Justice system slowly adapting to FASD realities

A Carmacks man was found not guilty of assault last month because he was exposed to alcohol in the womb, signalling a growing awareness by adjudicators that FASD sufferers require alternatives to the criminal court system.

A Carmacks man was found not guilty of assault last month because he was exposed to alcohol in the womb, signalling a growing awareness by adjudicators that FASD sufferers require alternatives to the criminal court system.

Robin Sam left his uncle’s house on December 20, 2009, only to return a few hours later. In a violent episode he did not recall in court, he beat his uncle, leaving the man bruised, bloodied and suffering from a fractured eye socket.

Sam was arrested the next day. He suffers from “significant cognitive limitations,” and has a lengthy history with mental health providers. Though he was never diagnosed with Fetal Alcohol Spectrum Disorder, “community reports suggest a likelihood of prenatal exposure to alcohol,” say court documents.

Sam pleaded guilty to the aggravated assault charge. But Territorial Court Judge Karen Ruddy was not convinced Sam understood criminal responsibility by way of a mental disorder.

“There’s a burgeoning awareness in the criminal justice system that current approaches and historical approaches to probation orders and justice may not work for individuals with FASD,” said Brooke Alsbury, the executive director of the Fetal Alcohol Syndrome Society of Yukon.

While this is not the first case where criminal responsibility was found lacking due to neonatal alcohol exposure, it was probably buoyed by the recent push by the Canadian Bar Association to bring FASD on the national justice agenda, said Alsbury.

At its annual meeting in August, the bar association, which represents lawyers, judges and justice workers across the country, passed a resolution declaring the need for the justice system to accommodate FASD sufferers.

FASD impairs judgment, makes it difficult to control impulsive behaviour and reduces a person’s ability to understand the consequences of their actions, says the resolution. On the other hand, the justice system functions on the assumption a person acts in a voluntary manner and makes informed choices, it says.

Sentencing options are ineffective in changing the behaviour of people with FASD, it continues.

As well, the Charter of Rights and Freedoms guarantees “substantive and not merely formal quality before and under the criminal law without discrimination on the basis of their disability,” the resolution says.

With that in mind, the association calls for all governments to spend time and money looking at alternatives for people with FASD in the justice system and to amend current sentencing laws.

Despite a growing consensus, the solution to FASD sufferers in the court system is far from clear.

FASD is a spectrum disorder, meaning every case will be different, said Alsbury.

But research is offering some promising leads.

“What we do know is that support and structure in the community can be incredibly helpful,” she said. “When we look at alternatives to the justice system, we need to examine the ways in which we can build support and work collaboratively with the community.”

“The either/or situation – either no support in the community or putting people in jail – isn’t a good way to go about it,” she said.

Housing is a fundamental piece of the puzzle, she added.

Sam’s situation shows that at the individual case level, an awareness of FASD is having an effect.

Ruddy relied on the testimony of Dr. Shabehram Lohrasbe, who wrote two court-ordered psychiatric assessments on Sam, and psychologist Bill Stewart, who has counselled and provided support services for Sam in Carmacks, in her decision.

But here, at the systemic level, change hasn’t happened yet, said Alsbury.

“That’s why the Canadian Bar Association’s recent announcement is pretty critical,” she said.

“It’s starting to recognize, at that level, that we can have some common language and roll out some new systems on that understanding,” she said.

Contact James Munson at

jamesm@yukon-news.com

Get local stories you won't find anywhere else right to your inbox.
Sign up here

Just Posted

Team Togo member Katie Moen sits in a sled behind a snowmobile for the ride from the airport to Chief Zzeh Gittlit School. (Haley Ritchie/Yukon News)
Coming together: How Old Crow became one of the first communities in the world to be fully vaccinated

Team Togo and Team Balto assembled with a mission to not waste a single dose of vaccine

Main Street in Whitehorse on May 4. If council moves forward with bylaw changes, eating and drinking establishments could set up pop-up patios in on-street parking spaces. (Stephanie Waddell/Yukon News)
Patios may be popping up in Whitehorse this summer

City considers program for downtown restaurants and bars

The Yukon Coroner's Service has confirmed the death of a skateboarder found injured on Hamilton Boulevard on May 2. Gabrielle Plonka/Yukon News
Whitehorse man dies in skateboarding accident

Coroner urges the use of helmets, protective gear, while skateboarding.

The new Yukon Liberal caucus poses for a photo during the swearing-in ceremony held on May 3. (Yukon Government/Submitted)
Liberal cabinet sworn in at legislature before house resumes on May 11

Newly elected MLA Jeremy Harper has been nominated as speaker.

The Yukon Wildlife Preserve’s baby bison, born April 22, mingles with the herd on April 29. (John Tonin/Yukon News)
Yukon Wildlife Preserves welcomes two bison calves

A bison calf was the first 2021 baby born at the Yukon Wildlife Preserve

A map provided by the Yukon government shows the location of unpermitted logging leading to a $2,500 fine. (Courtesy/Yukon government)
Man fined $2,500 for felling trees near Beaver Creek

The incident was investigated by natural resource officers and brought to court.

The site of the Old Crow solar project photographed on Feb. 20. The Vuntut Gwitchin solar project was planned for completion last summer, but delays related to the COVID-19 pandemic pushed it back. (Haley Ritchie/Yukon News)
Old Crow is switching to solar

The first phase of the community’s solar array is already generating power.

Chief Medical Officer of Health Dr. Brendan Hanley. (Crystal Schick/Yukon News file)
One new case of COVID-19 in the Yukon

Case number 82 is the territory’s only active case

Flood and fire risk and potential were discussed April 29. Yukoners were told to be prepared in the event of either a flood or a fire. Submitted Photo/B.C. Wildfire Service
Yukoners told to be prepared for floods and wildland fire season

Floods and fire personelle spoke to the current risks of both weather events in the coming months.

From left to right, Pascale Marceau and Eva Capozzola departed for Kluane National Park on April 12. The duo is the first all-woman expedition to summit Mt. Lucania. (Michael Schmidt/Icefield Discovery)
First all-woman team summits Mt. Lucania

“You have gifted us with a magical journey that we will forever treasure.”

Whitehorse City Hall (Yukon News file)
City news, briefly

Whitehorse goings-on for the week of April 26

The Yukon Department of Education in Whitehorse on Dec. 22, 2020. The department has announced new dates for the 2021/2022 school year. (John Hopkins-Hill/Yukon News file)
Yukon school dates set for 2021/22

The schedule shows classes starting on Aug. 23, 2021 for all Whitehorse schools and in some communities.

Most Read