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AMBITION FOILED – Yukon MP Larry Bagnell stands during question period in the House of Commons on Dec. 6. THE CANADIAN PRESS/Fred Chartrand

‘We’ve moved the marker forward’: MP

Though it was defeated in the House of Commons on Tuesday,

By Sidney Cohen on December 14, 2016

Though it was defeated in the House of Commons on Tuesday, Yukon MP Larry Bagnell says his bill to have the courts give special consideration to people with Fetal Alcohol Spectrum Disorder (FASD) has elevated the conversation surrounding the disability in Canada.

“We’ve moved the marker forward, and we’ll just keep on with this momentum and hopefully we’ll get there one day,” he said in an interview from Ottawa after the free vote.

Bill C-235, Bagnell’s private member’s bill, would amend the Criminal Code to require judges to consider FASD as a mitigating factor in sentencing, and would establish an assessment process for people suspected of having FASD.

The proposed legislation would also enable the court to order an offender with FASD to follow a support plan upon release, as a condition of probation.

The vote was 133 for Bagnell’s bill, and 170 against.

C-235 had support across the floor from both NDP and Conservative MPs, but bills introduced by MPs other than cabinet ministers don’t often pass.

Robert-Falcon Ouellette, the Liberal MP for Winnipeg Centre, noted that C-235 was a step toward implementing the recommendation by the Truth and Reconciliation Commission that calls for exemptions from mandatory minimum sentences or imprisonment for offenders with FASD.

One reason Bagnell believes his bill was defeated is because it didn’t have the support of a federal-provincial-territorial committee tasked with examining the issue of FASD in the justice system.

The committee noted that criminal law doesn’t discriminate between disabilities, and determined that there was “no policy rationale for singling out FASD.”

Liberal MP Bill Blair, the parliamentary secretary to Justice Minister Jody Wilson-Raybould, said he did not support the bill because of the “potential discriminatory impact” of singling out a single disorder.

He did say, however, that it’s worth looking at expanding assessment powers of the courts for the purposes of sentencing.

Bagnell doesn’t agree with the notion that there is no policy rationale to afford special consideration to FASD over other disabilities.

“When you find you have a specific deficiency like (FASD) that has a whole bunch of attributes, unlike any other deficiency, directly connected to the justice system, and an analysis proves that, it doesn’t make sense to not go ahead with it,” he said.

“They thought other things could be done to help people with FASD, which is true, of course; we’ve said that all along, but it doesn’t help the ones in the justice system.”

The Fetal Alcohol Syndrom Society Yukon (FASSY) describes FASD as conditions that appear in a person whose mother drank alcohol while pregnant, resulting in damage to the brain and central nervous system. FASSY recognizes FASD as a disability.

FASD can impact a person’s intellectual development and social life.

People with FASD may struggle with substance use issues and can have a hard time holding down a job.

They may also experience behaviour issues, such as difficulty understanding the consequences of one’s actions, impulsivity and memory problems, which can lead to involvement in the criminal justice system.

Studies in Canada have indicated that people with FASD are over-represented in the criminal justice system.

Defence counsel Melissa Atkinson knows first-hand the institutional barriers faced by those with FASD who come into conflict with the law.

The Whitehorse lawyer recalled one client who kept missing his scheduled meetings.

“I said, ‘I don’t want to be overburdening you, I don’t want to be overstepping my bounds, but you must work with other social workers, how do you remember their appointments? How come you can’t remember my appointment?’”

She suggested giving the client her business card, and he said he’d probably lose it, so she said she’d call to remind him. He responded that sometimes, he doesn’t have minutes on his phone.

Atkinson had one client come in every other day so he’d have a greater chance of showing up on the day of his appointment.

“Their connections in their brains work differently,” she said.

It can be little problems, like remembering appointments with lawyers or probation officers, that keep people with FASD cycling through the criminal justice system, said Wenda Bradley, FASSY’s executive director.

“Memory is a big issue, putting things in a sequence is difficult, feeling the passage of time,” she said.

“I don’t know if it’s Monday or Friday. Has it been three days since I went to my probation officer, or has it been two weeks?”

Bradley appreciated C-235 because it included a plan to help people manage their probation and bail conditions.

It’s important, said Bradley, not to think of FASD as a disease that can be treated. It’s a disability, and those who have it benefit from ongoing support.

FASSY doesn’t have a hard and fast number for people who were born with FASD in the Yukon.

The Public Health Agency of Canada estimated in 2014 that FASD affects about one per cent of people in Canada.

A 2016 study of the Yukon’s jail population suggested that about 31 per cent of incarcerated offenders had FASD or “disability levels similar to those with FASD, but without confirmation of prenatal alcohol exposure.”

The path to an FASD diagnosis is “a bit complicated,” said Bradley.

In the Yukon, she said, a person needs to see a physician with deep knowledge of the disorder, a neuropsychologist and possibly an occupational therapist.

All this in addition to tracking down the mother and confirming she drank while pregnant, which is often “next to impossible,” said Atkinson.

“You have to get someone to admit they’re a bad mom, and that stigma is devastating.”

Bagnell estimated the cost of a court-ordered FASD assessment to be around $5,000. This up front cost, however, would be offset in the long run because governments wouldn’t be paying to keep them in prison.

“It would save a lot of money, and more important, a lot of suffering for someone who doesn’t know they’re committing a crime.”

Bagnell said the Yukon is a leader among Canadian jurisdictions, in that judges in the territory often consider FASD as a mitigating factor in their decisions.

Prime Minister Justin Trudeau has tasked Wilson-Raybould with reviewing Canada’s criminal justice system.

Bagnell and other FASD advocates hope she will consider offenders with FASD and do away with mandatory minimum sentences, or offer judges more discretion in sentencing.

This isn’t the first time proposed legislation for people with FASD in the justice system has come before the House.

Ryan Leef, the Yukon’s former Conservative MP, introduced a similar bill in 2014. It was based on recommendations made by the Canadian Bar Association that were championed by Whitehorse lawyer Rod Snow.

Sean Casey, the Liberal MP for Charlottetown, introduced an FASD bill after Leef under the previous Conservative government.

Comments (9)

Up 6 Down 4

Resident on Dec 15, 2016 at 4:43 pm

Ultimately, the question is: What is the purpose of corrections?

If you believe in punishment, than FASD is a non-factor. Just lock them up and if they reoffend, lock them up again. It's not society's problem if the person is not capable of connecting their actions with the punishment to change behaviour.

If you believe in rehabilitation while removing risk from society, than it's obvious that simple incarceration does not work for FASD criminals. There are likely better avenues to reform those with FASD into at least law-abiding citizens. This doesn't mean that they are getting away with their crimes, in many cases I'd imagine that the criminal would remain in the correctional system indefinitely as opposed to being released at the end of a sentence.

Trying something else must be cheaper than running these people through the entire justice system over and over again, plus the costs to their victims.

Up 13 Down 8

jc on Dec 15, 2016 at 2:17 pm

Stephen Harper Conservatives had the right idea - "If you do the crime, you serve the time". But our politically correct liberal politicians and judges thought they had a better idea - turn them on society and let them pay the price.

Up 21 Down 9

jc on Dec 14, 2016 at 9:43 pm

With few exceptions, these are the most dangerous and crime prone people in society. The most violent ones should be locked up until they are so old they would pose no threat to society. However, the less violent should be put in more suitable places for treatment instead of the prisons they are in now. Many who suffer FASD are quite aware of their criminal nature and society has to be protected from them. And for those, special kid glove treatment should not be afforded to them. I worked in the system for many years and gained some knowledge of people with FASD. As for Larry, he obviously is trying to make some browny points, however I don't know from who.

Up 17 Down 9

Just Say'in on Dec 14, 2016 at 7:49 pm

Is it just me or is this so crazy it defies logic. Let's let them all out and we can get in. It will be the only safe place.

Up 21 Down 9

Just Say'in on Dec 14, 2016 at 7:48 pm

So now a guy shows up in court for murder and flops down his Gladue report. His third generation residential school harsh potty training certificate and now his fetal alcohol spectrum diagnosis and away we go. Would you like some fries with that? How about a free house and a pension for life? But don't pay your debt to society, heaven forbid. Yeah Larry we need more laws.

Up 11 Down 8

Just Say'in on Dec 14, 2016 at 7:44 pm

Isn't this already part of their Gladue report? Sorry on the spelling. They made up the word not me. isn't even in the dictionary. haha

Up 16 Down 9

Just Say'in on Dec 14, 2016 at 7:42 pm

So another 31% get out of jail free card. Great.

Up 14 Down 8

toe on Dec 14, 2016 at 7:26 pm

I have toe nail fungus and am not criminally responsible!!

Up 18 Down 8

Red on Dec 14, 2016 at 5:10 pm

Great...more attempted exemptions and more reasons for even less people to take responsibility for their actions...glad it didn't pass.

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