Because of the nature of the disorder, individuals with FASD are particularly vulnerable in the context of interrogations and Mr. Big sting operations. Some courts have found that police need to go further than they ordinarily would to ensure that an accused understands his right to counsel (R. v. Sawchuk, [1997] M.J. No. 186 (QB), R. v. Henry, [1996] Y.J. No. 39 (SC)). As well, conditions that would not be oppressive to someone without FASD can render a confession involuntary when the accused is affected (R. v. Bohemier, 2002 MBQB 198, R. v. S.L.S., 1999 ABCA 41). In the three reported cases where the subject of a Mr. Big sting was diagnosed with FASD, the confessions obtained in that context were excluded (R. v. Crane Chief, [2002] A.J. No. 1706 (QB), R. v. N.R.R., 2013 ABQB 288, R. v. J.C.D., 2015 MBQB 18, R. v. J.J.G., 2015 BCSC 77)

See also R. v. Trott, 2012 BCPC 174 where accused’s reduced level of sophistication was a factor contributing to an exacerbated power imbalance and the finding of an arbitrary detention. Similarly in J.C.D., where a consent to search was invalidated because young person’s limited intellectual ability meant that there was an element of compulsion.

Below is a list of cases: