member of the community. He is an example of how, with the right support, even people who are stigmatized and labelled as incorrigible criminals can be helped.
With that I’ll stop and take any questions.
Senator Munson: We are always curious. This is very important testimony for us.
I haven’t done this very often as the chair, but I work closely with the autism community. I just want to get this question in before other senators do on other issues. I have worked in various parts of the country and in various communities with persons on the spectrum.
There was this one gentleman who languished for years in Penetanguishene jail for inappropriate touching of a person who was caring for him. He didn’t know what he had done. He had no criminal record. He did it and was charged. It was a major story a few years ago.
This young man is now an accomplished painter, with proper guidance from others who are helping him along. In fact I have one of his paintings. It reminds me of the goodness in what I do each and every day.
You talked about the mandatory minimum sentence. In this day and age and in terms of the court system, could this happen again? Could a person end up in prison on one crime and not end up in an environment of helping him, as you have talked about, in a clinic like yours?
Dr. Fedoroff: It certainly could happen again. In fact, it will happen again. If a person is charged with a sexual offence against a child, they go to jail. There’s no question about that. There’s no possibility for leniency in the current system.
Senator Munson: I’m not talking about a child. I’m talking about two adults. If there wasn’t an intervention at that time with that charge, it seems that person is still in desperate straits.
Dr. Fedoroff: Once they’re charged, if they’re found guilty, then there is a mandatory sentence.
Senator Munson: Thank you very much for that.
Senator Bernard: Thank you to both of you for your testimony. You’ve given us lots of information. I want, first, to pick up on the question around the person on the autism spectrum disorder. In your talk about persons with intellectual disabilities, do you break that down in terms of who is included under that umbrella term? Would ASD individuals like the gentleman Senator Munson spoke about being included there?
Dr. Fedoroff: Intellectual disability covers people with the old term of mental retardation. Autism spectrum disorder is a separate category of pervasive developmental delay. Both can involve difficulties with intellectual abilities, but there are people with autism who have above-average IQs. It’s a different condition.
Certainly I see a great number of people with ASD, or autism spectrum disorder, as well. We have a name for the problems that you mentioned. We call it counterfeit deviance in which people look like they’re committing a sex crime but are actually doing it for a completely different motivation, although they can end up being charged with the same crime.
Senator Bernard: Where would individuals on the autism spectrum disorder fall? I appreciate the clarity around who is included under intellectual disabilities, but it’s well documented that there are many adults with autism who are languishing in the criminal justice system, largely because they were either misdiagnosed or not diagnosed as children or aged out of services by six or eight years of age and then had no services. The systems continually fail them. Where are they in terms of your thoughts around treatment and services?
Dr. Booth: I believe you guys did visit the St. Lawrence Valley Correctional and Treatment Centre. In the sexual behaviours unit that I had run previously, fully a third of our individuals within a five-year period had a diagnosis of either intellectual disability or autism spectrum disorder. They were very highly represented. It demonstrates where they end up. They end up in jail.
Senator Bernard: I appreciate the fact that you both talked about communities of people in the prison system who are from marginalized communities. However, I notice a significant gap: There is no reference to Black Canadians. Research has shown that racism-related stress can and often does lead to mental health problems. We also know through research that Black youth and adults, if they have behavioural problems or present with some sort of behavioural “issues,” they are more likely to have those criminalized as opposed to referred for mental health assessments.
Black Canadians in the country deal with complex trauma through their experience of everyday racism. We also know there’s an overrepresentation of Black men and women in Canada’s prison system. Black boy children are labelled as aggressive as early as kindergarten or pre-kindergarten and often are not diagnosed or misdiagnosed but labelled as bad. Those labels follow them.
There has also been research which has identified that many Black inmates cannot read. They have progressed through the education system without anyone noticing. Rather than let anyone know, often there is behaviour that would disguise the learning issues.
I’d like to hear your thoughts on what’s happening. What is the state of affairs for Black Canadian men and women in terms of prison services and access to mental health services, both within the system and outside of it?
Dr. Booth: Certainly your observations and data are correct. There is a definite overrepresentation of Black Canadians within the correctional system. I would agree with the mislabelling issue as well.
We see it within our facilities and within our treatment programs coming from several different populations. You have Canadian-born individuals of Black heritage who have faced racial discrimination throughout their lives. Obviously that would affect self-esteem issues and later contribute to the development of numerous psychiatric disabilities and development of substance use disorders.
We also see a difficulty with first generation and new Canadians who come to Canada. Ottawa is a very good example with a very large Somali population. Many of those individuals came at a very young age. By all means they are fully Canadian but face that racial stigmatization. Obviously that can bring along with it the increased risk for behavioural issues which are driven by mental health and contribute to the substance.
I agree fully that is an issue. There are efforts to try to become more aware of that, although I don’t think it has been a major priority within the correctional system as far as I’m aware.
In terms of seeking out services, certainly the doors are open within our hospitals for all comers. As you say, there may be risks, regardless of origin, of individuals presenting with behavioural issues or something that could be described as criminal being turned away as a bad apple, basically. Obviously that’s a major concern from our perspective.
Senator Bernard: Are there culturally relevant mental health services in your areas that you’re aware of?
Dr. Booth: There is a growing effort, I would say, starting right in medical school through residency training and psychiatry to become more culturally aware. Our sort of bible of diagnoses, the DSM-5, includes a section on cultural formulation or understanding individuals from their cultural perspective. With that is coming an increasing interest in growth within cultural medicine. Within the Canadian Psychiatric Association there’s a special interest group. I’m aware of one also within the Ottawa area where cultural medicine is the main goal. Disseminating that and making that the standard is something down the line, but it’s on the radar.
Senator Bernard: Just picking up on the DSM, you say that the DSM now has an area to look at cultural impacts.
Dr. Booth: Yes, there’s a special chapter, I guess it would be called, that discusses what we call cultural formulation. Formulation is basically understanding what the biological, psychological and social contributions of a person with mental health issues contribute to it. The cultural formulation then brings in, in a cultural manner, understanding how their religion, race and other cultural issues may come into play, why it is they are presenting now, and then educates you in terms of what sort of treatments and interventions might be appropriate.
Senator Bernard: Are issues of racism included in that as well?
Dr. Booth: That would certainly be included, yes.
Senator Bernard: Thank you.
Senator Pate: I have a supplementary to Senator Bernard’s question. It’s my understanding, in some of the analysis of the excellent work being done at the St. Lawrence centre in Brockville that we visited, that one of the challenges has been a lack of sensitivity to both gender and race issues.
Picking up on Senator Bernard’s question, it’s my understanding that you’re examining the need for further resources and a way to adapt services so that you can provide better services to women, particularly indigenous women and other racialized women, as well as to racialized men.
Is that still ongoing? What is the status of that at this stage?
Dr. Booth: I would say that across the country it’s on the radar. I think it’s still an unmet area of need, though. Unfortunately, the turnover in terms of being culturally appropriate and sensitive is a barrier within all of the professions. At least, in psychiatry, I can say it is certainly something that’s on the radar and trying to be effected at all levels.
Senator Hartling: Thank you very much for your presentation. I was happy that you talked about an actual situation from the beginning and how it turned out. It kind of makes it more personal to know a story about someone and what they’ve gone through.
As you’ve stated and we’ve noticed too when we visited prisons, there are a lot of folks in prison with mental health issues. They are overrepresented there. The manifestation of mental health issues and related behaviours is often viewed through the lens of criminality and therefore treated in terms of risks, not needs. We’re wondering if that can lead to increased security classification of prisoners with mental health issues.
Are there current risk assessment tools sensitive to mental health issues that prisoners may be facing? If not, should those tools be used at all to evaluate those with mental health issues?
Dr. Fedoroff: We have a range of risk assessment instruments that have been standardized on people with mental illness problems as well as others. I don’t think that is the problem. The problem is that when you get into institutions like our prisons, the guards have certain duties to do. What happens is that when people are causing trouble, often because they have a mental illness, they get put into segregation or put in the back ward. If they don’t make any more noise, they’re left there. They often are neglected, stay there and get worse, rather than get the treatment they need.
There’s a problem where people with mental illness are not able to advocate for themselves. They’re already stigmatized. They’re seen as criminals and not trustworthy and dangerous. They don’t get treated with the dignity and respect that they need in order to get help.
Senator Hartling: How can that change, then? What needs to happen? How can we flip that around so that their needs will be looked at and then treated?
Dr. Fedoroff: As I’ve said, I think that prisons are uniquely poor places to treat people with mental illness. Unfortunately, as Dr. Booth said, many of our mentally ill people who used to be in institutions are now ending up in a new institution, which is a prison that is really not well designed to help them.
If I could do anything, it would be to keep people from getting into jails in the first place. It would be great if they can go to other treatment programs so that they can either be prevented from committing crimes or get treatment that actually is more effective in changing their criminal behaviour into pro-social behaviour.
The second thing is to educate the guards and the people managing this very difficult population. I understand the difficulties the guards have. If they had better education about why it is that a person may act in the strange ways that they seem to be and to understand that there is treatment that’s effective, that would improve things a great deal.
Senator Hartling: I’m doing a study on mental health in New Brunswick, where I come from. One of the things that is coming out is the lack of accessibility to services, access to services at no cost.
Do you know anything about that? Before people get to prison there aren’t those institutions anymore. Maybe there shouldn’t be, but are there places where people can go for help? Are they finding it hard to access services?
Dr. Booth: I would highlight that part of my discussion. There is a massive shortage, actually, in terms of mental health professionals within psychiatry and forensic psychiatry. Unfortunately, we can’t produce a large number tomorrow. It takes many, many years to become a physician and then a psychiatrist and then a forensic psychiatrist.
In terms of other services it is often difficult to get ancillary services that are funded. If you have a good insurance plan and can get coverage for your child and then young adult to get appropriate psychological services, which is almost unheard of, that may change the trajectory. Even getting in for a psychiatric consultation within many cities, the wait list can be one to two years. There is a large paucity of services.
Dr. Fedoroff: At the time that people with mental illness or intellectual disabilities are arrested, they are also particularly vulnerable. People with intellectual disability often will say yes to questions. They want to please. They will make false confessions that get them into a lot of trouble. Often they’re not able to afford lawyers, so they end up getting much more severe sentences than they would if they didn’t have those problems in the first place.
Senator Pate: I have a supplementary question for Senator Hartling. I’m learning from Senator Bernard In the interests of time, I will ask both my questions, including the supplemental.
I’ll start with my other question. Yesterday, the annual report of the correctional investigator was released. One of the observations was that the use of physical restraints, clinical seclusion, suicide watch and other euphemisms for segregation, as well as maximum security in what are segregated units, is a particularly egregious problem for women and even more so for indigenous women.
At the stage he was doing the report, approximately 50 per cent of the women who were in isolation or segregation in maximum security were indigenous women. Historically there has been an overrepresentation of African Canadian women as well. He made some recommendations about an end to that.
In the Canadian Academy of Psychiatry and the Law June 2017 newsletter, there was indication of support for the recommendations that the Office of the Correctional Investigator has been making with respect to the need to find alternatives to segregation, and I also understand alternatives to imprisonment.
As well, Dr. Law, a psychologist hired by Correctional Service Canada in 2004 to look at the classification and assessment scheme particularly for women, came back with a recommendation that all women be started at minimum security, which seems consistent with Dr. Zinger’s recommendation to essentially eliminate maximum security for women and to instead provide more supportive housing.
I’m curious as to what your views are on the recommendations he made yesterday. How many section 29 agreements, besides the pilot that Corrections started with the Brockville unit for two beds, to your knowledge, have been contracted across the country, because you’re representing the pan-Canadian association? That’s my question.
My supplementary to your answer to Senator Hartling’s question is that you mentioned whether training of staff might be beneficial. It sounds like you thought training of staff might be beneficial. Have you seen evidence of that? Do you know of any research that would establish that to be true?
Historically, psychiatrists in Corrections have actually repeatedly, themselves, indicated that they are supposed to have complete jurisdiction over the mental health of prisoners. Even when the Regional Psychiatric Centre in Saskatoon, which is a duly designated penitentiary and psychiatric hospital, routinely gives direction that someone not be placed in seclusion, not be restrained or not have OC pepper spray used with them, the staff will overrule that on the basis of security concerns.
I don’t know of any evidence that the training has actually resulted in significant change. If you have some available, it would be very useful to have because all of the evidence seems to be showing just the opposite. There’s an impulse to think that if we train staff there will be a different behaviour. I don’t know of any evidence in a prison setting where that has been true.
Dr. Booth: I’ll start with the second question first. I actually don’t know of evidence that would support that, although I can say observationally within the secure treatment unit that I’m most familiar with, which is a provincial institute, we have very large numbers of well-trained correctional staff that are fantastic with individuals with mental health issues.
Part of that certainly comes from training, in addition to recruiting appropriate individuals with an innate interest and ability to deal with individuals who are unwell.
Senator Pate: Just to be clear, that’s the facility you work in which is governed by the health services, though. Is that correct?
Dr. Booth: The secure treatment unit is under the purview of the Ministry of Community Safety and Correctional Services in Ontario. They oversee it. They have a different model where there’s a higher staffing ratio, where most of the institution is organized around mental health.
It’s a bit of a hybrid model. Everyone still answers to corrections, ultimately.
Senator Pate: My understanding was all of the therapeutic interventions were governed by the health system, however. Is that not correct?
Dr. Booth: Yes, therapeutic interventions and security issues are through Correctional Services, although there’s a lot of collaboration to deal with difficulties as they arise.
I think there is hope. If you have appropriate individuals then things can go very well. You do raise an interesting question: Once an individual is identified as having significant mental health issues, how appropriate is it to have Correctional Services managing them rather than a mental health service?
If we transfer those individuals or try to transfer them to a psychiatric facility, we find that many of them will be turned away at the door or they need to be monitored from a security perspective. Again, I’m not sure what the right answer is.
Dr. Fedoroff: You make a very good point that there’s a difference between education of individuals and the culture of an institution. My opinion is that our current federal system and provincial systems really see themselves as custodial rather than rehabilitative as their primary job.
An example of this is the lack of discharge planning so that people are released with very little supports or planning for when they get out. Guards have people they have to contain during their sentence. They’re not thinking about the fact that this person will be returning to the community. It changes their approach to what needs to be done and how to treat them. They get treated with less dignity and respect than they need.
It would be good for the system to start thinking, when someone comes in, that they’re going to be getting out. Every day it should be planning for the day that they are returned to the community. As we learned when we saw the deinstitutionalization of intellectually disabled people in the past, if there isn’t the community support things do not go well. What we need to do is to start working on building up the outpatient programs, the places where people can live, and the supports that are in the community to make sure that they don’t have to go back into the prisons a second time.
Senator Pate: Then there is section 29. Are you aware of any other agreements across the country?
Dr. Booth: I’m not aware. I know there have been discussions and there have been implementation issues. Again, it’s difficult to find an appropriate model that people will agree to at this point. I’m not aware of any other of those arrangements.
You also queried the other issue around seclusion. Maybe you could just remind me of the specifics of the question so I can focus myself.
Senator Pate: Yes. I was focusing on the recommendations specifically from the Correctional Investigator yesterday, Dr. Zinger, who you probably know is both a psychologist and a lawyer. He recommended that the maximum security units for women be eliminated and that segregation be severely restricted, if not eliminated, for those with mental health issues.
In particular, in prisons for women it tends to be people with mental health issues and indigenous women who are vastly overrepresented in those units. He was recommending, instead, that resources be put into some of the supported living environments because some of the women also have intellectual disabilities as well as mental health issues. Many of them, as Senator Bernard and others have already talked about, have not actually been diagnosed and there is the whole idea of looking at different risk assessment processes as well.
I don’t know if you’re aware of the work that Dr. Law did, where she recommended that all women be started at minimum security. How would you see those two converging?
Dr. Booth: I would agree with the principles. The main principles that I would see, rather than assuming somebody is high risk, violent and dangerous, is that the first step is actually to do an evaluation of that. In fact, there are mental health patients and non-mental health patients with criminal histories who pose a significant risk to staff, other inmates or other patients. The error is that often that’s the assumption rather than doing an appropriate assessment first of all.
Of course, you need appropriately trained individuals to do assessments. While I applaud the efforts of Corrections to use maybe correctional staff, you do need a certain level of expertise to do that type of assessment, to come up with the right diagnosis, to understand the person and to make appropriate security and treatment recommendations. The second principle that comes out of those is certainly one of seclusion, restraint and very invasive interventions around liberty and on respect for the person’s body.
I agree fully with what I take from that. Those are interventions of last resort. They need to be avoided whenever possible. Appropriate resources need to be put into place so that there are reasonable alternatives. We know that often many of the alternatives work well and work better. Particularly, I’m thinking about individuals who have trauma issues and you have a big gang of correctional or mental health people coming in and laying hands on it. It’s not acceptable.
Again, the idea is that those are interventions of last resort. They have to be educationally informed with an understanding of who that person is and what are their trauma issues. Are there other alternatives that would work better?
As far as eliminating, from my experience I wouldn’t go that far because. Unfortunately there are individuals who are dangerous when they are unwell. Other interventions have been tried and they are not successful. We need to keep that on the radar but very far down the list of interventions.
Senator Pate: You mentioned assessments and classification. My understanding is there is a fair bit of critique right now and research being done around the fact that the classification schemes are really normed toward white men, as opposed to women and racialized groups, in particular African Canadian, South Asian and indigenous individuals.
Are you aware of any current research being done to ensure classification schemes adapt? In much of the research you’re talking about the need for seclusion really coming from some of the research with men. I don’t think other than Dr. Law’s research there has been research just on women.
Dr. Booth: I would clarify. When I’m talking about the need for seclusion or other interventions, Corrections has its own classification system. I am not aware that it’s mentally health informed and done by highly qualified individuals such as psychologists and psychiatrists. For those complex cases you really need a formulation to understand who is this person and what are their issues to then go on and ask, “What is the risk and how do we manage that?” I would accept that these are probably formulaic, not necessarily culturally normed or gender normed.
Dr. Fedoroff: Since you ask, the Sexual Behaviours Clinic is actually about to start two new research projects, one looking at female sex offenders and the other in which we will be advertising on the Internet to try to encourage people with problematic sexual interest to come for treatment before they commit crimes.
I hope we will be making some progress in those areas as well.
Senator Pate: That raises a whole bunch of other questions, but I know we’re out of time.
Senator Munson: We are just about out of time. I will close with one question.
We discussed it in generalities already. The United Nations Committee on the Rights of Persons with Disabilities recommended that Canada introduce additional supports to ensure the justice sector is fully accessible, free of charge for all persons with disabilities, and it listed Braille, sign language and alternative modes of communication.
In the context of intellectual disabilities and ASD, which similar services should be guaranteed to improve accessibility at the Parole Board of Canada and in the corrections system more generally? We would like to make a recommendation, so we would like to know what supports could be put into place specifically.
Dr. Fedoroff: I would agree with the recommendations of the United Nations. Those interventions would be helpful.
Another very important thing is that people with intellectual disability very often need a support worker with them to help them to deal with the many stresses of going through that sort of system. I have seen it happen when people who have intellectual disability are permitted to have someone else with them, either when they are testifying or when they are answering questions. That can be very helpful for them.
Also, hearings need to be broken up so that they have time to collect their thoughts. Very often they need assistance with communication, both in terms of their understanding of the question and in terms of their answers being understood by the courts and other authorities.
Senator Munson: We want to thank you both. We should have you back, and we may do that. This has been a wonderful insightful conversation and important to our report, and we thank you both.
Senator Bernard: Bring it back, please. I want to say thank you for your leadership on this committee, for your commitment to human rights issues and, in particular, for the rights of children. Thank you.
Hon. Senators: Hear, hear!
Senator Munson: I appreciate that, thank you. With that, I’ll smile.
(The committee adjourned.)