The Relevance of Fetal Alcohol Spectrum Disorder and the Criminal Law from Investigation to Sentencing

Abstract

As a permanent form of brain injury, fetal alcohol spectrum disorder (FASD) cannot be cured but only managed. This paper provides an overview of the issues that arise when someone with FASD encounters the criminal justice system. This article starts with a brief overview of the nature and incidence of FASD, followed by results of a survey of reported case law that was conducted in order to determine how frequently judges make reference to FASD in Canadian criminal law jurisprudence. The remainder of the article will examine the growing jurisprudence about FASD as it affects pre-trial, trial, and sentencing stages of the criminal process. Specifically, the relevance of FASD in determining the admissibility of statements from the accused will be examined, as well as how courts should approach the testimony of witnesses with FASD. This article also exams the growing jurisprudence on whether and when people with FASD will be found unfit to stand trial by reason of mental disorder or eligible for the mental disorder defence. Lastly, this essay exams the potential relevance of FASD to the determination of criminal liability, and how sentencing judges have approached FASD. Unfortunately there is no magic legal solution to the sad problem of FASD.

Keywords: fetal alcohol spectrum disorder, FASD, criminal process, mental disorder