This chapter presents the courts’ response to FASD, consisting of an overview of the case law regarding the Criminal Code provisions on mental disorders in cases where the accused has FASD, and the effect of an FASD diagnosis on sentencing.

4.1 EFFECT OF AN FASD DIAGNOSIS ON CRIMINAL CODE PROVISIONS REGARDING MENTAL DISORDERS

4.1.1 Unfit to Stand Trial

Part XX.1 of the Code establishes the regime governing the treatment of people who have been found unfit to stand trial or not criminally responsible on account of mental disorder (ss. 672.1 to 672.95). This comprehensive regime was codified in 1992.[120]

The court can order an assessment of the mental condition of the accused at any stage of the proceedings if it has reasonable grounds to believe that the assessment is necessary to determine whether the person has a mental disorder or is unfit to stand trial.[121] If the accused is found unfit to stand trial, the court must hold an inquiry no later than two years after this verdict and every two years thereafter to determine whether sufficient evidence can be adduced at that time to put the accused on trial. In the interim, the accused who has been deemed unfit to stand trial can be detained in a hospital.[122]

The issue of whether or not FASD renders an accused incapable of appreciating the nature and quality of his or her acts is a question of fact on a case by case basis. It appears that in a number of cases, the courts have recognized that an accused can be declared unfit to stand trial because of cognitive and intellectual impairments associated with FASD.[123]

4.1.2 Mental Disorder Defence

Section 16 of the Code stipulates that everyone is presumed to be of sound mind. The burden of proof that an accused was suffering from a mental disorder and is therefore exempt from criminal responsibility is on the party that raises the issue.

If the judge or jury finds that the accused did commit the offence in question but was suffering from a mental disorder at the time and is therefore exempt from criminal responsibility, a verdict of not criminally responsible on account of mental disorder must be rendered.[124]

This verdict is different from an acquittal. At this stage, the court or a review board takes into account the safety of the public – which is the paramount consideration – and the mental condition, social reintegration and other needs of the accused, and makes one of the following dispositions: (i) orders that the accused be discharged absolutely if the court or the review board believes the accused is not a significant threat to public safety; (ii) orders that the accused be discharged subject to conditions; or (iii) orders the accused to be detained in custody in a hospital.[125]

The defence provided for in section 16 applies only to cases where the mental disorder is so severe that it rendered the individual incapable of appreciating the nature and quality of the act or of knowing that it was wrong. According to Kent Roach and Andrea Bailey’s analysis, although FASD has been recognized by the courts as a mental disorder, “it has not been held to be severe enough to prevent accused from appreciating the physical consequences of their actions or knowing that they are wrong.”[126] This view was supported by Professor Pei during her appearance before the Committee:

What we do know and understand about the brain is that while understanding may be reduced or diminished, and while there are components of the brain, like inhibitory control and self-regulation, that may be operating at a much lower level developmentally than we would like for an adult, a lot of these individuals do understand right and wrong. Sometimes the NCR, the not criminally responsible, system actually provides a level of treatment intensity that is not an appropriate fit.

We are faced with a system where you may be putting somebody with an FASD who understands right and wrong but can't inhibit or control his or her behaviour with somebody who has experienced a schizophrenic episode where they absolutely had no idea of what reality was or was not.[127]

Courts may accept this type of defence for persons with FASD,[128] possibly because they do not often have the expertise to recognize signs of FASD or simply do not have timely access to qualified medical practitioners able to conduct a proper assessment and make a formal diagnosis.[129] As explained by Dr. Andrew, “[w]hen I look at the impairments in brain function that I can assess every day in clinic, most of the individuals who get diagnosed with FASD would qualify for that level of impairment [under section 16], but they do need the in-depth assessment.”[130]

As Professor Pei noted in her brief, “[a]lthough some judges have begun to consider the impact of FASD in their sentencing decisions, formal assessments for the disorder are rarely undertaken and this consideration holds more weight for juvenile as opposed to adult offenders, who are deemed less capable of rehabilitation.”[131] In a study of 107 court cases in which FASD was suspected, a formal diagnosis was made in only 32% of the cases.[132] In light of an FASD diagnosis, the Judicial Committee of the Privy Council recently decided to reject the confession of a New Zealand man made in his youth and to quash his conviction more than 20 years after he had twice been convicted of murder.[133]

In summary, although Canadian courts have defined mental illness and mental disorders rather broadly to include individuals with FASD,[134] the Criminal Code provisions pertaining to mental disorders were not clearly designed with FASD in mind.[135] There is no consensus on that question because the courts rarely accept FASD as a defence of not criminally responsible.

4.2 EFFECT OF AN FASD DIAGNOSIS ON SENTENCING

4.2.1 Sentencing Principles

The Code’s main sentencing provisions are set out in Part XXIII, particularly sections 718 to 718.2. The fundamental sentencing principle is proportionality: a sentence imposed by a court must be proportional to the gravity of the offence and the degree of responsibility of the offender.

The purposes of sentencing include denouncing unlawful conduct and deterring the offender and other persons from committing offences. As a number of witnesses noted, general or specific deterrence may prove ineffective for some individuals with FASD, who are unable to learn from their mistakes.

The remaining sentencing objectives are to separate offenders from society, where necessary; assist in rehabilitating offenders; provide reparations for harm done to victims or to the community; and promote a sense of responsibility in offenders and acknowledgement of the harm done to victims and the community.

Courts must also take into account any aggravating or mitigating circumstances, the principle that similar offences should have similar sentences, the obligation to avoid unduly long or harsh consecutive sentences, and the obligation to consider less restrictive sentences and all available sanctions other than imprisonment that are reasonable in the circumstances before imposing a prison sentence, particularly for Aboriginal offenders.

Most court decisions that refer to FASD raise sentencing-related issues. Overall, these decisions are contradictory and divided on the way to handle the disorder.[136] In addition, according to Jonathan Rudin, courts hear a lot of misinformation about FASD.[137]

A 2008 analysis of court decisions by Kent Roach and Andrea Bailey showed that the courts’ recognition of FASD is not always used as a mitigating factor in sentencing:

The recognition of FASD by the court sometimes works to the advantage of the accused, but sometimes does not. For example, FASD sometimes is used as a mitigating factor in sentencing, but it has also been used as an aggravating factor with respect to concerns about future danger and the need for incapacitation or long term and intense supervision.[138]

Moreover, an analysis of court decisions in British Columbia, Saskatchewan and Ontario appears to show that judges often – in about 74% of cases – choose to impose traditional prison sentences in confirmed cases of severe FASD. According to the author of this analysis, these types of sentences are counterproductive for the purposes of rehabilitation and reducing recidivism in such cases.[139] The author of this analysis also argues the following:

Punishment is not an effective deterrent to those who struggle from a serious cognitive impairment because many are unable to understand the consequences of their actions. This is why so many criminals who have FASD or ADHD are repeat offenders.[140]

Making reference to section 718.1 of the Code, which sets out the fundamental principle of sentence proportionality, the Ontario Court of Justice has concluded that “to punish behaviour which results from a clinically recognized disability runs contrary to the principles of criminal law, certainly where treatment is available.”[141]

Moreover, according to the Court of Appeal for British Columbia, it is important to consider the fact that “persons with a condition such as FASD generally do poorly in prison and are often victimized by other inmates.”[142] Witnesses such as Jonathan Rudin note that one of the reasons for the high number of prison sentences in these cases may be judges’ perceptions that prison gives offenders with FASD the structured environment necessary to protect the public.[143] Given the general lack of targeted programs in the community and in provincial prisons, judges sometimes consider a federal sentence the best solution for offenders with FASD.[144]

In addition to imposing a prison sentence, courts sometimes hear applications to have accused with FASD declared dangerous offenders, as they can pose a high risk of reoffending.[145] Faced with such an application in R. v. Mumford, the Ontario Superior Court of Justice instead decided to order a long-term offender designation.[146] The Court believed that the risk of reoffending could be controlled in the community and therefore imposed a prison sentence followed by long-term supervision.

In conclusion, courts asked to sentence offenders with FASD often face a number of sizable challenges. These challenges were summarized by the Youth Justice Court of Yukon in R. v. J. (E.L.) in a clear manner and are emblematic of the problems faced by courts across Canada:

[A] case such as this stands inconveniently in the way of those who see a neat, simple and obvious solution to the problem of youth crime, that being, of course, to get some judges who will impose really tough sentences as a deterrent. Those critics should read the psychological reports on this youth. They will quickly see that things are not quite so simple.

…[A] case such as this clearly points out the inadequacy of the tools provided to deal with such offenders. In short, the options available to the Court reduce themselves to locking this youth up in jail or returning him to the community where there are few supports, and where inevitably, he will cause further disruption, and where he presents a significant danger to himself and others…. Putting someone in jail is a punishment, it is not therapy, and it is not supposed to be a means of managing those with mental deficits.

I also want to emphasize that the long term management of Mr. J. remains a concern, but is beyond the reach of the criminal courts. It will require the earnest and continuing effort of the Health and Social Service agencies charged with dealing with the case.[147]