Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper
It is a principle of fundamental justice that an accused shall not be found guilty unless he/she possessed a blameworthy state of mind when they committed a prohibited act. According to Knoll,
The minimum necessary mental element for most crimes is knowledge of the circumstances, which make up the actus reus of the crime and foresight or intention with respect to any consequences required to constitute the actus reus of the crime. 
The defence of mental disorder is based upon the notion that some mental illnesses can undermine an individual's ability to form the blameworthy intent that is an essential component of an offence. The defence is set out in s. 16 of the Criminal Code, and applies equally to youth according to s. 141 of the YCJA:
(1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.
Accused persons are presumed not to suffer from a mental disorder  and the party that seeks to prove that the accused is not criminally responsible must do so on the balance of probabilities.  The determination of whether or not the accused was not criminally responsible by reason of mental disorder (NCRMD) occurs only after the guilt of the accused has been established.
As previously discussed, there are case precedents for the proposition that FASD is a disease of the mind, and therefore a mental disorder. The issue of whether or not FASD rendered an accused incapable of appreciating the nature and quality of his/her criminal act, however, is a question of fact; it must be determined on a case-by-case basis.
In R. v. F. (R.),  the youth was unsuccessful in her attempt to raise the defence of mental disorder, on the basis of her having FAS. The accused was facing several summary property charges, and multiple charges for breaching court orders. The Court accepted expert evidence that the accused had FAS. Her IQ fell within the borderline retarded range (3rd percentile). She had severe attention deficits (1st percentile), which were expressed as impulsivity, and poor decision-making ability.
The youth failed to demonstrate, however, that she was unable to appreciate the nature and consequences of her criminal acts. The expert testified that the youth had the capacity to appreciate the immediate consequences of her actions, but lacked the ability to contemplate more remote consequences. In addition, there was evidence to suggest that the youth knew that her actions were against the rules, and that they could get her into trouble. The court held that the standard in this branch of the test is set relatively low, and that the youth's appreciation of the nature and quality of her acts need not be very sophisticated.
With respect to the second branch of the test, the trial Judge was not persuaded that the youth lacked the capacity to appreciate that her actions were morally wrong.  The Court accepted expert testimony that the youth was impulsive, and had a limited ability to reflect upon the rightness or wrongness of her actions. The Court also heard evidence that the youth lacked the capacity to appreciate the social contract aspect of morality, and that her moral reasoning was basically hedonic.
I am very cognizant of the link between the maturity of the individual and the ability to apply moral reasoning when development is delayed such that a satisfactory stage of moral development is not reached by the age at which legal responsibility is presumed, age 12. This is a particularly thorny problem for persons suffering from Fetal Alcohol Spectrum Disorder. 
The judge did not attempt to resolve this issue. Rather, he held that the application must fail because the defence was being used in a blanket fashion for all the crimes that the youth had committed. The Court held that it did not have sufficient evidence concerning the youth's state of mind in relation to each particular offence to be persuaded in the youth's favour.
It is conceivable that a youth with FASD could be genuinely unaware, because of his/her cognitive and intellectual deficits, that his/her behaviour is illegal and offensive. For example, the offence of sexual assault might be particularly problematic for FASD youth to appreciate. An individual who has severe disabilities might not understand that it is harmful and offensive to touch other people without permission. In addition, the actus reus of sexual assault is dependant upon the abstract notion of consent: The same act can constitute an offence where consent is absent, but be legal where consent is expressed. Given the complex nature of sexual assault, s. 16 might provide a viable defence for youth who have significant cognitive and intellectual deficits related to FASD. Indeed, the case of J.(D.) v. Yukon Review Board  involved an accused who had successfully raised a s. 16 defence, based on FASD, in response to the charge of sexual assault.
It should be noted that the current mental disorder provisions do not provide a defence for irresistible impulses. Impulsivity related to FASD will not ground a s. 16 offence. Stuart suggests that that there is a case for widening the existing s. 16 defence to include a test for lack of control caused by mental disorder. 
A potential problem with expanding the defence of mental disorder to include irresistible impulses is that it may make the defence available to persons who have anti-social personality disorder.  Impulsivity is a defining aspect of antisocial personality disorder. It has been estimated that 50-80% of all offenders meet the diagnostic criteria for antisocial personality disorder. 
It has been suggested that FASD can be distinguished from personality disorders, such as antisocial personality disorder, on the grounds that it has an organic basis. This is a questionable assumption. The IOM issued the following statement regarding the brain to behaviour association in the context of FASD.
Behavioural deficits have been described by many clinicians… While such patterns are often reported to be characteristic of affected individuals, they are not always seen… Although a teratogenic aetiology for these patterns is usually assumed, the relationship between specific neurological damage and particular behaviours or patterns of behavioural development has not been well established. 
For most offences, criminal intent can be inferred from the criminal act. It is unlikely that the cognitive, intellectual, or attention deficits associated with FASD could fully negate the mens rea element of general intent offences. A possible exception is in defence to the charge of failing to appear. Knoll  cites a line of cases  in which it was held that an accused who fails to attend court because of forgetfulness ought not to be convicted. There is, however, a line of cases that hold the contrary view, that forgetfulness is not a good defence and that negligence is sufficient to establish the intent requirement for failure to appear. 
Individuals with FASD often have memory deficits. In particular they have been described as having problems with keeping track of time. The fact that an accused has FASD may assist him/her in persuading the Judge that he/she genuinely forgot the court appointment, and that he/she did not have the requisite intent for the offence. This is, perhaps, a narrow area where FASD might be seen by the court as impairing a youth's ability to form criminal intent. It is significant, however, considering that convictions for failing to attend court are very common amongst youth.
Where an accused is charged with an offence, which requires proof of a specific intent, evidence that the accused was suffering from a mental illness or disorder, although falling short of proof of insanity, may nevertheless be evidence to negative the specific intent required for the charged offence. 
To establish crimes that require specific intent, the Crown must prove that the accused was aware of specific circumstances surrounding the offence, or that the accused was aware that specific consequences might flow from their actions. Crimes that require specific intent include the following:  assaulting a peace officer, attempted murder, being unlawfully in a dwelling-house, breaking and entering with intent to commit an indictable offence, breaking and entering and committing an indictable offence (of specific intent), causing bodily harm with intent, murder, offering a bribe, possession of stolen property, public mischief, robbery, and theft.
The intellectual, cognitive and social deficits of an FASD accused might be raised to create a reasonable doubt with respect to his/her awareness of specific preconditions of an offence. Characteristic impulsivity might be raised to argue that the youth did not turn his / her mind to the specific outcomes, basic to some of these offences. The impulsive aspects of FASD will likely only provide a partial defence, however, because the youth will likely remain culpable for lesser and included offences.
There are some offences in the Criminal Code for which the criminal intent element of the offence can be satisfied objectively, on the standard of negligence. Section 219(1) defines criminal negligence.
Every one is criminally negligent who
- in doing anything, or
- in omitting to do anything that it is his duty to do, shows wanton or reckless disregard for the lives or safety of other persons.
According to the majority decision in R. v. Creighton,  the test for negligence is an objective one requiring a marked departure from the standard of care of a reasonable person; individual factors, short of incapacity, are not considered. Stuart documents the Supreme Court's difficulty in deciding upon the appropriate standard for negligence.  In particular, the Court struggled with whether or not the standard should account for the capabilities of the accused person. The case of a youth who has FASD represents an extreme example, which strains the notion that it is fair to expect the same level of conduct from all people.
Nevertheless, the test does make some allowances. First, the departure from the expected standard of conduct must be gross. Second, the "incapacity to appreciate the risk attendant on one's conduct" provides a defence to the charge of criminal negligence. This may afford youth with FASD adequate protection. Consider an example, provided by the expert in R. v. F. (R.),  as summarised by Judge Whelan:
After some further discussion Dr. Nanson agreed that she could understand that if she punches someone she may hurt them or if she throws a rock at a window it may break but she would not be able to abstract for instance that there may be someone inside a burning building who may be hurt.
According to this example, if the accused has been charged with criminal negligence causing death consequent to her setting an apartment building on fire her deficits related to FASD could have provided her with a defence.
-  P.J. Knoll Criminal Law Defences (Toronto: Carswell, 1988).
-  Section 16.(2), Criminal Code.
-  Section 16.(3), Criminal Code.
-  R. v. F. (R.),  SKPC 137 (Sask.Prov.Ct.) [herinafter R.F.].
-  That is, contrary to the prevailing standards of society: R. v. Chaulk,  3 S.C.R. 1303.
-  R.F., supra note 43 para 84.
-  J.(D.) v. Yukon Review Board,  YTSC 513 (Y.Sup.Ct.).
-  See D. Stuart., Canadian Criminal Law. A Treatise (3rd ed.) (Toronto: Carswell, 1996) at 376.
-  American Psychiatric Association, The Diagnostic and Statistical Manual of Mental Disorders (DSM-IV) Fourth Edition. (Washington: APA, 1999).
-  T.A. Widiger, E. Corbitt, "Antisocial personality disorder.", in W.J. Livesley, ed. The DSM-IV personality disorders. (New York: Guilford, 1995) at 103.
-  IOM, supra note 5 at 159-160.
-  Knoll, supra note 40 at para 230.
-  R. v. Neal. (1982), 67 C.C.C. (2d) 92 (Ont.Co.Ct.); R. v. Stuart (1981), 58 C.C.C. (2d) 203 (B.C.S.C.).
-  R. v. Preshaw (1976), 31 C.C.C. (2d) 456 (Ont.Prov.Ct); R. v. Ludlow (1999) 136 C.C.C. (3d) 460 (B.C.C.A.).
-  Knoll, supra note 40 at para 100.
-  Knoll, supra note 40 at para 189.
-  Section 220, Criminal Code.
-  Section 221, Criminal Code.
-  R. v. Creighton,  3 S.C.R. 3.
-  Stuart, supra note 47.
-  R.F., supra note 43.
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