N.W.T. man with brain damage falling 'through the cracks' in jail, says lawyer

A man sentenced to 30 months for sexual assault who has brain damage may not benefit from his time behind bars — and this isn't an atypical case, according to experts.

Frankie Eyakfwo was sentenced to nine months after time served for sexually assaulting a woman in 2015. The 29-year-old pleaded guilty after the incident in Fort Smith.

During sentencing, Justice Shannon Smallwood said Eaykfwo has "major intellectual deficits." Eyakfwo had untreated meningitis as a baby, which resulted in brain atrophy.

He shows some of the same characteristics as people with fetal alcohol spectrum disorder (FASD), though according to Smallwood, "it is not known if that is the result of the brain atrophy that he suffered or from the use of alcohol by his mother during pregnancy or some combination of both."

When Smallwood gave her sentence she said," I am concerned that the sentence I am about to impose is not sufficient."

This uncertainty stems from a lack of programming available to Eyakfwo at the North Slave Correctional Centre (NSCC).

Eyakfwo's lawyer, Peter Harte, said he had concerns that the programming at NSCC wouldn't help reform Eyakfwo. The court requested an assessment from NSCC.

It found that Eyakfwo may "struggle in any program that we offer at NSCC."

Part of the problem stemmed from Eyakfwo's limited reading ability. He was unable to complete the Canadian Adult Reading Assessment, and therefore, he "does not possess the academic skills to participate in any core programming at the NSCC."

Harte was not surprised at this finding. What did surprise him was the amount of time it took to get Eyakfwo's assessment — one month.

In 2015, the Auditor General released a report saying one issue in the territory's justice system was a lack of prompt assessment.

"In theory, it should have already been known — if the auditor general's recommendation had been adopted — they should have been able to say already, 'This is what we've got.'"

Harte recognizes that the staff at NSCC "are working pretty hard to try and do right by the people... but the resources that they have at times are extremely limited."

While Eyakfwo was in custody, he tried to attend the Poundmaker's Lodge for treatment, but because of his cognitive limitations, he couldn't be placed there.

We will not be able to always meet the needs of every offender with multiple complex needs.- Sue Glowach, spokesperson for N.W.T. Department of Justice

Harte said the sentence was "discouraging." Many of his clients need treatment for addictions and trauma, and if that treatment isn't available, "they're just going to find themselves on an endless cycle of doing life in prison on the installment plan."

Harte wanted to remind the court that Eyakfwo's "criminal record is not the start and end of who he is."

He submitted Eyakfwo's drawings, one of which Eyakfwo gave to the victim of the sexual assault as an apology.

Eyakfwo 'doesn't stand out'

According to David Milward, an associate law professor at the University of Victoria, early assessment can be very important.

"There needs to be more early screening about what the person's issues are and what the needs might be."

Milward said Eyakfwo's case "doesn't stand out to me as particularly unusual… Plenty of other people with these kind of issues kind of fall through the cracks."

He said similar situations are seen across the country. In an article he published in 2014, he looked at ways people with FASD could be rehabilitated. He wanted to come up with alternatives to locking people up in jail. One thing he said could work is more probation and conditional sentencing.

"It's important for a person with FASD to sort of have greater structure in their lives," said Milward.

In Eyafwko's cognitive assessment, structure was also viewed as key. The psychologist reported that Eyakfwo requires "a very structured and disciplined living environment," "regular supervision," and "immediate feedback consequences for inappropriate actions."

Are there solutions?

Milward said some solutions could be expanding the educational and rehabilitative services available, or enlarging or creating separate facilities to better accommodate people with disabilities.

Harte suggested an in-depth guardianship program. It would involve the government stepping in and placing people in appropriate facilities, when they are at a lower risk of re-offending.

Kim Schofield, assistant deputy minister and solicitor general of the territorial government's Department of Justice, said in an email that because the N.W.T. is a small jurisdiction, "we will not be able to always meet the needs of every offender with multiple complex needs."

And all offenders are assessed for programming needs.

"Offenders who are unable to attend criminogenic programming due to cognitive ability may be considered for a program equivalency plan. The case manager, in consultation with a correctional psychologist, may establish program equivalencies for offenders on a case by case basis."

Glowach said the department would not speak to specific cases.

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