Two examples come to mind. The first concerns an article I read a few years ago in the pages of the radical left wing magazine from England called “The Economist”. An ordinary high school teacher had been convicted of sexually ‘touching’ his students. During a pre–jail physical examination, the doctor ordered a CAT scan and a tumour was detected in the offender’s brain. Being England, where a National medical insurance system functions, the tumour was removed. Subsequently, the teacher was described as a model prisoner and was eventually released. A few years later he resumed the indecent assault of children. His lawyer ordered a further brain scan and the same type of tumour had returned. Does he have the required mental element, the required mens rea, to be guilty of sexual assault?
The second example is a client who had experienced a motorcycle accident and suffered a brain injury. Prior to the accident he had no criminal history and was employed, paid his taxes, and his family described him as ‘normal’. As a client he was a regular offender with multiple arrests for assault, mischief, theft, and creating disturbances. He was barred from all service delivery agencies funded by the BC government to manage and support those affected by mental illness. As his lawyer, I struggled to get him “good deals” in court as he would always plead guilty and the evidence was consistently overwhelming. No one, not the Crown, the probation officers nor I said anything about his apparent cognitive loss. Each presiding judge at this client’s court hearings had to intuitively figure out he was not functioning well and conclude that this was probably connected to his injured brain. With consistent regularity the client was given probation orders which all parties knew were a useless strategy to prevent his future offending. Sadly, the client committed suicide the morning before yet another guilty plea. On reflection, I never considered the brain damage as a defence and therefore a lack of mens rea. I did run a trial and was successful with an automaton defence. The elderly judge was kind, had been at Provincial Court for many years. I suspect he knew much more brain science than he let on. I have always believed, in some ways, that the judge “got it”.
Fetal alcohol assessments in British Columbia (BC) are not covered by medical plan insurance billing codes. The consequences of the petty arguments in the government/medical committee on fee structure and billing codes have STALLED the diagnosis of fetal alcohol for YEARS. The BC psychiatrists want the ENTIRE billing code to use for themselves ALONE. Other experts say the diagnosis is an multi-disciplinary effort requiring the involvement of disciplines like neurology, family practice medicine, speech and language therapy, social work, psychiatry and other specialist skills including input from community representatives (caregivers). Legal aid will not pay for fetal alcohol assessment and forensic services like those provided at Riverview are “not equipped to provide this service”. Thus clients are undiagnosed and go to court without any evidence of their brain injury unless the family can pay upwards of six thousand dollars for a fetal alcohol assessment. Fetal alcohol is not in the DSM 5, the bible of acceptable mental illness. If you live in Alberta, a FASD diagnosis/assessment is free and a doctor’s referral is not required.
The peer reviewed science (Conry, Fast, et al 1996) proposes 24% of young offenders in BC custody have one of the four fetal alcohol diagnoses (FAS, pFAS, ARND and ARBD). The Canadian authors will tell you informally that there were methodological “issues” with the study and that the true number is more like 40%. The folks who operate our federal prisons have done their own studies and conclude that between 50 and 80 percent of the male penitentiary population has fetal alcohol. These prison studies are not peer reviewed.
In the Criminal Code of Canada and in R v Harper (2009), confirms that the decision to say weather or not a person before a sentencing Judge has fetal alcohol is the sole call of the sentencing Judge. The Judge can accept or reject expert opinion. He can decide from the materials on the record.
Science can help. No one expects our judiciary to be neurologists AND we must expect representatives of the Crown, the defence, and probation officers to present all relevant information to the Court. The educational services available to judges must include courses on fetal alcohol. This educational process will be difficult. The Law Society of BC and its education arm (Continuing Legal Education (CLE) refuses to educate on FASD and rejects the idea that BC lawyers need a course on fetal alcohol and the law. Paradoxically, in 2008 the Law Society of BC published a new criminal law interview checklist. One of the additions is a requirement to consider “fetal alcohol issues”.
The main reason lawyers do not mention FASD in defence is understandable. It is probably because the Crown will say (and most judges will agree), since he/she cannot be ‘fixed’, extended jail time means the community is safer. This is a well-meaning conspiracy of silence.
All of us can learn some brain science. The judges and lawyers who do motor vehicle accident and disability cases have learned the necessary brain science to dispose of brain injury cases. The criminal bar and the judges who sit on criminal cases can learn some brain science if defence counsel makes the necessary submissions. I say this because all Canadians (not just the rich) are entitled by law to have the information they need to make full answer and defence to criminal charges.
In the previously mentioned case examples, brain injury was beyond dispute either through physical medical evidence from a CAT scan or the qualified assessment of a mental health specialist. Not so with FASD. The brain cannot be seen; the person concerned is often socially articulate creating a false illusion of their ability for reasoning. Coupled with the difficulties of recall and dysmaturity, brain difference makes all the difference in the culpability of the individual to answer charges. Clearly some eager young defence counsel needs to start a Charter challenge so their client can access a diagnostic assessment in BC so the presiding judge can have all the necessary facts of the person before the court. This is not to deny accountability for offences but rather to begin a process of redefining appropriate sentencing for those living with fetal alcohol.