Fetal alcohol spectrum disorder and the youth justice criminal system

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 [...] 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. [...] 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. [...] Accused persons are presumed not to suffer from a mental disorder41 and the party that seeks to prove that the accused is not criminally responsible must do so on the balance of probabilities.42 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. [...] 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.44 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.