Yukon Community Wellness Court Offers Options for Those Afflicted with FASD

Hon. Karen RuddyHon. Karen Ruddy, Judge, Territorial Court of Yukon

Summary: The author describes the creation and work of the Yukon Community Wellness Court, developed to reduce recidivism by providing offenders with therapeutic alternatives tailored to their needs, thereby enhancing the safety of Yukon communities and ensuring the needs of victims are met.



There are strange things done in the midnight sun.... ~ Robert W. Service, The Cremation of Sam McGee

The Yukon Territory is situated in the northwestern corner of Canada, sharing its western border with the state of Alaska. Famous for the Alaska Highway, the Klondike Gold Rush and the literary works of Robert Service and Jack London, the Yukon is home to 37,000 people, of whom 28,000 reside in the capital city of Whitehorse.

To locals and tourists alike, the land of the midnight sun is a place of magic and mystery with wondrous sites and colourful characters. But on the darker side, the Yukon has the highest per capita rate of alcohol consumption in Canada by a distinct margin. This legacy of alcohol abuse manifests itself in a higher than average rate of both diagnosed and suspected instances of FASD, a tragedy which all too often sees those afflicted involved in the criminal justice system both as victims and as offenders.

There is little doubt that traditional criminal justice approaches offer little in the way of solutions. Indeed, one often feels as though dealing with an offender with FASD within the parameters established by the Criminal Code of Canada is akin to the old adage of trying to fit a square peg into a round hole. The judges of the Territorial Court of Yukon have long struggled with this conundrum. In decisions such as R. v. Harper, 2009 YKTC 18, and R. v. Charlie, 2012 YKTC 5, the court has recognized a concept of reduced moral blameworthiness in addressing the principle of proportionality when sentencing offenders with FASD.

Another attempt by the court to deal with offenders with FASD in a manner that fairly recognizes the impact of their disability and offers options tailored to their needs and abilities is the Yukon Community Wellness Court (CWC). Developed in 2007, CWC is a judicially supervised therapeutic program providing treatment and support to offenders struggling with one or more of the following:

  • Alcohol and/or drug addiction
  • Mental health problems
  • Intellectual or cognitive disabilities, including FASD

CWC was developed through a collaborative process involving the territorial court, the Crown (prosecution), legal aid, offender supervision and services, victim services, the RCMP, and the Council of Yukon First Nations. A multi-disciplinary steering committee composed of representatives of each of the founding organizations oversees the ongoing development of the court.

The objectives of CWC include:

  • Reducing the “revolving door” of recidivism by providing offenders with therapeutic alternatives tailored to their needs
  • Enhancing the safety of Yukon communities
  • Ensuring the needs of victims are met

CWC is open to any offender charged with an offence for which an addiction, mental health issue, FASD or other cognitive impairment is a contributing factor in their offending behaviour. Although not offence specific, there are some limitations based on the nature of the offence. Serious offences of violence and of profit-motivated drug trafficking, as well as those that are gang-related, are generally precluded unless there are exceptional circumstances.

Offenders interested in the program undergo a suitability assessment conducted by the CWC treatment team. Team members assess the individual’s suitability and motivation to engage in programming, risk and safety concerns, and—where an offender is in custody—appropriate release terms and placement.

If determined to be suitable, interested participants must enter guilty pleas, agree to be bound by prescribed release conditions, which include intensive supervision, and to participate in random drug and alcohol testing. Once in the program, the CWC treatment team develops an individualized wellness plan for each participant designed to address their unique programming needs. Consideration is also given to what supports are necessary to promote success.

For participants with a diagnosed or suspected FASD, the wellness plan is primarily focussed on providing a structured, supervised and supportive environment with access to cognitively appropriate programming. Recognizing the often overwhelming expectations placed on individuals in the criminal justice system—expectations well beyond the ability of an offender with FASD to understand let alone meet—the Justice Wellness Centre was created, centralizing all reporting and programming in a single location within close proximity to the courthouse. Work is also underway to develop plain language conditions to ensure improved understanding of expectations.

The CWC sits every second Monday. All frontline CWC personnel attend for a pre-court meeting to review each case and are present in court to provide information and recommendations. All participants attend court for regular check-ins with the CWC judge to review performance. As with most therapeutic courts, CWC manages compliance with a program of rewards and sanctions.

On average, full completion of the CWC program ranges from 12–24 months. Upon successful completion, participants are sentenced by the CWC judge. While the same principles of sentencing apply, as prescribed by the criminal code, the application of the sentencing principles is dramatically impacted by the participant’s performance in CWC. Clients who perform well can expect a community-based disposition. Upon completion of the sentence, every effort is made in discharge planning to assist the participant with the transition from the justice system into other appropriate systems and resources.

A critical component of CWC as it relates in particular to participants with FASD is the recognition that success itself must be redefined. There is no cure for FASD. No process will change the FASD offenders’ ability to understand and meet the often abstract expectations of the court. Instead, success for participants with FASD in CWC is about whether the wellness plan and assigned supports are successful in creating an environment that assists the participant with compliance. Even so, struggles with compliance are inevitable. Often, we define success as a situation in which a participant with FASD is not committing substantive criminal offences during their time in the CWC program.

CWC is not without its struggles. In particular, finding appropriate supervised placements for participants with FASD is a constant challenge, but the steering committee continues to look for innovative ways to increase resources and improve options available to make CWC responsive to the complex needs of our participants with FASD. This includes consideration of expanding the CWC approach to other areas, particularly as it relates to individuals with FASD. Many of our participants with FASD came to us first as children in our child protection system, then as offenders in youth court, and then as parents in our child protection system. It is our view that many of the approaches in CWC can be effectively incorporated into these other systems to improve outcomes for individuals with FASD in all of our courts.


Author biography:

Judge Karen Ruddy is a graduate of the University of British Columbia (B.A. (Hons) 1987) and the University of Victoria (LL.B. 1990). After articling with Ratcliff and Company in North Vancouver, Judge Ruddy was called to the BC bar in May 1991. She continued to practice with Ratcliff, as an associate in the area of family law, until relocating to the Yukon in the summer of 1992, where she practiced primarily criminal law. In June of 1996, Judge Ruddy assumed the position of executive director of the Yukon Legal Services Society. In May of 2000, she became a prosecutor with the Department of Justice Canada. In July of 2001, she became the regional director on an acting basis until assuming the position permanently in May of 2002. Judge Ruddy was appointed to the Territorial Court of Yukon on October 29, 2004. During Judge Ruddy’s tenure, she has been actively involved in the domestic violence treatment court and in the creation of the community wellness court.

 

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