Neuroscience in Criminal Law

This work lies at the intersection of law and neuroscience. Its objective is to assess the extent to which the protection of fundamental freedoms and rights in Canada is informed by neuroscientific knowledge. It seeks to highlight the practical application of an emerging ‘neurolaw’ to reparative claims brought before the courts. We analyse the various references to neuroscientific knowledge or evidence in judicial and administrative case law to determine whether brain-related data can support the claims of parties who believe their rights and freedoms have been infringed. In this regard, three key areas of judicial review emerge: the imposition of cruel and unusual punishment on adolescent offenders, the capacity to consent, and the decriminalization of the possession of certain psychoactive substances. The prediction of recidivism risk using certain neurological markers is also examined. This analysis is all the more necessary given that, despite the enthusiasm generated by the emergence of a ‘novel’ neuroscientific perspective in contemporary law, existing analyses of ‘neurolaw’ have primarily focused on the field of criminal and penal justice. We hope this work contributes to reconciling legal and neuroscientific discourse.