Guest post by Brock Jones, Crown Counsel 
The Ontario Court of Appeal released a ground-breaking decision today on the significance of a diagnosis of fetal alcohol spectrum disorders (“FASD”) for young persons in criminal. While the Court clearly acknowledged the nature of FASD and its implications for criminal culpability, it also put significant limits on the use of such a diagnosis unless specifically applied to the facts of a particular case.
The Facts of R v Manitowabi 2014 ONCA 301
Dakota Manitowabi was 16 years of age at the time of his offence. He attended a party where he was not invited and was asked to leave by the homeowner. He did leave, but returned with a large knife. When confronted about his presence again, he stabbed the homeowner once in his torso. The victim died approximately 15 minutes later.
At trial, Manitowabi did not dispute he committed the stabbing but argued he lacked the intent to kill and should not be found guilty of murder. The defence failed and he was found guilty of second degree murder. The judge imposed an adult sentence of life without parole for seven years (the maximum sentence possible) and also lifted the ban on the publication of his identity.
What is FASD?
FASD refers to a wide array of behavioural and intellectual difficulties associated with damage to the human brain caused by exposure to alcohol during pregnancy. Current research suggests the prevalence of FASD in the general population of between 2-5%, and the rate in prisons (both juvenile and adult) could be at least 10 -15 times that number.
In Manitowabi, the Court of Appeal noted the following about FASD at paragraph 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 disability. Fetal Alcohol Syndrome (“FAS”) describes the most severe manifestation of the disorder…
The Court continued to note that FASD “impacts on executive functioning”, which in turn refers to “specific cognitive skills”, including the ability to grasp “cause and effect.” However, it cautioned that the expert testimony in the case before it warned that executive functioning is an “ambiguous” term referable to a “wide variety of cognitive abilities”, whose deficits are “inherently difficult to measure.”
Does a Diagnosis of FASD matter?
At trial, it was unclear if Manitowabi suffered from FASD and thus defence counsel did not vigorously pursue its significance. By the time of the appeal, several years later, the Court of Appeal had expert evidence before it which established as a probability the appellant suffered from some form of FASD.
The Court accepted that FASD and its effect on executive functioning could be relevant to both a young person’s guilt at trial and his or her moral culpability for the purposes of sentencing. However, it also noted that the “impact of FASD on executive functioning will vary from individual to individual and will vary for the same person from situation to situation.” A blanket, abstract diagnosis of FASD will thus be of limited value.
Rather, clinical tests conducted by an expert witness that will assist with understanding the particular impact of FASD on the young person before the court were recommended. Additionally, the Court of Appeal emphasized that the significance of an FASD diagnosis must be tailored to the specific crime before the youth justice court.
Thus, in Manitowabi’s appeal, the expert evidence presented did not assist with the specific circumstances of the case – that is, whether or not his probable affliction of FASD impacted on his ability to foresee the consequences of stabbing the victim. And while such a diagnosis could “attenuate the moral blameworthiness” of a young offender, since it was not established FASD was relevant to the specific crime in question (i.e. murder), it “could not shed any new light on the appellant’s moral blameworthiness.” As a result, both the conviction and adult sentence were upheld.
Implications for Future Cases
Following Manitowabi, there can be no doubt a diagnosis of FASD for a young person is highly relevant in youth criminal proceedings. But counsel must be cautioned against relying on a mere abstract diagnosis and arguing their client is therefore entitled to an acquittal at trial or mitigation at sentencing. Rather, an expert opinion, specifically tailored to the exact criminal acts in question, must be proffered.
Obtaining an expert opinion that a young person suffers from FASD is already a challenging hurdle for the defence to overcome, as it typically requires the young person’s mother to admit to drinking during pregnancy. Once obtained, its value to the defence is often simply presumed as it establishes a highly mitigating factor. Following Manitowabi, that would be a serious mistake.
While it is incumbent upon all participants in the youth criminal justice system to acknowledge the prevalence of mental health concerns among young persons appearing in the criminal courts, the highly individualized nature of each particular case must always be appreciated.
Resources Available Online
Thankfully, a wide variety of resources exist online to help interested parties learn more about FASD.
FASD Ontario Network of Expertise (FASD ONE) is a group that works together to address issues related to Fetal Alcohol Spectrum Disorder (FASD) in the province of Ontario. Membership includes experts and specialists in research, health promotion, diagnosis, justice services, community and policy development, and service delivery as well as family members who have intimate knowledge of the practical needs of individuals with this disability. Their website has more information including contact numbers for local diagnostic clinics: http://www.fasdontario.ca/cms/resources/diagnostic-clinics
An excellent guidebook for educational practitioners can be ordered online from http://www.motherisk.org for a small fee: http://www.motherisk.org/documents/understandingFASD_OrderForm.pdf
 Brock Jones, Crown Counsel, Crown Law Criminal; Adjunct Professor, Faculty of Law, University of Toronto. Any views expressed herein are mine alone and do not represent those of the Crown Law Office nor the Ministry of the Attorney General.
 The Youth Criminal Justice Act prohibits the publication of information that would identify a young people as having been dealt with under the Act (s.110 and related sections).
 May, P.A., Gossage, J.P., Kalberg, W.O., Robinson, L.K., Bucley, D., Manning, M. 2009. FASD from various research methods with an emphasis on recent in-school studies. Developmental Disabilities Research Reviews 15: 176-192.
 R v Manitowabi 2014 ONCA 301 at para 40
 Ibid. at para 41
 Ibid. at para 42
 Ibid. at para 43
 Ibid. at para 58.
 Ibid. at paras. 64-65