Justice system fails people with FASD

Sylvie Baril's son has been in and out of jail more than a dozen times. He's only 19. Each time he's released from jail, he usually breaks his probation order in less than a week.

Sylvie Baril’s son has been in and out of jail more than a dozen times.

He’s only 19.

Each time he’s released from jail, he usually breaks his probation order in less than a week.

Once, it took less than two hours.

But Baril’s adopted son, Maxim, isn’t a violent or hardened criminal.

He has fetal alcohol spectrum disorder and doesn’t learn from mistakes like other people do.

When he was growing up, he would burn himself repeatedly.

When Sylvie and her partner took him to the pool when he was a child, they would tell him to wait before going into the deep end.

“He’d repeat the rules back to us and then just run and dive in,” said Sylvie. “He didn’t know how to swim.”

Maxim is charming and funny.

He has playful blue eyes and short, spiky brown hair. If you met him, you might never know that he has FASD.

“He’s a good talker,” said Sylvie.

“He can repeat a lot of things he’s learning, but it’s not sinking into his brain.”

This is particularly true in court where Maxim can tell the difference between a judge and a lawyer – the litmus test the courts use to decide whether a person is fit for court – and parrot back what the judge wants to hear.

Maxim can list off the 16 probation orders he needs to follow to stay out of jail.

One of them is to avoid drinking.

But ask him the first thing he’ll do when he gets out of jail, and he says, “Have a conversation with a bottle of vodka.”

Before Maxim could even stand up and walk, as a child, he was already reaching for beer, said Baril.

“It’s like he already knew the smell and it never left him.”

Many people born with FASD battle addictions to alcohol and drugs. They also have poor impulse control, meaning their addiction can lead to theft and then jail, as it did for Maxim.

Maxim is no longer allowed in his mother’s house.

When he’s out of jail, he’ll show up at her house drunk and steal booze or things he can sell quickly for money.

Sylvie’s living room is empty. There’s no sound system, television or art on the walls.

“He’d walk in and take whatever he could sell for $10 or $20 for alcohol,” she said.

“He’ll never say, I’m sorry. He doesn’t do that. He doesn’t have any feelings of guilt or empathy.”

Sylvie and her partner did everything to raise their son in a good home.

They never kept any alcohol in the house. They hired a nanny for two years to help look after their son. Sylvie even quit her job for a short period to home school Maxim.

But children with FASD don’t grow out of their disability. They struggle with poor reasoning skills for the rest of their lives.

Yukon Deputy Judge Heino Lilles estimates that as many as 50 per cent of the people who are sent to the Whitehorse Correctional Centre have FASD.

It’s a staggering number, he admits.

He has files on some people that are several inches thick.

Like Maxim, many of the people with FASD that he sentences he knows will re-offend.

“The reason they’ll be back is that when they get out of jail, unfortunately, we don’t have the supports for them in the community we should have,” said Lilles.

He’d like to see more supported living situations for people with FASD and more money poured into prevention.

Lilles is making waves in the legal community for his work on sentencing individuals with FASD.

Judges and lawyers in places as far away as New Zealand know of his cases.

One these individuals is a man named Franklin Charlie Jr. who made headlines earlier this year.

He was charged with a violent break and enter, and for stealing a car for a case of beer.

Lilles didn’t dole out the usual five-year sentence.

Charlie was given two years in jail and released on the condition that he return to his community of Ross River and stay in a supported environment with his brother.

Charlie’s FASD is a “direct result” of the Yukon’s history of colonization and residential schools, said Lilles in his sentencing report.

That, coupled with his developmental challenges, was reason enough to lighten his sentence, said Lilles.

The idea of differential sentencing for people with FASD is only recently taking off across Canada.

And that’s partially thanks to a lawyer from Whitehorse.

When Rod Snow was president of the Canadian Bar Association in 2010, he brought forward a resolution urging the federal government to amend criminal sentencing laws to accommodate those with FASD.

It also called on governments to allocate resources to prevent these individuals from ending up in the justice system in the first place.

The resolution was well received, said Snow.

“It’s resulted in a discussion about the challenges of FASD in the justice system in a way that I don’t think had been discussed before,” he said.

Across the border, strides are being made in sentencing offenders with FASD.

Earlier this week, Alaska legislators passed a bill allowing judges to hand out more flexible sentences if FASD is diagnosed or suspected.

In Canada, however, the recent passing of the federal Conservative’s omnibus crime bill – which outlines mandatory minimum sentencing for offenders – may erase some of the inroads made by Snow’s resolution.

“I think Bill C-10 will be disastrous for the most disadvantaged and that includes individuals with FASD,” said Fia Jampolsky, who worked as a legal aid lawyer in the Yukon for several years.

“We’re taking a huge step back.”

Jampolsky is working on a research paper about offenders with FASD who have themselves been victimized.

There’s a clear crossover between both populations, she said. People with FASD are easily manipulated.

Some people she has interviewed were abused as children or taken advantage of as adults.

Others were led into committing a crime by people that are higher functioning than them. And because they don’t understand the consequences of what they’re doing, they’re often the first people the police find when they show up at a scene of a crime.

Sometimes the victimization happens right in jail.

One of the FASD offenders that Lilles has sentenced was sexually assaulted by a group of male inmates.

The jail has a responsibility to look after its inmates, said Lilles.

“The clientele (with FASD) who are in custody go where they’re told to go and can’t say, ‘I don’t want to be near that person because he might sexually assault me.’”

And yet, ironically, jail is sometimes the safest place for people with FASD.

“We lock them there so the community is safe, everybody is safe. My son is sleeping at night and he’s safe. And it’s sad,” said Sylvie.

Her son still doesn’t understand why he’s there.

“He’ll say, ‘I want to be out like anybody who is 19. That person is drinking and he’s not getting arrested. I’m drinking and I’m getting arrested,’” said Sylvie.

Canada’s criminal code isn’t geared towards people with intellectual disabilities like FASD, said Andrea Bailey, a Yukon lawyer and a board member of the Fetal Alcohol Spectrum Society of the Yukon.

“You have adults who process things like they’re eight years old and we don’t put eight-yea-old people in jail,” said Bailey. “We don’t even punish them under the criminal code.”

And yet individuals with FASD are disproportionately represented in Canadian jails.

A study done by Albert Chudley in Winnipeg found that 28 per cent of the inmates in Manitoba’s Stony Mountain jail had FASD or suspected FASD, even though the disorder affects roughly one per cent of the population.

And 23 per cent of youth incarcerated in Burnaby’s youth jail (where Yukon youth are sent) were found to have some form of FASD, according to a study by Diane Fast in 1996.

The territorial government is currently doing its own prevalence study with Yukon inmates. But no numbers have been crunched yet.

“The jail system is being used for the wrong purpose,” said Ottawa law professor Larry Chartrand.

“These people (with FASD) aren’t going to be able to adjust their behaviour necessarily. And so they’re being basically warehoused rather than rehabilitated.”

It costs about $100,000 a year to keep an individual in jail in the Yukon, said Lilles.

That money could be better spent offering resources in the community to people with FASD.

The Yukon’s community wellness court handles some FASD offenders through their unique court system.

It’s targeted at repeat offenders who have mental illnesses, cognitive disabilities and addictions.

Rather than winding up in jail for a minor offence like theft, offenders serve their time in the community where they keep daily contact with probation officers and counsellors.

It’s a successful model, according to the Canadian Institute for Law and the Family.

But offenders must demonstrate that they’re motivated to complete the two-year program. That can be a problem for some people with FASD who may not see the long-term benefits.

To wit: a study of the Yukon’s community wellness court found that only one of 12 people with FASD who applied for the program between 2007 and 2011 actually completed it.

“It’s a long process,” said court co-ordinator Tanya Basnett.

“Those with cognitive issues might, midway-through the program, think it’s too long and leave because they can’t see the end of the rainbow.”

That’s what happened with Maxim. He tried going through the community wellness court two or three times, but dropped out each time, said Sylvie.

And what’s being offered to inmates like Maxim at the regular jail isn’t always adequate.

There was a lack of addiction and counselling supports in the old jail specifically tailored to people with FASD, said Elizabeth Fry Society co-ordinator Rosemary Rowlands.

“We know for certain that when a person is not into their addiction then they’re not committing crimes or they’re quite reduced,” said Rowlands.

“The whole issue of addiction is something that needs to be far more put into the spotlight.”

Rowland’s hoping the new jail will have additional programs for people with FASD.

But Baril isn’t optimistic that anything will change anytime soon.

She firmly believes that the best option for re-offenders, like her son, is a ranch-like facility out on the land with supports.

Facilities like this currently exist in Alberta and Minnesota.

“We know that the jail system doesn’t work for them because they can’t learn consequences,” said Sylvie.

They need a place instead where there’s a schedule and meaningful work for them to do.

“Like everybody, they need to wake up in the morning and have a reason to look forward to the day.”

This is the third in a six-part series on fetal alcohol syndrome disorder in the Yukon. The writer received assistance from the Canadian Institutes of Health Research for this series.


Percentage of people with FASD over the age of 12 who have been charged with or convicted of a crime: 60 per cent

Percentage of adults with FASD aged 21 to 51 who have addictions to drugs and alcohol: 46 per cent

Percentage of people with FASD who have experienced verbal, physical and/or sexual abuse: 87 per cent

(Compiled from research by Ann Streissguth; The Canadian Journal of Clinical Pharmacology. )