Severe FASD has been recognized at least since the 1993 case of R. v. T.J. (see [1999] Y.J. No. 57 (T.C.)) as a ‘disease of the mind’ capable of bringing an individual within the mental disorder provisions of the Criminal Code. It has also widely been recognized as an important mitigating factor at sentencing.

Despite this, caselaw has said that s. 672 cannot be used to order a state-funded FASD assessment, as there is no ability within that section to specify a type or location of assessment (R. v. Gray, 2002 BCSC 1192, although see R. v. R.J.H., 2006 ABQB, where a specific FASD assessment seems to have been ordered, along with numerous other expert reports). Similarly, it is not possible to order a court-funded FASD assessment pursuant to the authority to order a pre-sentence report (s. 721), but it is possible to request that a Code assessment specifically consider and note FASD indicators, in both a pre-sentence report order (R. v. MacKenzie, 2007 BCPC 109) and in a post-sentence appeal situation (Synnuck). If the assessment indicates a need for a more specialized FASD assessment, s. 7 of the Charter becomes implicated and an FASD assessment is a possible s. 24(1) remedy (Grey). Note that in Joamie, the Court found that a simple FASD diagnosis without detail is insufficient for sentencing purposes, as information about specific deficits and the role they played in the offence are necessary.

Section 34 of the YCJA is broader than s. 672.11, and it does allow a court to order an FASD assessment. It also allows an FASD assessment to be ordered for the purpose of sentencing (R. v. T.K., 2006 NUCJ 15).

In the context of a DO/LTO assessment, a government-funded FASD assessment was ordered along with the s. 752.1 expert assessment in R. v. Bunn, 2011 SKQB 21.

Below is a list of cases: