Yukon MP Larry Bagnell says he's disappointed in his fellow MPs for rejecting his bill that would allow special treatment of people with fetal alcohol spectrum disorder (FASD) involved in the criminal justice system.

Bagnell's private member's bill, C-235, would have amended the Criminal Code and given courts the power to order assessments and consider FASD a mitigating factor in sentencing. MPs voted it down on Tuesday evening, 172 to 133. 

Bagnell says it amounts to MPs voting to continue mistreatment of brain-damaged people in Canada's justice system.

Larry Bagnell

Bagnell had proposed BIll C-235 which proposed to amend the criminal code to consider FASD a mitigating factor in sentencing. (Cheryl Kawaja/CBC)

"I feel very sad for the people with FASD, who will still not be treated properly in the courts and in the jails," he said.

Bagnell has said the justice system is "choked" with people who have FASD. 

"The cost has been billions of dollars to Canada, but more than that, immense human suffering by people who don't understand why they're in jail, or what they've done, or how to stop doing it."

​Unfair to consider FASD alone, Liberals say

The bill earned support from individual members of all parties, except the Bloc Québécois. Two of the North's MPs — Bagnell and the N.W.T.'s Michael McLeod, voted in favour, while Nunavut's Hunter Tootoo did not register a vote. 

Bagnell and McLeod's own party, however — the majority Liberals — did not support the bill. 

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Liberal MP Bill Blair said 'the government fully supports the very laudable objectives of the private member's bill,' but said it opened the door to the separate consideration of more than 300 recognised brain disorders. (Adrian Wyld/Canadian Press)

In the House of Commons last week, Bill Blair, parliamentary secretary to Canada's minister of justice, said it would be unfair to single out FASD in the Criminal Code. He argued it could open the door to individual consideration of hundreds of separate disabilities and mental disorders, which could immensely complicate the justice system.

"I invite members to consider that there are more than 300 separate and distinct mental disorders listed in the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders," Blair said. 

"One can only imagine what the Criminal Code would look like if each and every disorder was specifically defined and our courts were given instructions to treat each specific disorder diagnosis differently." 

Bagnell wasn't the first MP to introduce such a bill. His predecessor, Conservative Ryan Leef, proposed similar legislation but he also failed to win the support of his party, then in government.

Another version had previously been put forward by Sean Casey, Liberal MP for Charlottetown. 

The idea has the support of the Canadian Bar Association, and advocates such as the John Howard Society.

Advocates in Yukon share Bagnell's disappointment 

Lillian Sequeira-Duran is a foster parent to a child with FASD. She has also worked with Fetal Alcohol Spectrum Society Yukon (FASSY). 

"It is one of the biggest mistakes that could happen in Canada," she said of Tuesday's vote in Parliament. Like many advocates, she says it is unfair for people with FASD to be held in the general population of inmates. 

"It's not their fault they were born with this disability. It's not a mental health issue, it's a physical brain damage," she said.

Sequeira-Duran says the idea of jail as deterrent and punishment doesn't work for people with FASD because the disorder affects the understanding of cause and effect. 

"They are breaking the law constantly and it's not because they want to. It's because they cannot learn from their actions," she said. "You can bring them to jail, they can stay in jail forever — but they will never learn from the consequences."

She says treatment and counselling is more effective.

"If we walk with them and give them services they need, life can change. And we have proved that many times in the Yukon," she said.

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The Whitehorse Correctional Centre. A study in Yukon found the prevalence of people with FASD in the criminal justice system to be about 18 per cent. The rate in the general population is about one per cent. (CBC)

Liberals propose further study 

Bagnell believes the idea is not dead yet — and another proposal may surface again in the future. 

In the House of Commons last week, Blair called for "a study of a broader assessment power for the purposes of sentencing," which would not be limited to FASD. 

Bagnell says he doesn't oppose that idea, but says it must be recognised that FASD is uniquely linked to criminal justice in Canada.

A study in Yukon found the prevalence of people with FASD in the criminal justice system to be about 18 per cent. The rate in the general population is about one per cent. 

"The huge prevalence of FASD is so much bigger than all the other [mental disorders] put together," Bagnell said.

"FASD is a permanent brain damage and there is a direct link with the justice system. That's why there has been so much emphasis on it."