R. v. Smarch, 2014 YKTC 51 (Cozens J.)
DO application for 28 yo Aboriginal offender, highly likely to have FASD and Anti-Social Personality Disorder – lacks capacity to maintain awareness that judgment, cognitive skills and interpersonal skills are impaired and that sexual and social behaviours are inappropriate – FASD set up the conditions promoting the development of ASPD, likely to encounter potential victims in future and high risk of sexual offending - brain impacts and abuse and neglect mean that he does not have inherent capacity and training to interrupt the process of acting on an urge – has capacity to change within his abilities – demonstrated failure control sexual impulses, high risk to reoffend and risk not reduced by programming since commission of offence, reoffending will cause injury, pain or other evil – no option but to make DO designation – Gladue factors relevant to consideration of what appropriate sentence is after DO finding – predicate offence does not attract a penitentiary sentence, especially given time spent in remand for which only 1:1 credit is available– LTSO not required and 3 year probation order can satisfy risk of reoffending given community programming and supports