FASD & the Justice System

R. v. E.H.S., 2012 BCPC 450 (Blake J.)

Trial of accused for sexually assaulting his daughter – complainant adopted audio- and videotaped statement of complainant pursuant to s. 715.1 but available for sex – complainant with significantly compromised intellectual capacity, FAS diagnosis - portions of interview which are mystifying if not incomprehensible – intellectual and emotional development lagging well behind chronological age – father and other defence witnesses dispute allegation, credibility essential issue – SCC warnings about need for trial judges not to assess credibility of youthful witnesses with the same yardstick used for adults also apply to youthful and mentally challenged witnesses, but cannot simply assume failings in evidence are irrelevant to credibility assessment – many frailties in evidence, but her limitations also give strength to her testimony, as lacks guile and wit to fabricate and maintain such a story – manner of disclosure also bolsters credibility – no reasonable doubt raised by accused – conviction.