FASD should be considered at every stage of the criminal process to guard against inadvertent waiver of rights (Charter of Rights and Freedoms, S. 10(b)), false confession (False Confession), and the vulnerability of persons with FASD to bullying, abuse and coercion by others (Kelly 2003). Appropriate representation at trial will mean paying special attention to the accused’s possible inability to understand the consequences of his or her actions (Mens Rea), explain those actions (Evidentiary Challenges) assist in his or her defence (Fitness/Mental Disorder), or understand the concept of plea bargaining.
With the passage of time between the offence and sentencing, an accused person with FASD has a heightened risk of failure to appear. He or she may also fail to comply with bail conditions, and so may complicate his/her defence or the possibility of diversion and attract additional charges.
Once the proceedings reach sentencing, section 718.1 of the Criminal Code instructs the court to take into account the degree of responsibility of the offender. (Criminal Code of Canada, RSC 1985, c. C-46).