COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Manitowabi, 2014 ONCA 301

DATE: 20140422

DOCKET: C52295

Doherty, Goudge and Hourigan JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Dakota Manitowabi

Appellant

Michael Lacy, for the appellant

Jennifer Woollcombe and Michael Fawcett, for the respondent

Heard: February 12, 2014

On appeal from the conviction entered by Justice Robert G. S. Del Frate of the Superior Court of Justice, sitting without a jury, on January 13, 2009, and from the sentence imposed on July 17, 2009.

Doherty J.A.:

I

overview

[1] The appellant was charged with first degree murder. He was 16 years old at the time of the alleged offence. The trial proceeded before a Superior Court judge sitting in Youth Justice Court without a jury.

[2] The appellant admitted that he stabbed and killed Mr. Cory Roy. The Crown argued that the stabbing was a planned and deliberate murder. The appellant, who testified, advanced several defences, including self-defence and accident. However, on the evidence, the crucial question was whether the Crown had proved that the appellant had the state of mind required for murder, and specifically whether the Crown had proved that the appellant foresaw the likelihood that Mr. Roy would die as a consequence of the stabbing as required by s. 229(a)(ii) of the Criminal Code.

[3] The trial judge acquitted the appellant on the charge of first degree murder but convicted him of the included offence of second degree murder. The Crown successfully applied to have the appellant, who was almost 20 years old at the time of sentencing, sentenced as an adult. The trial judge imposed the mandatory adult sentence of life imprisonment without eligibility for parole for seven years. After conducting a placement hearing, the trial judge ordered that the appellant serve his sentence in a federal penitentiary.

[4] The appellant appeals conviction and sentence. On the conviction appeal, counsel alleged various errors in the trial judge’s reasons. However, in oral argument, counsel focused almost exclusively on the application to admit fresh evidence. Counsel submitted that the fresh evidence offered on appeal established that the appellant suffered from Fetal Alcohol Spectrum Disorder (“FASD”) at the time of the homicide. Counsel further argued that FASD is a neurodevelopmental disorder that can impair one’s ability to foresee the consequences of one’s actions. Counsel contended that the evidence of the appellant’s FASD, combined with the evidence led at trial that was relevant to his mental state, could reasonably have left the trial judge with a doubt as to whether the Crown had proved that the appellant foresaw death as the probable consequence of his actions. Counsel argued that a new trial is necessary so that the appellant can have an opportunity to put the evidence relating to his FASD before a trial judge.

[5] Counsel also relies on the fresh evidence on the sentence appeal. He submitted that if that evidence is not admissible on the conviction appeal, it should be received on the sentence appeal. Counsel argued that the fresh evidence, combined with the extensive evidentiary record at the sentencing hearing, establishes that the appellant should have received a youth sentence rather than the adult sentence imposed by the trial judge.

[6] I would dismiss the conviction appeal. I see no error in the trial judge’s reasons. The fresh evidence establishes that the appellant suffers from FASD and that FASD is relevant to the state of mind inquiry. However, the fresh evidence fails to provide a basis upon which a trier of fact could reasonably conclude that the appellant’s FASD had an effect on his understanding of the probable consequences of stabbing the victim.

[7] I would also dismiss the sentence appeal. The fresh evidence adds little, if anything, to the information about the appellant that was available to the trial judge. On that information, the sentence imposed was appropriate.

II

the evidence at trial

[8] Cory Roy and his wife were entertaining family at their home on the Wikwemikong reserve on Manitoulin Island. Mr. Roy’s baby boy was to be baptised later that week and the family had gathered to celebrate the occasion. The partygoers were drinking and socializing inside the house, on the outdoor patio and in the driveway.

[9] Sometime during the evening, probably after 9:30 p.m., the appellant appeared at the party. He had not been invited and did not know anyone there. The appellant socialized with several people. He was friendly and nothing untoward happened. Shortly after his arrival, Mr. Roy spoke to the appellant and asked him to leave, indicating that it was a family gathering. He suggested that the appellant could return the next week.

[10] The appellant did not leave but continued to talk to some of the guests. Mr. Roy went back into the house. A short time later, the appellant left the party to talk to five or six teenagers who were walking on the road in front of the house. He returned to the party about five minutes later. Mr. Roy again asked the appellant to leave and suggested he join his friends on the road.

[11] At least one guest at the party testified that the appellant’s demeanour changed when he returned from visiting his friends. He seemed nervous and was acting like a “gangster”. The appellant was wearing various bandanas and said that he was a member of a gang. He also removed a large knife from his pocket.

[12] Mr. Roy approached the appellant and again told him to leave the family gathering. He raised his voice and may have placed his hand on the appellant’s shoulder. The appellant pulled out the knife, said “yo what’s this?” and stabbed Mr. Roy once. The appellant immediately fled the scene.

[13] The stabbing occurred at around 11:00 p.m. The appellant arrived at Percy Simon’s house about one kilometre from the Roy residence very shortly after the stabbing. According to Rozelyna Trudeau, who was at Simon’s residence, the appellant knocked on the door and said:

Hey, let me in, let me in, I gotta hide, let me in, I stabbed somebody.

[14] Ms. Trudeau described the appellant as acting as though he was proud of what he had done. He kept repeating his claim that he had stabbed someone. Mr. Simon refused to allow the appellant into his home, telling him that he did not want the police around his house.

[15] The appellant was arrested the next morning. He had scratches on his face and a bruise on his neck. Expert evidence indicated that the scratches on the appellant’s face were likely self-inflicted, although it was possible that they could have been caused by tree branches as the appellant was running through the woods. The bruise on the appellant’s neck was consistent with “a relatively minor blunt force injury”.

[16] Mr. Roy died from a single stab wound. The knife entered his abdomen and travelled on a downward trajectory through the small bowel and cut the right iliac artery, causing extensive bleeding. He died approximately 15 minutes after being stabbed.

[17] The knife was still in Mr. Roy’s body at the time of the autopsy. The entire 19.7 centimetre blade was buried in Mr. Roy. He had no defensive wounds.

[18] Mr. Roy had a blood alcohol level of .170. Although the toxicologist could not say exactly how much Mr. Roy had to drink because of several unknown variables, he could say that Mr. Roy had quite a bit, perhaps as many as 16 regular beers in the seven hours preceding his death. People who were at the party at the Roy residence indicated that Mr. Roy had been drinking but that he did not appear intoxicated.

[19] The appellant testified. According to him, he had smoked a considerable amount of marijuana with his aunt in the afternoon and started drinking alcohol at around 5:00 p.m. The appellant testified that he had no memory of anything that had happened between the early evening of the night Mr. Roy was stabbed and his arrest the next morning. He claimed to have blacked out. He had no recollection of ever having a knife, attending the party at Mr. Roy’s home, stabbing Mr. Roy, fleeing the scene of the stabbing, or going to Mr. Simon’s residence.

[20] Some of the people who interacted with the appellant at the Roy residence testified that the appellant appeared to have been drinking. He was staggering a bit and his speech was somewhat slurred. Mr. Roy’s brother described the appellant as under the influence of alcohol, but not drunk. Mr. Roy’s wife referred to him as “a little drunk”. They all testified that the appellant was able to carry on coherent conversations about various topics and move about the party.

[21] The trial judge rejected the appellant’s evidence that he had no recollection of the relevant events, describing it as “selective” and “self-serving”.

III

the conviction appeal

A: The Reasons for Judgment

[22] In his factum, counsel submitted that the trial judge made various errors in his reasons for judgment. Most of these submissions were not pursued in oral argument. The court did not call on the Crown to respond to any of these submissions.

[23] The appellant alleged that the reasons for judgment are inadequate and do not admit of meaningful appellate review; that the trial judge misapprehended evidence; and that he improperly took judicial notice of the relationship between a person’s apparent ability to function and a claim of alcohol-induced loss of memory.

[24] Contrary to the appellant’s claim that the reasons for judgment fail to adequately describe “the pathway to judgment”, I read those reasons as cutting a very logical path to the court’s ultimate judgment. The trial judge began with a consideration of, and an acquittal on, the full charge of first degree murder. He acquitted on the basis that the Crown had not proved that the murder was planned and deliberate. In the course of considering first degree murder, the trial judge indicated he was satisfied that the appellant had the requisite intent for murder. He did not engage in any analysis of the evidence relevant to intent at that juncture.

[25] Reasons for judgment must be read as a whole. It cannot be taken from the trial judge’s reference to his finding on intent made in the course of his analysis of the appellant’s liability for first degree murder that the trial judge had decided the issue of intent without regard to the evidence relevant to that issue.

[26] When the trial judge turned to the appellant’s liability for second degree murder, he considered the evidence relevant to the appellant’s state of mind at the time of the homicide, including the evidence of intoxication. He referred to the legal principles applicable to evidence of intoxication and reviewed that evidence at some length. He considered the appellant’s evidence to the effect that he was so impaired he had no recollection of the relevant events and ultimately, rejected that evidence because it was inconsistent with the evidence of several other witnesses about the appellant’s level of sobriety as reflected in his conduct.

[27] The trial judge’s reasons make it crystal clear that he convicted the appellant of second degree murder because he was satisfied that the Crown had proved beyond a reasonable doubt that the appellant foresaw the fatal consequences of stabbing Mr. Roy in the abdomen. The trial judge made that finding after considering the appellant’s conduct – he plunged a 19.7 centimetre knife blade into Mr. Roy’s stomach – and rejecting the defence contention that the appellant was very intoxicated when he stabbed Mr. Roy.

[28] Counsel also alleged three misapprehensions of the evidence. One arose out of the testimony of the appellant. The trial judge mistakenly indicated that the appellant testified that he did not know whether his level of impairment would have prevented him from understanding the consequences of stabbing Mr. Roy. In fact, the appellant testified that his impairment would not have prevented him from understanding the consequences. The appellant’s answer to the question has little evidentiary value. To the extent that the trial judge misapprehended the evidence, however, his misapprehension benefitted the appellant.

[29] The other two alleged misapprehensions of the evidence, one relating to where Mr. Roy was stabbed (the chest or the abdomen) and the other to the expert evidence about the cause of scratches on the appellant’s face (self-inflicted or accidental), were interpretations of the evidence that were open to the trial judge. In any event, neither alleged misapprehension was material to the outcome at trial.

[30] Lastly, I turn to the submission that the trial judge improperly took judicial notice in assessing the evidence relevant to the appellant’s intoxication. The trial judge found that the appellant’s professed inability to remember anything that had happened over many hours because of his alcohol and drug consumption was inconsistent with his level of intoxication, as reflected in his conduct before and after the killing. The trial judge, relying on the evidence of several witnesses, concluded that while the appellant had been drinking and consuming marijuana before the stabbing, his demeanour and conduct did not suggest a level of impairment that had compromised his ability to comprehend his surroundings, understand what he was doing, and foresee the consequences of his actions. In the trial judge’s assessment, the appellant’s level of intoxication, as reflected in his contemporaneous conduct, was inconsistent with the degree of intoxication the trial judge would associate with a total inability to recall anything that had happened over many hours.

[31] The trial judge’s testing of the credibility of the appellant’s evidence about his level of impairment against the evidence of the various witnesses who described the appellant’s conduct immediately before and after the homicide is the kind of common sense approach expected of a trier of fact and does not amount to any form of judicial notice. Counsel’s related argument that persons can be highly intoxicated without demonstrating a high level of impairment in their conduct is a valid argument. It is, however, no more than a valid argument and cannot be elevated to the level of an incontrovertible fact barring a trier of fact from drawing inferences about the level of impairment based on conduct.

B: The Fresh Evidence

(i) The issue

[32] As outlined above, although several defences were advanced, the appellant’s state of mind when he stabbed Mr. Roy was the central factual issue at trial. The Crown argued that the appellant had intended to cause bodily harm to Mr. Roy, knowing that death was the likely consequence when he stabbed him. The defence, focusing on the appellant’s drug and alcohol-induced intoxication and his youth, maintained that the Crown had failed to prove that the appellant foresaw that Mr. Roy’s death was the likely consequence of the stabbing. The appellant’s position rested to a significant degree on his own evidence about his alcohol and marijuana consumption in the hours leading up to the stabbing and his evidence that he had no recall of the relevant events. The defence maintained that the inability to recall the events reflected the appellant’s very high level of intoxication. The trial judge disbelieved the appellant and rejected this argument.

[33] FASD was not mentioned during the trial proper. In a psychiatric report prepared for sentencing purposes, the author raised the “possibility” that the appellant suffered from FASD. The author noted that he could not make that diagnosis because evidence of maternal alcohol abuse during pregnancy could not be confirmed. The author further indicated that an FASD diagnosis “would explain much of his [the appellant’s] features.”

[34] The psychiatrist testified in the sentencing proceedings. He referred to FASD as manifesting itself in the same kind of behavioural problems – e.g., poor impulse control – as those associated with the appellant’s other difficulties, such as Attention Deficit Hyperactivity Disorder. The doctor was not sure that the recognition of the appellant’s FASD added much to the picture of the appellant’s mental makeup.

[35] In his reasons for sentence, the trial judge referred to the doctor’s assessment that the appellant “may be suffering from a foetal alcohol syndrome disorder”. He made no further mention of FASD.

[36] Shortly before the appeal was initially scheduled to be heard, counsel for the appellant requested an adjournment to allow counsel an opportunity to present fresh evidence relating to the appellant’s FASD and its effect on his state of mind when he killed Mr. Roy. Eventually, the reports of Dr. Stanley, a defence expert, Dr. Wright, an expert retained by the Crown, and the extensive examinations in-chief and cross-examinations of both experts were placed before the court on the fresh evidence application. Counsel for the appellant also relied on some of the evidence adduced at the sentencing proceeding in support of the fresh evidence application.

[37] Counsel significantly narrowed the legal and factual issues on the fresh evidence application. On the legal front, counsel agree that the admissibility of the fresh evidence turns on whether the fresh evidence referable to the appellant’s FASD, considered in the context of the rest of the evidence adduced at trial, could reasonably be expected to have affected the verdict: see Reference Re Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 99-100. Counsel refer to this as the cogency requirement. Although defence counsel at trial was aware of the possibility that the appellant suffered from FASD by the time of sentencing and did not pursue the relevance of FASD to the appellant’s state of mind, the Crown does not suggest that the absence of due diligence should factor into this court’s decision on the application to adduce fresh evidence.

[38] On the factual front, the Crown accepts the opinion of its expert, Dr. Wright, that the appellant likely suffers from FASD. The Crown also accepts that Dr. Wright’s opinion that the appellant suffers from FASD is admissible under the rules governing expert evidence and is relevant to the issue of the appellant’s state of mind at the time he killed Mr. Roy. The Crown correctly observes, however, that compliance with the rules governing admissibility and relevance do not provide a ticket to admissibility on appeal. The evidence must be sufficiently cogent to warrant its admission.

[39] Counsel for the appellant candidly acknowledges that the cogency evaluation comes down in large measure to a consideration of the evidence of Dr. Wright, the Crown’s expert. Counsel does not rely on the evidence of his expert, Dr. Stanley, to the extent that Dr. Stanley’s evidence is inconsistent with, or goes beyond, the evidence of Dr. Wright. The outcome of the application to adduce fresh evidence, therefore, turns first on what Dr. Wright said and, second, on whether his testimony meets the cogency requirement described in Re Truscott.

(ii) The evidence

[40] FASD is a permanent neurodevelopmental disorder. It is an umbrella term describing a range of effects that can occur in an individual whose mother drank alcohol during pregnancy. Those effects can include physical, mental, behavioural and learning disabilities. Fetal Alcohol Syndrome (“FAS”) describes the most severe manifestations of the disorder. The appellant does not fall into the FAS category.

[41] FASD impacts on executive functioning. Executive functioning engages the more abstract forms of thinking, including the ability to maintain an appropriate problem-solving set for the attainment of goals. Executive functioning refers to specific cognitive skills, including planning and mental representation. An individual with an executive functioning deficit may display poor organizational skills and planning, a lack of concrete thinking and inhibition, difficulty grasping cause and effect, and an inability to delay gratification. FASD in a particular individual may affect some but not other forms of executive functioning.

[42] In his testimony, Dr. Wright explained that the term executive functioning is an ambiguous one referable to a wide variety of cognitive abilities. Executive functioning deficits are brought about by a wide variety of causes, including various neurological disorders. Deficits in executive functioning are inherently difficult to measure. Where those deficits exist, it can be difficult to attribute the deficit to any single cause. For example, any executive functioning deficit in the appellant might be explained by FASD, or attitudinal and family behaviour patterns, or a combination of many factors.

[43] Dr. Wright also testified that levels of executive functioning are not static in individuals. An individual’s level of executive functioning will fluctuate and may rapidly decline in certain situations, as for example in situations of extreme emotional distress. The effects of FASD on the executive functioning of a particular individual are also variable. The nature and extent of the neurological disorder and the impact of that disorder on executive functioning vary from person to person who suffers from FASD. In short, the impact of FASD on executive functioning will vary from individual to individual and will vary for the same person from situation to situation.

[44] Clinical tests can provide some insight into the impact of FASD on an individual’s executive functioning. An individual’s history may also assist in identifying the impact of FASD on executive functioning. There is no evidence that any of these tests were done on the appellant, either before his sentencing, or in connection with this application to adduce fresh evidence.

[45] Dr. Wright was questioned at some length about the effect of FASD on a person’s ability to appreciate the cause and effect relationship between his actions and the consequences of those actions. Dr. Wright agreed that there is “a reduced contemplating of consequences in most people with executive functioning difficulties”. Dr. Wright also testified that in most cases FASD would not affect a person’s ability to perceive “basic” or immediate cause and effect relationships, whereas it could interfere with the perception of more indirect or abstract cause and effect relationships.

[46] Dr. Wright explained the distinction he drew by reference to a case from his practice. A person with FAS became angry, picked up a metal pole and began to smash a vehicle. The people in the car were understandably terrorized. Dr. Wright opined that the individual “has the general intent of busting stuff up”, but not the “specific intent to terrorize these people.” He knew that damage to the vehicle would be the immediate consequence of his physical acts, but he did not contemplate the terrorized reaction of the persons in the vehicle, a more indirect consequence of his actions.

[47] In re-examination, Dr. Wright testified as follows:

Q. And therefore, would somebody with some executive functioning impairment, in your view, understand that stabbing somebody in the abdomen with a 19-centimetre knife and a[n] 8-centimetre blade would cause that person death or serious bodily injury?

A. I see no reason why FASD would impair one’s knowledge of that or understanding of that.

Q. And let me clarify, serious bodily harm that was likely to cause death. Not just serious injury, but serious injury that was likely to cause death.

A. Yes. I don’t see how that disorder would cause you not to be able to understand that.

[48] Dr. Wright’s answers were consistent with his report in which he had indicated:

In essence this offence does not appear to involve executive functioning failure as much as value system consistent aggression that may well have been disinhibited by alcohol.

[49] Counsel for the appellant further cross-examined Dr. Wright after his re-examination. Dr. Wright agreed with counsel’s suggestion that the impact of FASD on executive functioning as it related to the secondary consequences of a person’s actions raised “a more complicated question” than did the impact of FASD on an individual’s potential criminal responsibility. Dr. Wright indicated that FASD did not provide a basis for a finding that a person was not criminally responsible on account of a mental disorder, but could in some circumstances impact on the issue of an accused’s intention.

[50] Dr. Wright also testified that impulsive conduct or conduct indicative of rage was more consistent with a person whose executive functioning was adversely affected by FASD. He was not aware of any evidence that the appellant acted impulsively or in a rage when he stabbed Mr. Roy. Rather, the evidence indicated that the appellant had armed himself with a deadly weapon at some point prior to the final encounter with Mr. Roy.

[51] Both counsel persuasively advanced different interpretations of Dr. Wright’s evidence. Crown counsel argues that Dr. Wright went so far as to opine that the appellant’s FASD did not affect his executive functioning insofar as it related to his knowledge of the likely consequences of stabbing Mr. Roy.

[52] Counsel for the appellant accepts that Dr. Wright did not, and could not, speak directly to the actual effect of FASD on the appellant’s state of mind when he stabbed Mr. Roy. Counsel submits, however, that Dr. Wright acknowledged that FASD is relevant to a person’s ability to foresee some consequences of that person’s actions. Counsel submits that Dr. Wright’s acknowledgement that the appellant’s FASD is relevant to his ability to foresee consequences is sufficient to justify admitting the evidence on appeal and ordering a new trial.

[53] Extracts from Dr. Wright’s evidence, particularly his re-examination, offer support for the Crown’s interpretation. However, reading Dr. Wright’s evidence as a whole, I think his evidence is inconsistent with the submission that he was able to assert definitively that the appellant’s FASD had no effect on his state of mind when he killed Mr. Roy. As Dr. Wright explained, the impact of FASD on any particular aspect of executive functioning varies with the nature of the cognitive process in issue, the individual’s particular neurodevelopmental disorder, and the specific circumstances of the case. In light of these many variables and the absence of any form of testing of the appellant, I take the thrust of Dr. Wright’s evidence to be that no one could say whether FASD had any impact on the appellant’s knowledge as to the likely consequences of his actions when he stabbed Mr. Roy.

[54] I read Dr. Wright as testifying that absent any evidence going specifically to the effect of the appellant’s FASD on his executive functioning, and given that the circumstances of the homicide to some degree contraindicated the influence of FASD, he saw no basis upon which to conclude that the appellant’s FASD had any effect on his ability to foresee the consequences of stabbing Mr. Roy. Consequently, while I would not agree that Dr. Wright went so far as to say that FASD had no effect on the appellant’s state of mind, I think his evidence does go so far as to indicate that he could see no basis for concluding that the appellant’s FASD did have an effect on the appellant’s state of mind.

[55] On my interpretation of Dr. Wright’s evidence, this case is indistinguishable from R. v. Walle, 2012 SCC 41, [2012] 2 S.C.R. 438. In Walle, the appellant shot the victim in the chest at close range and was convicted of second degree murder. On appeal, counsel proffered psychiatric evidence to the effect that the appellant suffered from a variety of medical and psychiatric disorders, including Asperger’s Disorder, Paranoid Personality Disorder, and Intermittent Explosive Disorder. Counsel argued that the psychiatric evidence was relevant to the appellant’s state of mind when he fired the fatal shot and warranted a new trial.

[56] Moldaver J., for the court, in holding that the evidence was inadmissible, stated, at paras. 85-86:

The main failing of the proposed fresh evidence is that nowhere does Dr. Duska [the appellant’s expert] suggest that the appellant, by virtue of his diagnosed disorders, may not have been aware of the consequences that were likely to follow upon shooting someone in the chest at close range. …

If Dr. Duska was of the view that the appellant’s disorders may have impacted on his awareness of the consequences of firing a gun into a person’s chest at close range, he could have prepared a report to that effect and filed it on this appeal. He did not do so. [Emphasis added.]

[57] The same observation can be made about Dr. Wright’s evidence. He did not offer the opinion that the appellant’s FASD may have rendered him unaware of the consequences that were likely to follow from stabbing Mr. Roy. Dr. Wright’s evidence spoke on a general level about the potential effect of FASD on executive functioning. To the extent that he could apply that general observation to this case, he saw no basis to conclude that the appellant’s FASD impacted on his state of mind and some basis in the circumstances of the homicide to conclude that it did not.

[58] A trier of fact, armed with Dr. Wright’s evidence, considered in the context of the trial evidence, would be reasonably able to conclude that:

• the appellant suffers from FASD;

• FASD can affect cognitive functions, including the ability to understand cause and effect;

• the effect of FASD in a specific circumstance on an individual’s various cognitive functions, including the ability to understand cause and effect, varies from person to person and from situation to situation; and

• Dr. Wright saw no basis for concluding that the appellant’s FASD affected his ability to foresee the consequences of stabbing Mr. Roy.

[59] A trier of fact, armed with the additional findings outlined above, could not reasonably be expected to have arrived at a different verdict than that returned at trial. Evidence that FASD can, in some people, on some occasions, affect some forms of executive functioning, including appreciation of cause and effect relationships, could not materially advance the defence claim that the Crown had failed to prove that the appellant foresaw Mr. Roy’s death as a likely result of the stabbing.

[60] The evidence proffered on appeal could not reasonably be expected to have affected the outcome at trial. It is not admissible.

IV

the sentence appeal

[61] The trial judge decided that the appellant should be sentenced as an adult. In his reasons for doing so, he set out the applicable statutory regime and thoroughly reviewed, in the context of the applicable statutory factors, the extensive evidentiary record placed before him on sentencing. I see no error in his review of the record or analysis of the pertinent factors.

[62] The trial judge ultimately concluded:

… I am satisfied that a youth sentence would not be of sufficient length to hold the young person accountable for his offending behaviour. A youth sentence fails to take into account the seriousness of the offence and the [manner] in which it was conducted. It also fails to consider that the offender was under a probation order and that the previous evening he was involved in a very serious and violent robbery.

In my view, the adult sentence will still provide the rehabilitation that will address the risks posed by the offender prior to his re-integration into society. These programs are available in the institutions and the offender can continue to follow them. I am not reasonably assured that the offender can be safely re-integrated into society. Further, the adult sentence will protect society much more adequately than a youth sentence.

The Crown has succeeded in establishing that a youth sentence would not be in accordance with the sentencing principles enunciated by the Youth Criminal Justice Act.

[63] Counsel submits that Dr. Wright’s evidence that the appellant suffers from FASD diminishes his moral culpability for his conduct and, therefore, undermines the Crown’s case for an adult sentence.

[64] Moral culpability was a relevant consideration in determining whether the appellant should be sentenced as an adult. To the extent that FASD impacts on the behaviour that attracts criminal liability, FASD, like other forms of cognitive impairment, can attenuate the moral blameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence: R. v. Ramsay, 2012 ABCA 257, 292 C.C.C. (3d) 400, at para. 25. However, as explained in my analysis of the admissibility of the fresh evidence, Dr. Wright’s evidence does not permit a conclusion as to the impact, if any, of the appellant’s FASD on his behaviour when he stabbed and killed Mr. Roy.

[65] The trial judge was aware of the possibility that the appellant suffered from FASD when he sentenced him. He was also aware of the various cognitive and emotional challenges facing the appellant, many of which could be the product of FASD or other problems. The fresh evidence offered on appeal lifted the possibility of FASD to a probability. However, for the same reasons that the evidence could not assist on the conviction appeal, the evidence could not shed any new light on the appellant’s moral blameworthiness for stabbing Mr. Roy. The fresh evidence affords no reason to vary the sentence imposed at trial. I would dismiss the sentence appeal.

RELEASED:

“APR 22 2014” “Doherty J.A.”

“DD” “I agree S.T. Goudge J.A.”

“I agree C.W. Hourigan J.A.”