Bill C-583
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2nd Session, 41st Parliament,
62-63 Elizabeth II, 2013-2014
house of commons of canada
BILL C-583
An Act to amend the Criminal Code (fetal alcohol spectrum disorder)
R.S., c. C-46
Her Majesty, by and with the advice and consent of the Senate and House of Commons of Canada, enacts as follows:
1. Section 2 of the Criminal Code is amended by adding the following in alphabetical order:
“fetal alcohol spectrum disorder” or “FASD”
« ensemble des troubles causés par l’alcoolisation foetale » ou « ETCAF »
« ensemble des troubles causés par l’alcoolisation foetale » ou « ETCAF »
“fetal alcohol spectrum disorder” or “FASD” refers to any neurodevelopmental disorder that is associated with prenatal alcohol exposure, and that is characterized by permanent organic brain injury and central nervous system damage that result in a pattern of permanent birth defects, the symptoms of which may include
(a) impaired mental functioning,
(b) poor executive functioning,
(c) memory problems,
(d) impaired judgment,
(e) inability to control impulse behaviour,
(f) impaired ability to understand the consequences of one’s actions, and
(g) impaired ability to internally modify behaviour control;
2. The Act is amended by adding the following after section 672:
PART XX.01
FETAL ALCOHOL SPECTRUM DISORDER
Interpretation
Definitions
672.01 The following definitions apply in this Part.
“accused”
« accusé »
« accusé »
“accused” includes a defendant in summary conviction proceedings and an accused in respect of whom a verdict of not criminally responsible on account of mental disorder has been rendered.
“assessment”
« évaluation »
« évaluation »
“assessment” means an FASD assessment conducted in accordance with section 672.02.
“court”
« tribunal »
« tribunal »
“court” includes a summary conviction court as defined in section 785, a judge, a justice and a judge of the court of appeal as defined in section 673.
“qualified person”
« personne compétente »
« personne compétente »
“qualified person” means a person duly qualified by provincial law to practice medicine or psychiatry or to carry out psychological examinations or assessments, as the circumstances require, or, if no such law exists, a person who is, in the opinion of the court, so qualified, and includes a person or a member of a class of persons designated by the lieutenant governor in council of a province or his or her delegate.
FASD assessment
672.02 (1) A court may, at any stage of proceedings against an accused, by order require that the accused be assessed by a qualified person, alone or with the input of other qualified persons, to determine whether the accused suffers from FASD and, if so, to indicate the relative severity of the disorder. The assessment may be ordered
(a) with the consent of the accused and the prosecutor; or
(b) by the court on its own motion or on application of the accused or the prosecutor, if the court believes a medical, psychological or psychiatric assessment in respect of the accused is necessary for a purpose mentioned in paragraphs (4)(a) to (d) and the court has reasonable grounds to believe that the accused may be suffering from FASD or a similar mental disorder or disability.
Expeditious assessment
(2) A qualified person shall conduct the assessment as soon as practicable and report the results of the assessment in writing to the court.
Evidence may be presumed
(3) If the court is satisfied that there is good reason the evidence of alcohol consumption by an individual’s mother while she was pregnant with the individual is not available, such as in circumstances in which the mother has died or cannot be identified or found, the cause of the FASD may be presumed to be the maternal consumption of alcohol.
Purpose of assessment
(4) A court may make an order under subsection (1) in respect of an accused for the purpose of
(a) considering an application under section 515 (judicial interim release);
(b) making or reviewing a sentence;
(c) setting conditions under subsection 105(1) of the Youth Criminal Justice Act (conditional supervision); or
(d) making an order under subsection 109(2) of the Youth Criminal Justice Act (conditional supervision).
Custody for assessment
(5) Subject to subsections (6) and (8), for the purpose of an assessment under this section, a court may remand an accused to any custody that it directs for a period not exceeding 30 days.
Grounds for remanding
(6) A person shall not be remanded in custody in accordance with an order made under subsection (1) unless
(a) the court is satisfied that on the evidence custody is necessary to conduct an assessment of the person; or
(b) the person is required to be detained in custody in respect of any other matter or by virtue of any provision of this Act.
Report of qualified person in writing
(7) For the purposes of paragraph (6)(a), if the prosecutor and the accused agree, evidence of a qualified person may be received in the form of a report in writing.
Application to vary assessment order
(8) At any time while an order made under subsection (1) is in force, a court may, on cause being shown, vary the terms and conditions specified in the order in any manner that the court considers appropriate in the circumstances.
Assessment not ordered by court
(9) An assessment made by a qualified person as to whether an accused suffers from FASD may be admitted as evidence for a purpose set out in subsection (4) even if the determination was not made as a result of an order by the court under subsection (1).
Report to be part of record
(10) A report made following an assessment under subsection (1) or an assessment admitted as evidence under subsection (9) forms part of the record of the case in respect of which it was ordered or admitted.
Disclosure by qualified person
(11) Despite any other provision of this Act, a qualified person who is of the opinion that a person held in detention or remanded to custody is likely to endanger his or her own life or safety or to endanger the life of, or cause bodily harm to, another person may immediately so advise any person who has the care and custody of the person whether or not the same information is contained in a report made following an assessment under subsection (1).
Period order is in force
(12) An assessment order shall not be in force for more than 30 days, unless a court is satisfied that compelling circumstances exist that warrant a longer period.
Extension
(13) Subject to subsection (14), a court may extend an assessment order, on its own motion or on the application of the accused or the prosecutor made during or at the end of the period during which the order is in force, for any further period that is required, in its opinion, to complete the assessment of the accused.
Maximum duration of extension
(14) No extension of an assessment order shall exceed 30 days, and the period of the initial order together with all extensions shall not exceed 60 days.
3. Section 718.2 of the Act is amended by striking out “and” at the end of paragraph (d), by adding “and” at the end of paragraph (e) and by adding the following after paragraph (e):
(f) if, in the court's opinion, the condition was relevant or contributed to the commission of the offence, evidence that an offender suffers from FASD shall be deemed to be a mitigating factor if it impairs the offender’s ability
(i) to make judgments,
(ii) to foresee and understand the consequences or risks of his or her actions,
(iii) to control impulse behaviour, or
(iv) to internally modify the control of his or her behaviour.
Published under authority of the Speaker of the House of Commons