Yukon MP Larry Bagnell has introduced a private member’s bill in the House of Commons that would require courts to consider fetal alcohol spectrum disorder as a mitigating factor during sentencing.
The bill would also require that courts prescribe external support plans to help offenders with FASD reintegrate into society. And it would compel the correctional system to recognize FASD as a disability.
“Presently, the way (people with FASD) are treated in the courts and sentencing … it’s just totally inappropriate. It doesn’t make any sense,” said Bagnell. “I think it’s a human tragedy. It’s not justice.”
FASD is a permanent brain injury that can occur in a fetus when a mother drinks alcohol during pregnancy. It can cause mental disabilities, memory problems, impaired judgment, poor impulse control and an inability to understand the consequences of one’s actions.
Under the proposed changes to the criminal code, a court could order an accused person to undergo an assessment for FASD at any point during court proceedings. The accused person or the prosecutor could also request an assessment.
The accused could be kept in custody for up to 30 days while the assessment is being carried out.
The court would be required to consider FASD as a mitigating factor during sentencing if the disorder is found to impair the offender’s ability to control impulses, make judgments or understand the consequences of his or her actions.
In such cases, the court would also require that a probation officer establish an external support plan for the offender.
Bagnell said that element is important, because people with FASD often have no sense of timing, and are likely to miss appointments with probation officers.
“So you need a support worker to help make sure they make these type of appointments,” he said. “They need that type of support or … it’s like a revolving door. They’ll just be right back in jail.”
This part of the bill is identical to a private member’s bill introduced by Conservative MP Ryan Leef in the spring of 2014. That bill received support from all three major parties, but Leef withdrew it after realizing it likely wouldn’t be passed in time for the 2015 federal election.
At the time, the issue was that MPs introduce hundreds of bills and motions each session. The order in which those bills are debated is decided by lottery. At the time, Leef was drawn 130th out of 243 MPs.
But this time, Bagnell said he’s 34th on the list, which should mean his bill will come up for second reading within a year.
Bagnell’s bill also contains some new changes to the Corrections and Conditional Release Act. The changes would compel Correctional Service Canada to provide special programs for people with FASD.
He said the bill is based on recommendations made by the Canadian Bar Association in 2010.
This bill is identical to one tabled by Liberal MP Sean Casey in March 2015, which, like Leef’s, went nowhere.
Most private member’s bills never become law, but Bagnell said he’s optimistic about this one.
“It was very positively received the last time it came forward,” he said. “Hopefully that’s a good sign.”
Contact Maura Forrest at