People who suffer from fetal alcohol syndrome and commit criminal offences don’t belong in jail, Canada’s largest lawyers’ organization says.
At its annual meeting here Saturday, the Canadian Bar Association’s governing council urged the federal, provincial and territorial governments to fund resources for alternatives to incarceration.
Accused individuals who were born with a brain injury because their mother consumed alcohol during pregnancy are frequently encountered by judges, but existing sentencing options are not always effective in changing the offender’s behaviour, said Rod Snow, incoming president of the association.
“Our sentencing is premised on certain assumptions,” he told the Star in an interview. “That people learn from their mistakes. That deterrence works.”
But when it comes to individuals afflicted with fetal alcohol syndrome ”” increasingly known as fetal alcohol spectrum disorder, the term the association uses ”” “the science is telling us these assumptions are not necessarily the case” because the symptoms include poor impulse control, Snow said.
The Correctional Service of Canada has been struggling with the problem for more than a decade. A 1998 report by its research branch put the worldwide incidence of fetal alcohol syndrome at 1.9 in 1,000 people, but higher in aboriginal communities. Aboriginals are over-represented in the Canadian prison system, historically accounting for about 17 per cent of inmates.
It’s unclear what percentage of accused people coming before the courts have the disease. But Snow, who practices law in Whitehorse, recalls speaking with a judge who had a stack of case files in which fetal alcohol disorder was an issue.
Another serious issue confronting the judiciary is self-represented litigants, particularly in family and civil cases.
Speaking with reporters at a press conference Saturday, Chief Justice Beverley McLachlin said approximately one-quarter of all litigants who petition the Supreme Court of Canada for permission to appeal their cases don’t have lawyers.
That translates to between 100 and 125 people a year.
“The problem is that the system is not designed for self-represented litigants,” she said.
In an adversarial system that has historically depended on lawyers, lawyers have to be part of the solution, said McLachlin.
The chief justice said she would not presume to tell lawyers what they should charge their clients.
But more creative methods of delivering legal services could help, she said, citing what’s known as the “unbundling” of legal services.
The concept, which the Law Society of Upper Canada has been studying, would allow a person to do much of the work of preparing a case then hire a lawyer to argue it in court.
By the time their cases are heard in the Supreme Court, most litigants have obtained lawyers, said McLachlin, although the court recently heard an appeal from a self-represented woman in a family law case, via video link from British Columbia.
McLachlin said her court has tried to make it easier for self-represented litigants decide whether to bring their case forward and get documents in order.
“If I can do something, I try to do it,” McLachlin said.
At the Supreme Court, it means ensuring staff lawyers available to answer questions, sending letters to self-represented litigants to notify them if any documents are missing and ensuring their opponents have been served with their material.
Source: Toronto Star (Canada), 14/08/10
