A turning point for an FASD sufferer

Victoria Elias has more criminal charges than she does years in her life. The 29-year-old has beaten cops, slashed boyfriends and stabbed friends, usually in a drunken rage.

Victoria Elias has more criminal charges than she does years in her life.

The 29-year-old has beaten cops, slashed boyfriends and stabbed friends, usually in a drunken rage.

She’s racked up 49 criminal convictions since she was a teenager.

Last week, a Yukon court could have put five more crimes on her rap sheet – adding to her endless cycle of alcohol abuse, violence and jail time.

Instead, the court accepted that something wasn’t working.

Elias cannot be held criminally responsible for her latest dust-up because of the impaired cognitive abilities that probably stem from Fetal Alcohol Spectrum Disorder, Judge Michael Cozens decided on November 30.

It was the first time a judge sentenced Elias with FASD in mind, said her lawyer Nils Clarke.

“A person who has diminished mental ability through no fault of their own and as a result has a diminished insight into right and wrong ought not to receive the same punishment as someone who does not,” said Clarke.

Elias’ case is now headed to the Yukon Review Board, which normally handles the cases of the mentally ill deemed incapable of being held criminally responsible.

“It may become a bit more of a common phenomena because judiciaries across the country are starting to recognize the fact that there are issues with the insights into right and wrong for people with FASD,” said Clarke.

“Whether it be the medical way with the review board, or a parallel system where there is more of a therapeutic model – all the while recognizing that protection of the public should be the overriding concern.”

A look at Elias’ sentences in the last few years reveals a system that continuously failed her and compromised public safety.

Before her latest descent into violence, Elias was convicted of assault in 2003, 2004 and 2005, and gained a long list of convictions for assaulting police, uttering threats and assaulting others as a youth.

Every time she was caught, she was sentenced to short jail stints – three months at the most.

On October 20 2008, she was partying with friends and drinking heavily.

Someone took her vodka bottle, which prompted her to get angry and look for a weapon.

She found a 10-inch serrated knife.

A woman at the party with whom Elias had never previously fought was cut in the face.

Elias sliced open a large wound that exposed fat and tissue in a one-centimetre wide gap on her cheek, according to court documents.

During that trial, a psychiatric assessment determined she had severe cognitive problems and couldn’t understand the consequences of her actions.

But that didn’t change the substance of her sentence.

In May 2009, a judge decided Elias should only serve four more months in jail after spending more than a year in remand.

At the time, there were signs she couldn’t grasp her predicament.

She was pregnant while in jail and had a due date of July 2009.

Family and Children’s Services would later apprehend the child, according to court documents.

This was after she had already given birth to a child with significant cognitive and physical problems in 2007.

Elias served the rest of her sentence and was released on November 11, 2009.

Within five days, Elias was back in jail.

Her sentence didn’t require any supported living once out of jail.

As soon as she left the Whitehorse Correctional Centre, she drove to Dawson City to meet her common-law spouse.

In Dawson, she told him she wanted booze, but he refused.

She bought some anyway.

An argument began while they were drinking and Elias accused her spouse of cheating.

She threw a cellphone at his head, giving him a black eye.

The next day, during a new argument Elias clawed at her spouse’s face.

She left for the bar after that fight and was arrested.

Without any knowledge of her medical condition, the police treated her like anyone else who gets booked for public intoxication and released her the next morning.

She began drinking and fighting soon after.

She picked up a lamp and slammed it on her spouse’s head.

He likely lost consciousness, but Elias believed he was faking, say court documents.

So she poured hot tea on his chest.

He was able to make it to his bedroom, where he locked himself in.

But she broke down the door and began hitting him with a fire extinguisher.

She was later arrested trying to buy more alcohol.

In February, a second judge sentenced Elias for her latest violent binge.

He faulted her rapid slide into old habits on the lack of assisted living in her last sentence.

On the other hand, he noted some signs of change.

Elias was involved in rehabilitation programs while in remand at the Whitehorse Correctional Centre.

When she was in jail for the previous knife assault, she didn’t care much for self-improvement.

This time though, she told the court she wanted to live sober.

But she would need a strong support system to make it work, said the judge.

It’s not clear from the sentencing document what programs she received once she was free.

She spent three more months in jail, and was then released in the spring subject to probation with strict conditions.

Two months later, she was caught drinking.

And then in August, she broke into an ex-boyfriends’ house and threatened to kill him.

She was arrested for break-and-entry, uttering threats, damaging property and breaking her probation.

In September, another psychological assessment was done.

It confirmed her cognitive limits and emotional issues.

While falling short of a FASD diagnosis, it determined she very likely had prenatal brain damage.

It results in poor decision-making skills and little impulse control.

Her state of mind is compounded by alcohol, which puts her into a kind of psychosis, said Cozens, in the latest decision.

Last week, Elias sat calmly in court wearing a red Canada sweater while Cozens declared she could not be held criminally responsible for her crimes.

The Yukon Review Board, usually a three-person judicial panel, has three months to hear her case.

The hope is Cozens’ decision will lead to a post-incarceration program suited to Elias’ condition, said Clarke.

“I hope the resources can be brought to bear that she has supported independent living and that she has a chance to live in the community in a positive and healthy way,” he said.

A movement is afoot to reform the judicial system for people with FASD.

In 2009, the Yukon government hosted a conference focusing on FASD in the legal system.

Two months ago, Whitehorse hosted a major conference on FASD policy, and the problems FASD sufferers find in the legal system was a hot topic of debate.

There’s no silver bullet, but policy reform likely revolves around providing structure outside of the jailhouse.

“The question is always resources – what resources can be brought to bear,” said Clarke.

On the national stage, the Canadian Bar Association passed a resolution this summer at its annual general meeting calling for legal reform for people with FASD.

The bar association plans to do some heavy lobbying for legal reform this year, said Yukon lawyer Rob Snow, who was elected president of the association at the meeting.

“It’s tough and it can be expensive,” said Clarke.

“But I think from a general sense of fairness that a person (with FASD) arguably ought not to be punished the same as someone who doesn’t have the same challenges through no fault of their own.”

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