Judicial interim release

Where there is a history of failing to comply with court orders, the option of greater supports for someone with FASD increases the chance of control and reduces secondary ground concerns that would otherwise be present (R. v. T.J.J., 2011 BCPC 155). Also, the fact that an accused with FASD is particularly vulnerable and subject to abuse in pre-trial custody can influence a release decision (R. v. J.H.B., 2012 ABQB 250).

Mens rea
FASD can affect an individual’s ability to form specific intent, including for offences such as failing to comply with a court order (R. v. Ford, 2006 NLSC 70, R. v. J.D.M., 2006 ABCA 294). As well, an FASD diagnosis is relevant to the court’s quasi-objective assessment of whether an accused facing a charge of sexual assault of a young person took all reasonable steps to ascertain the age of the complainant (R. v. Sinclair, 2013 ABQB 745).

FASD can impact an accused’s ability to represent himself, particularly when evidence of FASD is going to be relevant to his defence. In these circumstances, it is appropriate to make a Rowbotham order for state-funded counsel (R. v. Smart, 2014 ABPC 175).

Similarly, FASD can affect whether a plea is truly informed; if there is doubt about whether the accused properly understood and processed the information provided by counsel, the plea can be struck (R. v. J.R.R., 2012 YKTC 103).

FASD can also be relevant to the defence of duress in that an accused with FASD may be less able to perceive safe avenues of escape (R. v. Faulkner, [2007] N.J. No. 46 (P.C.)).

Below is a list of cases: