The Yukon justice system is showing signs of change in recognizing the effects of fetal alcohol spectrum disorder.
In two separate decisions, the territorial court and the territory's Community Wellness Court recently agreed to let two men with FASD remain in supportive housing instead of going to jail.
The precedents are being applauded by advocates who say the criminal justice system is no place for people with the condition, which affects behaviour, foresight and emotions.
"The lawyers and judges, knowing that these individuals were housed in this facility, allowed these individuals to stay out of prison," says Sam Mutiwekuziwa, a project manager at Options for Independence.
Instead of seeing his clients brought to jail, he'll continue working with the two men at Dun Kenji Ku (People's Place) a supportive housing residence for adults with FASD in Whitehorse.
'Free to go to work'
Dun Kenji Ku, launched in 2014, is not a halfway house. The residence offers people with FASD a supervised place to live in independent apartment-style units.
The two men previously lived at the residence and are described as having severe FASD. However recent criminal charges would have led to incarceration.
Instead they have a curfew but can walk freely in Whitehorse during the day. They also have jobs provided through the Yukon Association for Community Living.
"They're free to go to work during the day, participate fully in the community, be useful citizens. Which for the most part they are," Mutiwekuzia says.
Applicants to Community Wellness Court are only considered if they plead guilty and show "significant motivation to start working on serious problem areas in their life," such as addictions.
Individuals who have committed offences causing death, "serious" violence or sexual assault, gang-related crime, drug trafficking or crimes against children, can't participate in the voluntary court.
The wellness court is not releasing the name of the man or the crimes he committed; details of the cases that go through the wellness court are not public.
One of the men committed a sexual offence, which Yukon's chief federal prosecutor describes as "at the lower end of culpability."
Jail 'entrenches negative behaviours'
A recent study by the Yukon government found that 17.5 per cent of people in Yukon's justice system have FASD. This compares to about one per cent of the general population in Canada who have FASD.
Mutiwekuziwa says the court system often doesn't recognize how people with FASD function, which leads to a cycle of incarceration.
"For the most part, what's unfortunate about adults with FASD, is that they commit some offence, maybe some minor offence, usually alcohol-related or drug-related assault, breaking and entering, sexual assault… Because of their impulsivity and the disability itself, they cannot identify what's acceptable sometimes," he says.
He adds that people with FASD often don't abide by court conditions, such as abstaining from alcohol or remembering to meet a parole officer.
"They have conditions they need to observe. Find employment, go to counselling or alcohol treatment," he says. "[But] there has to be a policy to make that effective. We cannot expect these individuals to do this by themselves."
Colette Acheson, executive director at the Yukon Association for Community Living, agrees people with FASD are not well-served in jail, partly because they can be exploited by other inmates.
"Often people come out of a period of time in jail with more entrenched negative behaviours," she says.
Acheson adds that people with FASD have a strong need for social acceptance and a limited capacity to moderate their impulses or understand consequences. This can often lead to membership in gangs.
"It's tough for anyone but I think particularly, some people with FASD who are so eager to have those friends and be invited into those social experiences that they'll do almost anything," she says.
Chief prosecutor supports decision
John Phelps, the chief federal prosecutor in Yukon, says the Community Wellness Court deals mainly with "lower-end offenders" who are often facing jail time after an accumulation of charges.
He supports the recent arrangement with Dun Kenji Ku, saying the wellness court agreed to release the man into the facility because it's a "stable environment to live in."
"We have very few housing options for offenders generally in Yukon, particularly the offenders that we see rotating through the court system on a regular basis. Often they end up in custody because they can't get bail, and they can't get bail because they don't have a stable residency," Phelps says.
One option is a halfway house operated by the Salvation Army, but "it can be a problem for lower-functioning individuals."
Phelps says it lacks the supervision they need, and they'll be placed with people that could lead them astray.
"The mandate is to reduce recidivism and take these individuals and hopefully remove them from the criminal justice system completely. In other words, to assist them in life so hopefully they lead a positive life," he says.
"Individuals with FASD, absolutely we appreciate that jail is not the answer."
A earlier version of this story said the Yukon Community Wellness Court had made two decisions allowing men to avoid jail time. In fact, one decision was made there, the other was made by the Yukon territorial court.Jul 11, 2016 1:11 PM CT