



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 judges 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 ones ability to foresee the consequences of ones
    actions.  Counsel contended that the evidence of the appellants 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
    judges 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 appellants 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. Roys 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 appellants 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 appellants shoulder.
    The appellant pulled out the knife, said yo whats 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 Simons
    house about one kilometre from the Roy residence very shortly after the
    stabbing.  According to Rozelyna Trudeau, who was at Simons 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 appellants
    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 appellants 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. Roys 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. Roys home,
    stabbing Mr. Roy, fleeing the scene of the stabbing, or going to Mr. Simons
    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. Roys brother described the appellant as
    under the influence of alcohol, but not drunk.  Mr. Roys 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 appellants 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
    persons apparent ability to function and a claim of alcohol-induced loss of
    memory.

[24]

Contrary
    to the appellants 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 courts 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
    judges reference to his finding on intent made in the course of his analysis
    of the appellants 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 appellants liability for second degree murder,
    he considered the evidence relevant to the appellants 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 appellants 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 appellants level of sobriety as
    reflected in his conduct.

[27]

The
    trial judges 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 appellants conduct  he plunged a 19.7 centimetre knife blade into Mr.
    Roys 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 appellants 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 appellants 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 appellants intoxication.  The trial
    judge found that the appellants 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 judges assessment, the appellants 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 judges testing of the credibility of the appellants evidence about his level
    of impairment against the evidence of the various witnesses who described the
    appellants 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.  Counsels 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
    appellants 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 appellants drug and alcohol-induced
    intoxication and his youth, maintained that the Crown had failed to prove that the
    appellant foresaw that Mr. Roys death was the likely consequence of the
    stabbing.  The appellants 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
    appellants 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 appellants] 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 appellants other difficulties,
    such as Attention Deficit Hyperactivity Disorder.  The doctor was not sure that
    the recognition of the appellants FASD added much to the picture of the
    appellants mental makeup.

[35]

In
    his reasons for sentence, the trial judge referred to the doctors 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 appellants 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 appellants
    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 appellants state
    of mind, the Crown does not suggest that the absence of due diligence should
    factor into this courts 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.
    Wrights opinion that the appellant suffers from FASD is admissible under the
    rules governing expert evidence and is relevant to the issue of the appellants
    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 Crowns
    expert.  Counsel does not rely on the evidence of his expert, Dr. Stanley, to
    the extent that Dr. Stanleys 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 individuals 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 individuals executive
    functioning.  An individuals 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 persons
    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 persons 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 ones 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 dont see how that disorder would cause you not
    to be able to understand that.

[48]

Dr.
    Wrights 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 counsels suggestion that the impact of FASD on executive
    functioning as it related to the secondary consequences of a persons actions
    raised a more complicated question than did the impact of FASD on an
    individuals 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 accuseds 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. Wrights
    evidence.  Crown counsel argues that Dr. Wright went so far as to opine that
    the appellants 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 appellants state of mind when he
    stabbed Mr. Roy.  Counsel submits, however, that Dr. Wright acknowledged that
    FASD is relevant to a persons ability to foresee some consequences of that
    persons actions.  Counsel submits that Dr. Wrights acknowledgement that the
    appellants 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. Wrights evidence, particularly his re-examination, offer support for the
    Crowns interpretation.  However, reading Dr. Wrights evidence as a whole, I
    think his evidence is inconsistent with the submission that he was able to
    assert definitively that the appellants 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 individuals 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. Wrights evidence to be that no one could say whether FASD had
    any impact on the appellants 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 appellants 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 appellants 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 appellants state of mind, I think his evidence does go so far as
    to indicate that he could see no basis for concluding that the appellants FASD
    did have an effect on the appellants state of mind.

[55]

On
    my interpretation of Dr. Wrights 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 Aspergers Disorder, Paranoid Personality Disorder, and
    Intermittent Explosive Disorder.  Counsel argued that the psychiatric evidence
    was relevant to the appellants 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 appellants 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 appellants disorders may
    have impacted on his awareness of the consequences of firing a gun into a
    persons 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. Wrights evidence.  He did not offer the
    opinion that the appellants FASD may have rendered him unaware of the
    consequences that were likely to follow from stabbing Mr. Roy.  Dr. Wrights
    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 appellants 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. Wrights 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 individuals
    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 appellants 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. Roys 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. Wrights evidence that the appellant suffers from FASD
    diminishes his moral culpability for his conduct and, therefore, undermines the
    Crowns 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. Wrights evidence does not permit a conclusion as to the impact,
    if any, of the appellants 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 appellants 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.


