Being a judge is difficult enough without having to be a neurologist. Today judges cannot ignore science, especially the new research materials being published about brains.  Brain research directly impacts the second required element of every criminal offense.  In Canada, and many other developed nations, criminal guilt requires a guilty body (actus rea) and the second required element of a guilty mind - mens rea. If the Crown cannot prove both beyond a reasonable doubt, the defendant is not guilty.

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.

Teachers face different brains every moment of their lives.  Teachers need to know about fetal alcohol because it is in every classroom. The names may change depending on fashion. It is a brain based physical disability.

I suggest teachers use the mnemonic ALARM to help identify those with brain based difficulties.

A               stands for adaptive behaviours

L                stands for learning and language

A               stands for attention

R               stands for reasoning

M              stands for memory

A few questions, observations, reports in these various domains will give you a good idea of the extant of the brain dysfunction. We teach this mnemonic to police officers. And for the same reasons it works for teachers. As Diane Malbin says: try differently because trying harder does not work and will wear you out. You will stress yourself to death unless you focus on brain function more than bad behaviour.

There is good news that we set out in our fabulous new animated film (HYPERLINK) for teachers.  I have learned from GREAT TEACHERS I HAVE HAD that there are strategies that have been successful in creating success in classrooms.

Dr. Sterling Clarren M.D. speaks about creating an EXTERNAL BRAIN for those with fetal alcohol. The concept is simple: a committee of good hearted folks who can stand in for the missing brain cells. In legal circles we use the EXTERNAL BRAIN to remind of probation appointments, to repeat endlessly the terms of the probation order, to remind the person of NO GO and NO CONTACT orders. It works.

In the classroom the external brain can be used with similar success to remind the students who have a brain based physical disability of what is appropriate behaviour. Some schools call it the buddy system, peer counselling. I prefer, YOUR FRIEND. Classroom discipline, class control, call it what you will is always an issue for the same reasons grownups need police.

And everyone knows everyone needs friends. Friends remind us of the social rules. Friends can grab us by the arm and say:  “NO…do not….” There is a kindness in friendship that, in my opinion, people with fetal alcohol thirst for and want. Loving kindness comes first from friends, not family.

Thus find ways to create the classroom   version of designated drivers…create designated friends….an external brain.

Some people need help following the rules. Often people with fetal alcohol would rather act bad, be disruptive than admit non comprehension.  Teachers need to notice the difference between non comprehension and noncompliance. It is easier to be the class clown than the class dummy.

I do not mean to replace the teacher’s authority with a student voice.  NO. Most people with fetal alcohol do not have friends; do not have the social network that propels us to follow rules because we all want to belong (to something). We (the complete brained) have learned that complying with social rules means social success.

I know a man in Chicago who had to pay kids in his neighbourhood to come to his adopted son’s birthday parties. Writing those words hurts. 20 years later the man is stilling struggling to keep his son out of jail and his son’s lack of friends is the son’s biggest impediment to success. Another client, this one with money (lots of money), pays a full time social worker to be a friend to her son. It works. No more offenses! No more jail.

If teachers can create structured friendships, in the class room, sitting beside or near students who do not get various messages, teachers are creating success. Many kids with fetal alcohol are bright and capable. Some have specific disabilities that impact classroom behaviour…light and noise sensitivities, slower processing pace, easily frustrated and the like. Teachers may not know the technical names for each disability. They do know that these kids are alone in their pain…and strike out to disrupt the classroom.

I recommend all teachers buy two inexpensive books by Diane Malbin of www.fascets.org. The first is the best. It is 80 pages and called: Trying Differently Rather than Harder.  The second is a coil ring binder type of book of 220 pages called Fetal Alcohol/Neurobehavioural Conditions: Understanding and application of a brain based approach.  A collection of information for parents and professionals.

Every time I speak in public I have at hand these two books.  My coil ring book is festooned with multi – coloured stickees marking the hot pages.

Some other books I have learned and been told by teachers that are helpful are:

Freedom to Learn by Carl Rogers… hit me like a freight train in university!

Spark by John Ratey M. D… this is a special book, not because the author teaches at Harvard, no. It is terrific because a Canadian teacher intuitively already knew this EXERCISE stuff and uses it in her classroom in city park collegiate in Saskatoon. And because CBC made an hour long film about her showing how she created success with all the “special kids” that were “left behind”. Her name is Allison Cameron and someone should give her the Nobel Prize. One of the tools she used was exercise! Get the Film… it is in the CBC archives, or on the internet.

The BEST resource is free, it is on the internet. Deb Evensen wrote the book called Making a Difference for the Yukon govt, specifically for teachers struggling with kids with fetal alcohol. The Saskatchewan government, those stubble jumpers, have put on line complete K to 12 curricula specifically for students with fetal alcohol.

Resources are only as good as the user. In my experience when I speak two groups immediately get fetal alcohol: cops and teachers. And they get it because they work hard at building community. I believe teachers are the source for the truism:  EVERYONE DOES BETTER WHEN EVERYONE DOES BETTER.

Of course there are bad teachers. As there are bad cops, bad doctors, bad electricians, and bad politicians like Christy Clark. Crime prevention begins in the classroom. Safe communities are created first in the classroom and especially when difficult students have friends!