Fetal Alcohol Spectrum Disorder

"Fetal alcohol spectrum disorder" (FASD) is a non-clinical umbrella term that refers to a range of cognitive deficits associated with disabilities incurred when a mother uses alcohol during her pregnancy. Such disabilities are permanent and can result in a range of symptoms including poor memory, impulsiveness, and inability to appreciate fully the consequences of one's actions, and being easily influenced and even abused by others. In only some cases will FASD produce physical facial features such as thin upper lips, short eye slits and slightly recessed jaw that have been associated with fetal alcohol syndrome (FAS). Also falling within FASD are diagnoses of Fetal Alcohol Effects (FAE), partial Fetal Alcohol Syndrome, Alcohol-Related Neurodevelopmental Disorder (ARND), and Alcohol-Related Birth Defects (ARBD).

The exact incidence of FASD in the Canadian population is difficult to determine.

A 1996 study found . births with FAS per 1000 live births but also estimated that alcohol related disorders could be 3 to 5 times higher than FAS. Other community studies have produced rates as high as 1 in 4 births with more recent estimates between 1 and 2 per 1000 live births. It is clear from these estimates that FASD is a serious problem in Canada. It is thus not surprising that references to FASD in Canadian reported case law have been growing. Judges are starting to grapple with the problems presented by FASD throughout the criminal law from investigation to sentencing.

The cognitive deficits associated with fetal alcohol spectrum disorder present a fundamental challenge to the standard assumptions of the Canadian criminal justice system. The justice system is premised on assumptions that people act in a voluntary manner that is determined by free will and that they can make informed and voluntary choices both with respect to the exercise of their rights and the decision to commit crimes. Such assumptions inform our approach to ensuring fairness in the investigative process with respect to the decision whether to talk to the police or to lawyers. At the trial stage, the accused is presumed fit to stand trial and not to suffer from a mental disorder that would exempt him or her from criminal responsibility. Exceptions have generally only been made under the mental disorder defence for extreme cognitive impairments that deprive the accused of the ability to understand the proceedings or to appreciate the consequences or wrongfulness of his or her actions. Contrary to the reality of the permanent brain damage caused by FASD, it is also assumed that mental disorders can be treated so that a person will eventually either be found fit to stand trial or to present no substantial danger to the public and therefore be safe to release.

The Crown has to establish some form of fault for criminal offences, but even with respect to subjective fault the focus is on whether the accused was aware of the prohibited risks of his or her conduct and not why he or she acted in such a manner. With respect to offences based on negligence ...