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Lawyers push for more support for FASD

The Yukon branch of the Canadian Bar Association wants the territory to become the first jurisdiction in the country to write human rights language directly into the Corrections Act.

The Yukon branch of the Canadian Bar Association wants the territory to become the first jurisdiction in the country to write human rights language directly into the Corrections Act.

The group is calling for an amendment stating explicitly there is a “duty to accommodate” people with fetal alcohol spectrum disorder within the correctional system.

“What’s legally required is to accommodate. That means just on a case-by-case basis to look at what the needs are of the person you are providing a service to,” explained local branch president Heather McFadgen “You meet those needs if they are related to disability to the point of undue hardship.”

The national bar association passed a resolution earlier this year calling on the Canadian government to make similar changes to federal laws.

The duty to accommodate people with disabilities already exists in current human rights laws, said McFadgen, who is also executive director of the Yukon Human Rights Commission.

She argued it’s helpful to repeat the language in other legislation.

“The benefit is that it had education value and that incorporating human rights principles and terms into other acts is useful. The people that are governed by that act are reading that act and not necessarily the human rights act.”

FASD describes a range of permanent disabilities caused by drinking alcohol during pregnancy

Talk of changes to the Yukon’s legislation first came up in September when the government opened the act to make other, unrelated amendments.

No changes related to the duty to accommodate were made at that time, but McFadgen said she is hopeful they can happen in the future.

Discussions were reignited when the national president of the bar association paid a visit to Whitehorse this week.

Fred Headon was in town and met with Yukon Justice Minister Mike Nixon and other politicians.

He said making the change to the Yukon Corrections Act would help those working in the system get the resources they need.

“If we can get a recognition that the tools are required, then at least the correctional staff have a basis to go and find the money, to get the resources, to bring in those other people who can help them ensure this is a fair experience.”

Headon said the definition of what it means to accommodate is usually handled on a case-by-case basis.

“That could mean making sure that they have the proper supports while they are there, making sure there are resources available to them while they’re in custody. It can also mean things like, when the prison discipline system is being invoked, making sure their condition is accounted for when discipline is being handed out and they’re getting fairly treated at that stage as well.”

Headon said the Yukon government is already taking the lead in other aspects of dealing with people with FASD in the justice system.

Earlier this year, the territory agreed to study how much of the jail population has FASD.

Headon applauded the efforts, pointing out that there has been very little work done to quantify exactly how serious FASD is in the corrections system.

“I think that will be a very helpful piece of information in terms of being able to articulate for policymakers the extent of the problem and the range of the problem, because of course it doesn’t present itself in the same way with every individual,” he said.

According to the Yukon’s Department of Justice, plans for the study are underway. A principal investigator from the University of British Columbia has been hired. Now the project needs to go through the university’s ethics committee at the end of January, said Justice spokesperson Dan Cable. The research will begin after that.

Nixon said he had a productive meeting with Headon and McFadgen. As for whether or not he would support amending the Corrections Act, the minister said he is still collecting information on exactly what is being proposed.

Headon said the justice system has changed and so have the expectations of judges.

“There’s now an expectation that the legal system is going to deal with a whole range of problems that it never dealt with before and is pretty poorly equipped to deal with.”

That includes things like FASD or mental health issues.

He criticized mandatory minimum sentences recently introduced by the federal government, saying this took away power from judges to address situations like an offender with FASD.

He also called on the government to provide other supports to residents with mental health issues.

“Make sure the health system is properly resourced, the social service system is property resourced, to help keep these people out of the legal system in the first place.

“Because that just becomes a revolving door. They come out of the courtroom and into prison. Well the prison is no better equipped and when that term’s done and they come out the other end there’s a high likelihood they’re going to start this cycle all over again.”

Contact Ashley Joannou at