FASD & the Justice System

R. v. Smart, 2014 ABPC 175 (Anderson J.)

Three cases considering availability of state-funded legal counsel – Smart was 21 yo Aboriginal accused with FASD – unemployed, no criminal record – AISH (Alberta Income for the Severely Handicapped) of $1588 per month – charged with summary conviction assault but at real risk of jail, denied legal aid – FASD is large factor that contributes to the conclusion that he needs counsel – FASD diagnosis/assessment not in evidence but the fact that courts cannot take judicial notice of FASD increases need for counsel – mens rea is critical issue, medical condition turns concepts like ability to foresee consequences on its head – could not argue case on his own, especially if medical evidence is required – people with FASD are in a bind when courts cannot take judicial notice, are not in a position to raise it and therefore no fair and appropriate accommodation is available.