SASKATOON (CP) - The Saskatchewan Court of Appeal is preparing to address the question of whether criminals with fetal alcohol syndrome are entitled to special treatment programs in place of jail.

The appeal court is expected to soon deliver a written decision on a case that came before it on Sept. 20. It would be the first time the higher court has dealt with the issue beyond simply upholding or rejecting a sentence.

Provincial court Judge Mary Ellen Turpel-Lafond has made several rulings ordering the Social Services Department to set up special programs for offenders who have been diagnosed with fetal alcohol syndrome.

Many of Turpel-Lafond's rulings are the ones that have ended up before the appeal court.

"The whole question of FAS is a sleeping giant in the criminal justice system," one unnamed judge told the Saskatoon StarPhoenix.

"As many as 40 per cent of all young offenders in custody are FAS kids. From a narrow point of view, it's not the jurisdiction of the court.

"But if the social policy of the government is to imprison people who are brain damaged rather than give them appropriate therapy, then it becomes a central issue."

Fetal alcohol syndrome occurs when a woman consumes alcohol during her pregnancy. The damage to the child is wide-ranging and permanent.

It can range from brain damage to stunted growth and from learning disabilities to behavioural problems. Sufferers may grasp the consequences of their actions, a characteristic that can persist into adulthood.

Grand Chief Gary Merasty of the Prince Albert Grand Council has no problem with judicial activism on this issue.

"If Social Services is not responding then somebody needs to spark something," he said. "We're all in favour of jumpstarting the Social Services system."

John Whyte, deputy justice minister, said the problem the province has with judges such as Turpel-Lafond turns on jurisdiction.

"We don't believe that judges in sentencing should prescribe specific program responses when that requires the creation of a new program," Whyte said.

"The social problems they want us to deal with are ones that undoubtedly need dealing with. But there comes a point when they give orders which require executive government to make expenditure decisions, design decisions, policy and regulatory decisions which we haven't yet made, and courts don't have that authority over government."

Both lawyers working with fetal alcohol syndrome clients and Social Services officials agree the present system doesn't do enough.

"We still have a ways to go in developing programs for people with FAS," said Doug Wakabayashi of Social Services.

"We have to develop more prevention programs . . . and certainly, aside from prevention, we have to do more in the area of having programs to deal with kids that already have FAS."

Legal Aid lawyer Kathy Grier in Saskatoon has seen the sentences for three of her clients appealed by the Crown this year.

"These were all kids who had a diagnosis of FAS or fetal alcohol effect (a variation), so the regular programs just don't meet their needs," she said.

In one instance, Turpel-Lafond ordered a youth worker be assigned to the case and that a comprehensive plan be prepared for the youth's release.

She also ordered the youth sent to an in-patient treatment centre with an aboriginal focus and special education supports.

Whyte said the government sympathizes with the frustration of the judiciary but won't take orders from judges.

© The Canadian Press, 2000