There is much debate regarding the application of the Canadian doctrines of fitness to stand trial in cases where the accused has FASD. At issue are:
- whether FASD is a “mental disorder” within the meaning of the defence; and
- whether a defendant with FASD meets or falls below the threshold established as the “limited capacity test”.
Most judges have accepted that FASD is a mental disorder, and according to Roach and Bailey most cases where the accused has been found unfit to stand trial, involved defendants with low IQs. (Roach, K. and Bailey, A. 2009). However, not everyone with FASD has a low IQ. (
Roach and Bailey also suggest that the mental disorder defence will not be available for most people with FASD, “because of its requirement that the mental disorder render the accused unable to appreciate the physical consequences of his or her actions or know that they are wrong.” (Roach, K. and Bailey, A. 2009).
There are risks associated with a determination of fitness to stand trial. Such a determination does not necessarily lead to a stay of proceedings. Also, fitness or mental disorder defences may expose the accused to the risk of indeterminate detention or conditions. (Roach, K. and Bailey, A. 2009). Consideration of the risks is important.