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.[2]
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%[3],
and the rate in prisons (both juvenile and adult) could be at least 10 -15
times that number.[4]
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…[5]
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.”[6]
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.”[7]
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.”[8] 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.[9]
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.”[10] 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
[1] 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.
[2]
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).
[3] 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.
[4] http://www.johnhowardbc.ca/images/jhsbc-factsheet-fasd.pdf
[5] R
v Manitowabi 2014 ONCA 301 at para 40
[6] Ibid.
at para 41
[7] Ibid.
at para 42
[8] Ibid.
at para 43
[9] Ibid.
at para 58.
[10] Ibid.
at paras. 64-65
