Fetal Alcohol Spectrum Disorder and the Youth Criminal Justice System: A Discussion Paper

2. Fitness to Stand Trial

Section 7 of the Charter provides that the State may deprive an individual of his / her autonomy only in accordance with the principles of fundamental justice. The authority to impose criminal sanctions upon an accused is dependent upon his / her having received a fair trial and his / her having been found guilty. In principle, a trial is not fair if the accused is not present, or is otherwise unable to meaningfully participate in his/her full answer and defence. An accused person who is found to be unable to meaningfully participate in his/her defence, due to mental disorder, is held unfit to stand trial (UST).

Section 141 of the YCJA incorporates the mental disorder provisions of the Criminal Code with the effect that they also apply to youth. Section 2 of the Criminal Code defines "unfit to stand trial":

…unable to on account of mental disorder to conduct a defence at any stage of the proceedings before a verdict is rendered or to instruct counsel to do so, and, in particular, unable on account of mental disorder to

  • a) understand the nature or object of the proceedings
  • b) understand the possible consequences of the proceedings, or
  • c) communicate with counsel

The issue of fitness can be raised by the accused, the Crown or the court.[19] The accused is presumed to be fit[20] and must otherwise be found unfit on the balance of probabilities. [21] According to R. v. Taylor, [22] the standard for fitness is the "limited capacity test", which requires hat the accused has the capacity to understand that (a) he/she is being tried in a court of law and may be subject to punishment, and (b) the ability to get the gist of testimony adduced at trial. Taylor rejected the proposition that a fit accused must have the "analytical capacity" to make choices in his/her best interest. The court held that the limited capacity test balances the objectives of the fitness rule with the constitutional rights of the accused to choose his / her defence, and to be tried within a reasonable time. The test in Taylor was acknowledged by the Supreme Court of Canada in R. v. Whittle. [23]

If an accused person is found unfit, jurisdiction is transferred to the provincial/territorial Review Board. Under the Criminal Code, the accused may be detained in a hospital, [24] or released subject to conditions.[25] The YCJA specifies that youth who are detained in hospital must be held within a designated youth hospital. [26] An unfit youth may be detained until he/she becomes fit to stand trial, until the Crown fails to make its annual [27] prima facie case, or until the charges against the youth are withdrawn or stayed.

A basic issue with respect to the s. 2 definition of unfit to stand trial is whether or not FASD is a "mental disorder". Section 2 defines mental disorder as being "a disease of the mind". Determining what constitutes a disease of the mind is a question of law. [28] In R. v. Cooper, Justice Dickson described the term as embracing

…any illness, disorder or abnormal condition which impairs the human mind and its functioning, excluding, however, self-induced states caused by alcohol or drugs, as well as transitory mental states such as hysteria or concussion. [29]

In Revelle v. R., [30] the Supreme Court of Canada held that organic brain damage, which causes a departure from normal consciousness, is a disease of the mind. Parallels can be drawn between brain damage caused by trauma, and the structural brain abnormalities related to FASD: the intellectual and cognitive deficits associated with FASD have an organic basis, are lifelong, and are not transitory.

In addition, there are several reported cases in which courts have held that FASD is a disease of the mind, and that the accused, on the facts, was unfit to stand trial.

In R. v. D. (W.) [31] Judge Turpel-Lafond refused to accept W.D.'s guilty plea because of her concerns regarding his fitness to stand trial. She ordered a hearing to determine the competency of the youth. In response, the Crown stayed the prosecution. Notwithstanding, the Court ruled on the issue in case the Crown should recommence the proceedings at a later date. The Court accepted expert evidence that W.D., because of FAS related cognitive disabilities, had a poor understanding of the court process and was unable to meaningfully instruct counsel. The Court found W.D. unfit to stand trial.

W.D.'s twin brother was also affected by FAS. In the later case of R. v. D. (W.A.L.)[32] , he was successful in his application to be declared unfit to stand trial. Judge Whelan offered the following explanation for her decision:

[W.A.L.D.]'s difficulties become further apparent when one envisages his discussing his case with his lawyer. To begin with it's expected that he would experience great difficulty taking in the information conveyed, particularly in an area with which he has no previous familiarity. When asked to indicate his wishes, he would be highly dependent intellectually on the lawyer or others and would likely not be able to give instruction, which would be reflective of or in response to the information conveyed. There is a real danger that he would give instructions based solely on an earlier experience. This is so because it is said that he doesn't process information or learn well verbally and is functionally illiterate. He is said to be incapable of formulating a plan from information available to him.

[W.A.L.D.] did not appreciate the roles of the participants in the courtroom and I doubt very much whether he had a sense of the overall purpose and principles governing court proceedings. He would likely have no sense of the adversarial role of a prosecutor, particularly during cross-examination. He has no sense of the consequences of a guilty plea and no concept of the range of sentences available; he understands only those aspects of the justice system that he has experienced, such as remand, an undertaking and probation. [33]

R. v. J. (T.)[34] involved an accused who had been declared unfit to stand trial because of cognitive and intellectual impairments associated with FAS. In contrast to the previous cases, T.J. brought an application to be found fit so that he could face his charges. He was unsuccessful. Expert testimony indicated that T.J. fell within the borderline intellectually impaired range and that his understanding of the judicial process remained "grossly compromised." T.J.'s knowledge of the judicial process was limited to rote answers rather than a genuine understanding. On the issue of whether or not T.J. could meaningfully communicate with counsel the court concluded the following:

While he is able to communicate with counsel, his lack of appreciation of the process and the roles of the major participants, including his own lawyer, severely limits his ability or capacity to instruct his counsel and to make key decisions regarding his defence. In my view, it is not sufficient for an accused to merely understand and communicate the fact that he does not want to go to jail. That alone does not amount to instructing counsel, although I hasten to add that some counsel prefer to have as little interference from their clients as possible. [35]

In sum, there are several reported cases in which the cognitive deficits related to FASD have rendered the accused unfit to stand trial according to the current standard.

The Standing Committee on Justice and Human Rights conducted a review of the mental disorder provisions of the Criminal Code and published a report recommending, among other things, a review of the definition of "unfit to stand trial" to "consider any additional requirements to determine effectively an accused's fitness to stand trial, including a test of real or effective ability to communicate and provide reasonable instructions to counsel."

In response [36] to this report, the government of Canada noted that in setting the threshold for the test there is a need to balance the objectives of the fitness provisions, and (a) the accused's right to choose his defence, (b) the accused's right to be tried within a reasonable time, and (c) the consequences of being found unfit. The federal government expressed its intention to consult with the provinces and to consider the issue further.

The competing rights issues noted by the government are particularly salient in the context of accused persons who have FASD. There are potential Charter violations relating to setting too low a standard for being unfit to stand trial. Youth who have FASD face being chronically unfit, and subject to undefined periods of supervision. This issue will be explored more fully in Part 3, where it is suggested that it would rarely be in an FASD youth's strategic interests to be found unfit to stand trial.

As previously noted, the conviction of unfit accused violates his / her rights under s. 7 the Charter. It follows that youth courts have a positive obligation to identify accused persons who are unfit to stand trial. This duty falls upon all officers of the court, including defence counsel, the Crown, and the Judge. It has been held that the failure of an accused's lawyer to raise the issue of fitness to stand trial, where it is in question, amounts to incompetence. [37] Similarly, where there is reason to doubt the fitness of the accused the judge is obligated to order a hearing.

In R. v. D. (W.), Judge Turpel-Lafond expressed her frustration over the previous failures of the system to recognize the accused's profound and permanent disabilities.

While the Court records indicate that no less than five (5) lawyers dealt with him, counsel never raised the issue of his fitness or W.D.'s ability to instruct them or understand what was happening in the criminal justice system. At the same time, the Crown Prosecutor did not seem to have a file which flagged this youth's disability taking special care to consider how to proceed given his situation. With the information now before the Court, will this happen again? [38]

The complex ethical issues faced by defence counsel, however, should not be discounted. From the accused's point of view, being found UST, offers little advantage. If found unfit, the accused will be under the control of the provincial Review Board for an undetermined amount of time. If the accused eventually becomes fit, he/she may still have to face his/her charges. It is understandable why a defence counsellor, who is committed to protecting a client's liberty, might be motivated to present the client as being fit to stand trial.

As noted above, issues akin to fitness can arise as early as when a youth is first interviewed by the police. It is important to take account of individuals who have intellectual impairments to ensure that statements or waivers that they issue are voluntary.

The Youth Criminal Defence Office in Calgary has begun to issue cards (reproduced below) to clients who have FASD in case they have further contact with the youth criminal justice system.


I have the birth defect Fetal Alcohol Spectrum Disorder, which causes brain damage. If I need assistance, or if you need my cooperation, you should contact the person listed on the back of this card.

Because of this birth defect, I do not understand abstract concepts like legal rights. I could be persuaded to admit to acts that I did not actually commit. I am unable to knowingly waive any of my constitutional rights, including my right to counsel.

Because of my disability, I do not wish to talk with law enforcement officials except in the presence of and after consulting with a lawyer. I do not consent to any search of my person or property.

Obviously, this strategy will only benefit a youth after his / her first contact with the youth criminal justice system.

A related issue is whether or not the Crown should be able to admit pre-trial confessions to meet its prima facie case when an accused who has FASD has been found to be unfit to stand trial. In Whittle, [39] the Supreme Court held that the "limited capacity" test from Taylor applies to the "operating mind" test for determining if a statement is voluntary, and also with respect to determining whether the accused had the mental capacity to exercise their 10(b) right to counsel. Given that the cognitive deficits associated with FASD are likely stable, if a youth is found unfit at trial, issues arise in regard to whether or not prior confessions or waivers were valid.

  • [19] Section 672.23(1), Criminal Code.
  • [20] Section 672.22, Criminal Code.
  • [21] Section 673.23(2), Criminal Code.
  • [22] R. v. Taylor (1992), 77 C.C.C. (3d) 551 (Ont.C.A.).
  • [23] R. v. Whittle, [1994] 2 S.C.R. 914.
  • [24] Section 672.54(c), Criminal Code.
  • [25] Section 672.54(b), Criminal Code.
  • [26] Section 141(11), YCJA.
  • [27] Section 141(10), YCJA.
  • [28] R. v. Cooper, [1980] 1 S.C.R. 1149.
  • [29] Ibid. at para 51.
  • [30] Revelle v. R. (1981), 48 C.C.C. (2d) 267, (S.C.C.).
  • [31] R. v. D. (W.), [2001] S.J. No.70 (Sask.Prov.Ct.) [hereinafter W.D.] .
  • [32] R. v. D. (W. A. L.), [2002] SKPC 38 (Sask.Prov.Ct.).
  • [33] Ibid. at paras 62-63.
  • [34] R. v. J. (T.), [1999] Y.J. No. 57 (Y.Terr.Ct).
  • [35] Ibid. at para 18.
  • [36] Response to the 14th Report of the Standing Committee on Justice and Human Rights: review of the Mental Disorder Provision of the Criminal Code (Ottawa: Department of Justice, 2002) [hereinafter "Government Response"].
  • [37]R. v. Brigham (1992), 79 C.C.C. (3d) 365 (Que. C.A.).
  • [38] W.D., supra note 31 at para 32.
  • [39] R. v. Whittle, [1994] 2 S.C.R. 914.
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