As demand explodes, Manitoba's new FASD court expands to meet need

Manitoba's court designed to help offenders with fetal alcohol spectrum disorder (FASD) is tripling the number of hearings for adults to deal with skyrocketing demand for the unique hearings they began offering less than a year ago.

"The demand is very, very high," said Judge Mary Kate Harvie, who's in the FASD court and is chair of the committee that spearheaded its creation.

The court handles sentencing for offenders with FASD — a disorder affecting the brain and body caused by the fetus's exposure to alcohol — on a range of cases from breaches to more serious matters.

"I think, generally speaking, the cases we're seeing are some of the most challenging that are within our system," said Harvie.

The court, the first of its kind in Canada when it launched in March, helps offenders with FASD navigate the court system and connects them with specialized help as part of their sentences.

By late October, a Manitoba Justice spokesperson said adults faced a two-month wait time before getting a date — a delay Harvie and other legal experts attributed to high demand and limited sittings.

"At first, it was a little slow, and then, whoosh, it picked up speed," the judge said. "I think it's confirmed the suspicions that we had that we needed something specific to address this population, that the numbers are significant and that we need to do better for this population, right across the board."

FASD's effects vary from mild to severe. While a minority of people have physical signs — like a smooth ridge between the nose and upper lip — some also have cognitive effects, which can include poor memory or learning disabilities.

When the court launched, it heard youth proceedings every Thursday morning at the Manitoba Youth Centre, with alternating adult and youth proceedings at the Manitoba Law Courts on Thursday afternoons.

The court has now jumped from two half-days per month for adults to seven, with proceedings for a full day on three of the four Thursday sittings a month, plus a half-day. It has also added flexibility for out-of-custody youth proceedings to take place at the Manitoba Youth Centre.

'Trying not to set them up for failure again'

It's hard to get an exact number of how many Canadians are affected by FASD, but Health Canada estimates it's about one per cent, based on research from the 1990s. More recent research suggests it could be higher — more like four per cent, according to the Canada Fetal Alcohol Spectrum Disorder Research Network.

However, it's much more prevalent among people who are incarcerated.

Research on FASD prevalence in Manitoba found the rate in Stony Mountain Institution is 10 times higher than the general population. A 2011 report from Correctional Service Canada found 10 per cent of participants had FAS, and a further 15 per cent met some of the diagnostic criteria but the diagnosis couldn't be confirmed.

In FASD court, offenders with an FASD diagnosis who want to enter a guilty plea are brought before judges who consider how their diagnosis contributed — or didn't contribute — to their crimes. In some cases, it's clear, such as when an offender on probation doesn't make their regularly scheduled calls to their probation officers because they can't tell time.

In other instances, it's more nuanced, and Harvie said judges must do a delicate balancing act between public safety and the moral culpability of offenders who face mental or cognitive challenges.

Lori Van Dongen, a defence lawyer who's worked in FASD court, said she's helped clients whose conditions associated with FASD mean they can't tell time, or leave court proceedings without understanding the sentence they've just been handed.

"So many times I would go back and speak to a client after and say, 'OK, do you understand what happened?' And their answer is no," she said. "They don't know if they were released. They don't know what sentence they got."

A key to the court's success is connecting offenders with the FASD Justice Program, said Jodi Koffman, the Crown prosecutor in charge of youth matters in the FASD court. The pre-existing program pairs offenders with case workers who help them navigate housing, probation orders and the justice system.

"We're trying not to set them up for failure again," she said. "I think that from the accused's perspective, it's a piece of support in the community."

Need for growth in community supports

Van Dongen, who is also a member of the committee that created the court, said there's need for more expansion of the FASD Justice Program to meet the demand.

"These workers are overwhelmed at this point, and there's a wait to actually get into the program," she said.

Tannis Toothill, program manager of the FASD Justice Program, said co-ordinating support services in keeping with court timelines can be tough, and the lingering stigma doesn't make it any easier.

But she said there are success stories in the province too, including a growth in "FASD-friendly" placements for young offenders when they've finished their time, such as foster homes or supported living suites.

"The value of the FASD Justice Program is in building the relationship with the person who has an FASD diagnosis, their family and other supports," she said in a written statement.

Van Dongen said she knew even before the court opened that it would soon outgrow its capacity.

"But you have to start somewhere," she said. "This was the starting point, and we'll grow from here."