Justice system struggles to deal with fetal alcohol disorder

The Edmonton Journal
By Nicki Thomas,
January 22, 2012

EDMONTON — Terry Molnar knew nothing of his condition until he was diagnosed about five years ago.

Molnar, 43, has fetal alcohol spectrum disorder, a permanent brain injury afflicting at least one per cent of Canadians. But like the vast majority of people with FASD, he has no visible signs — the small eyes, the flat bridge of the nose and the smoothed and thin upper lip that are strong indicators that a mother drank while pregnant.

"It was an eye-opener for me," Molnar says of his diagnosis. "Now I can understand why I was doing all that stuff," he said, recalling an adolescence and early adulthood spent out of control.

Molnar's pattern of impulsive behaviour — unaltered even after facing consequences time and time again — is now recognized by many in the criminal justice system as the hallmark of an FASD offender.

Since the Alberta government launched its 10-year plan on FASD five years ago — a strategy with heavy emphasis on screening and education — more offenders are coming to court already diagnosed with FASD, and the justice system is struggling to find the most effective ways to deal with them.

Last week, an FASD seminar specifically for judges and lawyers was held for the first time by one of the province's 12 local FASD service networks.

Teresa O'Riordan, a former child and youth care worker who now serves as executive director for the Northwest Central Alberta FASD Network, said judges and lawyers have long been frustrated with "behaviour they have no effect on."

"FASD is a lens through which to look at those behaviours. Now that we know different, we can do different," O'Riordan said.

For Molnar, a difficult childhood spiralled into a turbulent adolescence. At 14, he was charged with conspiracy to commit armed robbery. Egged on by friends, he stole cars. He stole from stores. Ill-equipped to handle him, his adoptive mother turned him back over to social services. He landed in jail for the first time at 18. Public intoxication, failure to pay fines and impaired driving kept him in and out of jail for the next four years.

"I just couldn't get out of trouble when I was younger," Molnar said. "I was a follower. If someone accepted me, I was right there. And it was always a bad crowd."

Molnar's trajectory is common.

In Alberta, it's estimated that half of all children in care have FASD. That over-representation continues into the criminal justice system, with one study suggesting half of all young offenders have the disability, too. Estimates of FASD in the adult prison population are as high as 80 per cent.

They're not sophisticated criminals; their offences often seem "nonsensical or stupid," said Neil Wiberg, an Edmonton-based Crown prosecutor.

A minor crime is often compounded by numerous breaches of probation and failures to appear in court, said Wiberg, who represents Alberta Justice on the province's FASD cross-ministry committee.

Behaviour the justice system once considered defiant is increasingly recognized as symptomatic of an incurable brain injury.

In developing brains, alcohol damages the frontal lobes, forever impairing judgment and impulse control, said Dr. Gail Andrew, medical director of FASD Clinical Services at the Glenrose.

FASD can affect perception of time and ability to plan. People with FASD can lack empathy and remorse. They have trouble learning from the consequences of their actions.

That's why they don't belong in the traditional justice system, said David Boulding, a lawyer and FASD consultant based in Port Coquitlam, B.C.

"When you lose brain cells in utero, you can't bring them back with a probation order or a stiff jail sentence," said Boulding, an opponent of Bill C-10, the Conservative government's omnibus crime bill now before the Senate. The legislation calls for mandatory minimum sentences and removes the option of conditional sentences for offences ranging from sexual assault to drug crimes to auto theft.

The Canadian Bar Association has urged the government to make exemptions for offenders with FASD. Justice Minister Rob Nicholson acknowledged in 2010 that FASD is "a huge problem in our system" and last year, senior officials from his department met with CBA representatives to discuss the issue. The meeting resulted in recommendations, including making all sentencing options available to judges so they can devise one appropriate for FASD offenders.

Still, no exemption was written into the government's crime bill.

"I think that's very unfortunate," said Maureen Collins, executive director of the Edmonton John Howard Society. "The treatment availabilities while one is incarcerated, especially if overcrowding is an issue — which it is and will continue to be — are very, very minimal. The jails then become a bit of a dumping ground for problems in society that we haven't been able to appropriately deal with."

Rod Snow, past president of the national bar association, said for offenders with FASD, incarceration doesn't deter, rehabilitate or reduce the risk of reoffending.

"There is simply no justice in labelling someone a criminal because their disability makes them incapable of meeting the standard of behaviour required by the law," said Snow, speaking last week at a conference hosted by the University of Alberta's Health Law Institute. "Too many individuals with FASD are caught in a revolving door serving . . . a life sentence in 30-day instalments."

Not that FASD is a "get-out-of-jail-free card," Boulding said. He and Wiberg agree that if someone is charged with murder, for instance, a prison sentence is necessary to protect the community. But in appropriate circumstances, the offender and the community are both better served by diversion programs.

What exactly that means remains a question, said Andrew.

"We still owe society protection against crimes. But we also owe these kids protection against being victimized. We haven't got it right yet. We haven't got the divert-to-what question," she said.

Boulding said people with FASD need a lifelong support system in place, something called "an external brain."

"Usually, it's a team of people to stand in and help with certain decisions," he said.

Molnar has that in part in Sandra Homeniuk, his partner of almost 25 years and mother to his three children. Homeniuk handles the money, remembers important names and dates.

He found more support at the Bissell Centre, through an intensive advocacy program funded in part by the province.

Molnar's case worker connected him with a neuropsychologist who diagnosed him FASD, but also helped him with basic needs and emotional support. He found Molnar a dentist to fix his teeth, and supported him when Homeniuk was diagnosed with cancer last year.

He also got him back into hockey, a sport Molnar loved as a child.

"I lost it when I was younger. I lost myself," he said, adding that he wished there were enough programs that he could play hockey every day, instead of just once a week.

"It blocks everything out. When I just focus on goaltending, nothing else matters. Just stopping that puck. If I have hockey, I can be OK."

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