Court – Bail and pre-trial


From start to finish, bail proceedings and conditions can pose challenges for a person with FASD, with a risk of compounding the charges against them.

Difficulty with memory and time, suggestibility, and impulsivity may be a recipe for breach of bail conditions. For example, the following typical bail requirements can be very difficult for a person with FASD to adhere to:

  • complying with requirements to remain within a certain area
  • abstaining from communicating with specific people
  • reporting to police at specified times
  • abstaining from consuming alcohol or drugs
  • following a curfew

The longer someone remains released with conditions to follow, the greater their vulnerabilities.  

An accused with FASD will need a reliable surety who understands the accused’s disabilities and is able to provide close and comprehensive supervision. You should ensure that the surety fully grasps this level of responsibility.

If a breach does occur, a judge may want to consider how the offender’s FASD may be relevant to that breach, and devise more realistic conditions, rather than punishing the person with FASD for the breach.

Pre-trial - Fitness to stand trial

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”.
  • The mental disorder test

Most judges have accepted that FASD is a “mental disorder”. But this does not mean that all people with FASD are automatically unfit to stand trial. The option of whether to ask for a determination that your client with FASD is unfit should be considered very carefully.

Research has suggested 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.”    

Research has shown that most cases where the accused has been found unfit to stand trial involved defendants with low IQs. However, not everyone with FASD has a low IQ.  People with FASD “can have a normal IQ but have significant impairments in memory, judgment, and adaptive living skills.” They may actually have a high IQ, but functional testing will show a capacity that is much lower.

You should also consider carefully other risks associated with a determination of fitness to stand trial, when working with someone with FASD. For example, this might not automatically lead to a stay of proceedings. Also, fitness or mental disorder defences may expose the accused to the risk of indeterminate detention or conditions which could worsen their condition or set them up to fail. [LINK TO: Roach, K. and Bailey, A. 2009].