A young Indigenous man sat in a Winnipeg courtroom at the end of August, staring intently at his red running shoes, occasionally fidgeting with his shirt.

“We all know [my client] has FASD but he has not been formally diagnosed,” his defence lawyer, Wendy Martin White, told the judge.

“What we think of normally for rehabilitation has to be thought of differently for someone like [my client].”

That young man is part of a problem everyone knows Canada’s corrections system faces — but no one is sure just how big the problem is thanks to under-diagnosis.

Research suggests up to a quarter of inmates in federal corrections could have fetal alcohol spectrum disorder, but Correctional Service Canada only provided funding for seven specialized assessments across the country last year, according to information provided to the country’s prison watchdog for the 2016-17 fiscal year.

Corrections Canada said assessments may have been funded at the local level but that information was not available.

Correctional Investigator of Canada Ivan Zinger said his office has provided several recommendations over multiple annual reports about collecting better data on the prevalence of FASD, doing better assessments and providing tailor-made programming, but “very little is actually being done to address the issues,” he said.

“We are quite disappointed with the service on this matter.”

‘They are the ones that get caught’

Fetal alcohol spectrum disorder is a brain injury that is caused when an unborn baby is exposed to alcohol. It is the leading known cause of preventable developmental disability in Canada, impacting at least one per cent of people across the country, according to Health Canada.

FASD can range from mild to severe. Some people show physical signs, like a smooth ridge between the nose and upper lip and a smaller head, but many of the conditions associated with FASD are cognitive, including poor memory, learning disabilities, difficulty in school and poor reasoning and judgement skills.

People with FASD can end up coming into conflict with the justice system because many of the symptoms make them followers, said Albert Chudley — a top FASD expert, geneticist and professor at the University of Manitoba.

Those who live with the disorder don’t understand the world the same way other people do, he said.

“They are rarely the leaders in crime but they are the ones that get caught.”

Chudley was part of a Correctional Service Canada report in 2011 looking at FASD prevalence at Stony Mountain Institution in Manitoba. It found that 10 per cent of participants had FASD, and another 15 per cent met some of the diagnostic criteria, but were missing information to make a confirmed diagnosis — such as maternal confirmation of drinking during pregnancy. Chudley said he was shocked to see the FASD rate was 10 times greater in Stony than the general population.

“I thought maybe double, maybe triple, but not tenfold greater. And that’s an underestimate,” he said.

The report had three recommendations, including starting FASD screening upon admission to federal corrections. That means inmates could get FASD-focused programs while behind bars to better prepare for re-entry to the community. But Chudley said none of those recommendations were acted on.

“We think that there is good evidence that when they get the help and the support, reoffending drops,” he said. “So it saves the community, it saves everybody a lot of the costs — not just monetary costs, but the costs to society and to families.”

Once inside, inmates with FASD have a poor correctional outcome, according to the prison watchdog. They are more likely to be involved in institutional incidents, incur institutional charges and spend more time of their sentence incarcerated, and are less likely to complete programs.

‘We need to adjust our expectation’

Up to 60 per cent of Martin White’s clients are either confirmed to have, or suspected of having, fetal alcohol spectrum disorder, she said in an interview after the August court appearance with her client. That client, who she asked CBC News not name, started picking up charges when he was a teenager.

He’d been shuffled around the child-welfare system and ended up living with his foster grandfather, who was in the courtroom during the sentencing in August.

But when the grandfather had health issues, Martin White’s client went into different support homes. When he gets angry or his routine is broken, he acts out, often by exposing himself or masturbating in public. From 2012 to 2017, Martin White’s client was convicted multiple times, including several times for failing to comply with his probation orders.

Winnipeg courthouse

Winnipeg lawyer Wendy Martin White says up to 60 per cent of her clients have fetal alcohol spectrum disorder. (Bert Savard/CBC)

Martin White told the court that her client will never be 100 per cent cured and “we need to adjust our expectation of his abilities.” While he doesn’t have a formal FASD diagnosis, he shows clear cognitive disabilities and there’s a confirmation from his birth mother that she was drinking while pregnant.

Martin White said it would be best if Manitoba had a specialized FASD court but until then corrections, both provincial and federal, need to start looking at things differently — starting with getting people diagnosed.

“Those kinds of diagnosis are super critical to properly dealing with the individual,” she said.

Provincial and territorial numbers unknown

While there have been some estimates of the number of federal inmates with FASD, when it comes to provincial jails, that number is largely unknown. Each province and territory has a different approach, but most do not do FASD screening upon entry and do not keep statistics.

A spokesperson for the government of the Northwest Territories said they do not track the number of people in jails there with FASD, but they “believe there are a significant number.” The territory does have a wellness court specifically designed for people with addictions or cognitive issues.

In British Columbia, inmates who are accepted into the Integrated Offender Management Homelessness Intervention Program are screened for FASD, but that doesn’t include all inmates.

Many provinces do have more robust testing in youth justice, including the FASD Youth Justice Program in Manitoba, which helps kids who may have been affected by prenatal alcohol exposure get a formal diagnosis.

‘I’ve been dragged through the mud’

Russ Hilsher, 40, says his diagnosis has been essential to connecting with services that have helped him avoid the justice system — or in some cases, navigate it more successfully.

Originally from Ghost River, near the mouth of the Cheepay River in northeastern Ontario, Hilsher’s birth mother drank during her pregnancy. He was taken from her soon after and was diagnosed with FASD as a baby.

But when he moved to a foster home in Winnipeg around the age of 13, the “transition from bush life to city life” was difficult, he said.

He struggled in different areas of his life, especially school, where there wasn’t much information shared with teachers about FASD. One time, he was asked to write a book report, so he went home and rewrote the book — word by word — until he fell asleep. When he turned it in to his teacher the next day he was upset to find out he didn’t get any marks for his hard work.

Russ Hilsher

Russ Hilsher, 40, says having his fetal alcohol spectrum disorder diagnosis was important, but there aren’t enough resources behind bars. (Kelly Malone/CBC)

He also started getting picked up by police for things like theft. Hilsher explained that he would see something on the street and just pick it up, without ever thinking it belonged to someone else. Later, he was charged with offences like assault and fraud.

“It’s been rough over the last 20 years for me with the criminal justice system and being involved in that,” Hilsher said.

“Luckily, now I am able to step back from it and look back at it and say, ‘Wow, I’ve been dragged through the mud,'” he said.

“Now I’m just kind of brushing the mud off myself.”

When he first became involved with the justice system, Hilsher said lawyers and judges didn’t really understand what his diagnosis meant and how it contributed to the trouble he was getting in. He said that’s improved over the last decade, but said that inside corrections, it’s still a struggle for people with FASD to connect with services and programs, and to avoid trouble.

Corrections needs a national strategy: Zinger

Correctional Service Canada is committed to responding to the needs of federal offenders with FASD, spokesperson Stevenson Stephanie said in an email to CBC News. Corrections Canada does a mental health screening at intake, which identifies offenders who may require mental health services, she said. But the agency does not track the number of offenders entering federal correctional facilities who live with FASD.

“We have adopted a multi-pronged approach to strengthening the provision of correctional services to offenders with mental health needs,” she said.

“This includes: providing resources to our staff; ensuring our programs assist offenders with cognitive deficits, including those demonstrated within the FASD continuum; adapting correctional programs to maximize the learning of individual offenders, including those with FASD; offering additional individualized supports; and ensuring offenders undergo education assessments upon admission to maximize their potential to benefit from our programs.”

Without knowing how many inmates have FASD, Canada’s prisons can’t even begin to truly meet their needs, Zinger said.

“I think there should be an overall strategy, a national strategy that would go from admission to assessment to programming to discharge planning to community corrections,” the corrections investigator said.

“There is no systemic assessment and nothing in terms of programs.”