R v Sinclair, 2013 ABQB 745

Court of Queen ’ s Bench of Alberta Citation: R v Sinclair, 2013 ABQB 745 Date: 20131218 Docket: 120282637Q1 Registry: St. Paul Between: Her Majesty the Queen Crown - and - David Sinclair Defendant Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.4. By Court Order, information that may identify the complainant must not be published, broadcast, or transmitted in any manner. NOTE: This judgment is intended to comply with the restriction so that it may be published. _ ________________________________________ ______________ Memorandum of Decision in a Voir Dire of the Honourable Madam Justice A.B.

Moen _________________________________________ ______________ Admissibility of Expert Evidence Introduction [ 1 ] The accused defends a charge under s 271 of the Criminal Code of Canada ( Code ) on the basis that he believed the complainant was at least 16 years old. At the time of the sexual activity, the complainant was 15 ½ years old and the accused was 20

years old, more than 5 years older than the complainant. The complainant readily admitted that she consented to the sexual activity. Itwas she who provided the condoms. [2] This is a jury trial. [3] The accused has been assessed as having Fetal Alcohol Spectrum Disorder (FASD). The Crown and the Defence haveagreed to enter the five assessments done on the accused from the time he was six years old until he was fourteen. [4] At the outset of the case for the defence, Mr.

Sinclair made an application in the absence of the jury pursuant to s 657.3(3) toadduce expert evidence regarding the accused’s FASD condition and its impact on the element of the offence regarding assessment ofreasonable steps to ascertain the age of the complainant. [5] As a result of this voir dire, I permitted the expert evidence to be given before the jury with written reasons to follow. Theseare my reasons. [6] The issues that will be dealt with are: 1. Who has the evidentiary burden? 2. What does it mean to take all reasonable steps? 3. Is the expert evidence admissible? 4.

To what element of the offence is the expert evidence relevant? Discussion [7] The accused was charged with sexual assault under s. 271 of the Criminal Code of Canada. He had previously been a childin a foster home which he was visiting at the time of the alleged offence. The 15 ½ year old complainant was a child in the foster homeat the time of the alleged offence. She had met the accused that summer while he was camping with the foster family. At the time of thealleged offence she and he were watching a movie at the foster home late in the evening. When everyone was in bed, they hadintercourse on the couch.

They used condoms which she had in her purse. [8] The Crown must establish beyond a reasonable doubt that the defendant applied force to the complainant of a sexual natureand that the complainant was under the age of 16 years old at the time. Once these elements are established as fact then it is open to thedefendant to raise a defence allowed by law. The evidence of the Crown at the time of this application had established that the accusedand the complainant had had sexual intercourse, that she was 15 ½ years old at the time, and that she had consented.

Further, theCrown’s evidence was that the accused believed that the complainant was 16 years old at the time of the alleged offence. [9] The Criminal Code of Canada provides that an accused, where a complainant is under sixteen years old, will not be guilty ifshe consented and he is less than five years older than the complainant at the time of the alleged offence. [10] If, as here, the complainant is under 16 and the accused is five years or more older than the complainant, then the accused canonly defend by showing he took reasonable steps to ascertain the age of the complainant: ss 150.1(1) and (2.1)(a).

In other words, theaccused must show that he exercised due diligence with respect to determining the age of the complainant. [11] Who, then, has the evidentiary burden to show that the accused took all reasonable steps? 1. Who has the evidentiary burden? [12] In this case, the Crown has entered a portion of the statement given by the accused to the police in which Mr. Sinclair saysthat he thought the complainant was 16 years old. [13]

Section 150.1(4) imposes an evidentiary onus on the accused, not a persuasive onus: if the accused identifies evidence which,assuming it were true, would entitle him to an acquittal, the Crown must show beyond a reasonable doubt that he did not take allreasonable steps. As a result, the subjective state of mind of the accused as to the age of the complainant is not conclusive. However,although the test has been characterized as an objective one, evidence as to the accused's subjective state of mind is relevant. [14] In R v Hayes, [1991] AJ No 1232 (QB), MacKenzie J. found that although s. 150.1(4) infringed ss. 7 and 11(

d) of theCharter, it was saved by s. 1. It does not create a persuasive burden on the accused; where the accused claims he or she believed thecomplainant was 16 or over, the Crown must prove that the accused failed to take all reasonable steps to ascertain the age of thecomplainant. He held that the requirement to show all reasonable steps was not vague, and the concept was well understood. [15] In R v Osborne (1992), (NL CA), 17 CR (4th) 350 (SC AD), Goodridge C.J.N. for the Court also held thats. 150.1(4) imposes an evidentiary onus on the accused, not a persuasive onus.

Therefore, if the accused identifies evidence which,assuming it were true, would entitle him to an acquittal, it is up to the Crown to show beyond a reasonable doubt that he did not take allreasonable steps.

It is not necessary that the facts be true; it is only necessary that the evidence raise a reasonable doubt. [16] In R v Ryder, 2011 BCSC 133, the Court explained the distinction between the evidentiary onus and the persuasive onus: 74 …For the defence to succeed, it must point to evidence which gives rise to a reasonable doubt that the accused held the requisitebelief, and in addition, evidence which gives rise to a reasonable doubt that the accused took all reasonable steps to ascertain the

complainant's age; however, the accused is not obliged to call evidence to positively assert that all reasonable steps were taken. This isespecially important in light of the objective element of the test. The subjective state of mind of the accused as to the age of thecomplainant is not conclusive; the accused's evidence as to what he believed is not determinative of the test under s. 150.1(4). [17] The accused must be able to point to evidence that establishes that he took reasonable steps to ascertain the age of thecomplainant. The accused does not have to give evidence himself.

Here, the accused seeks to adduce expert evidence to assist the jury indetermining if he did take reasonable steps in the circumstances of this case, and, in particular, whether his diagnosis of FASD informsthe jury as to his state of mind. 2. What does it mean to take all reasonable steps? [18] Mr. Sinclair raises the defence that he took all reasonable steps to ascertain her age.

Section 150.1(4) provides: 150.1(4) It is not a defence to a charge under …

section 271 … that the accused believed that the complainant was 16 years of age ormore at the time the offence is alleged to have been committed unless the accused took all reasonable steps to ascertain the age of thecomplainant. [19]

Section 150.1(4) of theCode “allows a defence to a morally innocent person who has taken reasonable steps to ascertain thechild's age.” R. v. M. (R.S.) (1991), (PE SCAD), 69 C.C.C. (3d) 223 (PE SCAD), at pp. 225-6, a decision of Mitchell J.A adoptedby Belzil, J. R. v. Quintanilla, 1999 ABQB 769 at para. 112 [20] A defence of having taken all reasonable steps to ascertain the complainant’s age is essentially a due diligence defence. Thisdefence was first considered by the Supreme Court of Canada in R v Stevens, (SCC), [1988] 1 SCR 1153, where theaccused sought to invoke the Charter.

In that case, the offense occurred before the Charter had come into force. For that reason, themajority did not consider the Charter arguments. However, Wilson J, for the three dissenting judges, considered whether s. 146(1)breached s. 7 of the Charter: 37 Section 146(1) of the Code makes it an indictable offence punishable by a maximum of life imprisonment for a male person to havesexual intercourse with a female person who is under the age of fourteen and who is not his wife. It is not a defence that the accusedbona fide believed that the female person was fourteen years of age or older.

This defence is expressly removed by s. 146(1). But for itsstatutory removal the defence would have been read in by the courts: see R. v. Sault Ste. Marie, (SCC), [1978] 2 S.C.R.1299 and Pappajohn v. The Queen, (SCC), [1980] 2 S.C.R. 120. ..[1] [21] Wilson J. concluded that s. 146(1) could breach s. 7 by attaching criminal liability on pain of imprisonment to conduct that isnot only lacking in mens rea but is also non-negligent. An accused could be convicted under the

section even though he could show thathe made an honest and reasonable mistake about the complainant's age. Wilson J. held that this did not accord with the principles offundamental justice. [22] Then, in R v Hess, (SCC), [1990] 2 SCR 906, the appellants were charged under the above provision, andchallenged its constitutionality.

Wilson J. for the majority held that unless the legislature has expressly eliminated the defence of a bonafide belief that the person was fourteen years of age or older, a minimum due diligence defence would be read in by the courts inaccordance with the principle that mens rea is required for true crimes. Otherwise, a person who is mentally innocent of the offence maybe convicted.

Wilson J. stated at 918: …The doctrine of mens rea reflects the conviction that a person should not be punished unless that person knew that he was committingthe prohibited act or would have known that he was committing the prohibited act if, as Stroud put it, "he had given to his conduct, andto the circumstances, that degree of attention which the law requires, and which he is capable of giving". [emphasis added] [23] In 1987, Parliament replaced s. 146(1) with provisions including the current version of s. 150.1(4). [24] The Court in R v Slater, 2005 SKCA 87 at para 23, held that the requirement that the accused take all reasonable steps toascertain the age of the complainant was added to the Criminal Code “to test the foundation of an honest belief”. [25] While providing some protection to an accused person, the due diligence requirement in s. 150.1(4) tests the foundation of anhonest (credible) belief.

Like s. 172.1(4), it was enacted by Parliament to foreclose exculpatory claims of ignorance or mistake that areentirely devoid of an objective evidentiary basis. [26] In R v RSM (1991), (PE SCAD), 94 Nfld & PEIR 80, (PEICA), Mitchell J.A. for the Court held that s150.1 meets the minimum standard to avoid offending s. 7, by allowing a defence to a morally innocent person who has taken reasonablesteps to ascertain the child's age. [27] Therefore, where the legislature has expressly eliminated, for a true crime, the defence of a bona fide belief that the personwas of an age to consent, a minimum due diligence defence is constitutionally required to ensure a sufficient mens rea.

This is to protectthose who are “mentally innocent” or “morally innocent” from being convicted; i.e. it ensures that the accused had given to his conduct,and to the circumstances, that degree of attention which the law requires, and which he is capable of giving. [28]

Section 150.1(4) requires that “all reasonable steps” be taken. This has been defined in the case law as the steps a reasonableperson would take in the particular context and circumstances. The provision introduces components of an objective test. However, whatis reasonable in a given case will depend on the particular circumstances. The question is not whether there were other steps that the

accused might have taken, but whether such steps were reasonably required. In some cases, there may be a compelling factor thatobviates the need for an inquiry: Hayes; RSM. [29] In RSM, Mitchell J.A. held in some cases, the only step an accused would be required to take to ascertain the age of anotherperson would be simply to look at him or her. [30] In the case before me, the complainant presented as a mature, attractive and well-spoken young woman. She was forthrightabout her consent and the circumstances of the sexual intercourse.

It is open to the jury, having observed the complainant, to find that itwas reasonable for Mr. Sinclair to believe that she was 16 years old. [31] In Osborne, the Court held that s. 150.1(4) is more than a casual requirement; there must be an earnest inquiry or somecompelling factor that obviates the need for an inquiry. The question is not whether there were other steps that the accused might havetaken, but whether such steps were reasonably required.

The Court emphasized the importance of the word "all" in the phrase “allreasonable steps”. [32] The Court in R v Cunningham, [1996] OJ No 4306 (Gen Div), aff’d [1997] OAC 111 held that s. 150.1(4) introducescomponents of an objective test, and therefore even where the evidence of the accused is believed, a court must nevertheless engage in anexamination of all of the evidence to determine whether the defence applies. Stach J. stated that some of the factors that bear on theassessment of age are a matter of common sense. [33] The jury instructions in CRIMJI under

section 6.67A are also useful. 23. … There is no checklist of reasonable steps; what is required will depend on what is reasonable in the particular circumstances.Generally, as the difference in age between the accused and complainant increases, the accused is required to take more steps to ascertainthe age of the complainant. In some situations, observations of [the complainant] by [the accused] may be sufficient to constitutereasonable steps. Such observations may include [the complainant’s] appearance and behaviour and the age of the people (he/she)normally associates with.

You should also consider any personal knowledge [the accused] had of [the complainant], the nature of therelationship between [the accused] and [the complainant], and the environment where the incident took place. 24. However, in some circumstances, observations may be insufficient and you may conclude that it was reasonable for [the accused]to ask [the complainant] or someone who knew [the complainant] (his/her) age.

However, even if [the complainant] told [the accused](he/she) was 16 years of age or more, [the accused] may still have needed to make further inquiries, depending on the circumstances. [34] Recently, the Court in R v Duran, 2013 ONCA 343 considered the trial judge’s charge to the jury on s. 150.1(4), noting thatshe did no more than read out the words of the

section and tell the jury that the test was objective. The Court held that more wasrequired: 52 What constitutes "all reasonable steps" depends on the context and the circumstances. There is no automatic checklist ofconsiderations applicable to every case.

Indeed, in some cases, an accused's visual observation of the complainant may be enough toconstitute reasonable steps. [emphasis added] [35] The Court in Duran also cited R v LTP (1997), (BC CA), 113 CCC (3d) 42 (BCCA) for the propositionthat the assessment of whether the accused has taken all reasonable steps is an objective one, and evidence as to the accused's subjectivestate of mind is relevant but not conclusive.

The Court in LTP held that in considering whether the Crown has proven beyond areasonable doubt that the accused has not taken all reasonable steps to ascertain the complainant’s age, the court must ask what stepswould have been reasonable for the accused to take in the circumstances. [36] Courts have considered the effect of reasonable steps in other provisions of the Code. [37]

Section 273.2 (b) (belief in consent as a defence to sexual assault) provides that an honest but mistaken belief in consent is nota defence unless the accused took reasonable steps, in the circumstances known to the accused at the time, to ascertain that thecomplainant was consenting. [38] In considering

section 273.2 (b), the Ontario Court of Appeal noted that although this provision introduced an objectivecomponent into the mental element of the offense, it was personalized according to the subjective awareness of the accused at the time;the issue is what he actually knew, not he ought to have known: R v Darrach (1998), (ON CA), 122 CCC (3d) 225(Ont CA), aff’d on other grounds 2000 SCC 46. [39] In general, the test of reasonableness in this context is a quasi-objective test.

That is, the reasonable steps to be assessed froman objective point of view but the assessment is informed by the circumstances objectively known to the accused: R v Alboukhari, 2013ONCA 581; R v Malcolm, 2000 MBCA 77, leave denied [2000] SCCA No 473. [40] In other words, s 273.2(

b) creates a form of objective liability in that the accused is held up to a standard of reasonableconduct which is assessed on the basis of the circumstances subjectively known to the accused at the time.

The provision does notrequire that the belief be reasonable, but rather that the accused make a reasonable effort to ascertain if consent in fact exists. [41] What is reasonable depends on the facts. [42] The purpose of a minimum due diligence defence is to ensure that the accused had given to his conduct, and to thecircumstances, that degree of attention which the law requires, and which he is capable of giving. Although the wording of s. 150.1(4)varies from the wording in s. 273.2(b), its purpose is the same.

What is reasonable in a given case will depend on the particularcircumstances and evidence as to the accused's subjective state of mind is relevant. “Reasonable steps” include factors personal to the

accused. [43] While there may be some valid distinction between “all reasonable steps” in s. 150.1(4) and "reasonable steps" in s. 273.2(b),the practical effect of the distinction is not clear from the case law.

Section 273.2(

b) also includes the phrase “in the circumstancesknown to the accused at the time”, but the case law on s. 150.1(4) establishes that the circumstances known to the accused at the timeare also relevant. [44] Given the similarities, s. 150.1(4) can also properly be characterized as a “quasi-objective” test or standard. The accused isheld up to a standard of reasonable conduct, but this conduct is assessed on the basis of the circumstances subjectively known to theaccused at the time.

The accused’s subjective belief is relevant, although not determinative. [45] “Reasonable steps”, then must take into account factors personal to the accused, such as any personal knowledge the accusedhad of the complainant, the nature of the relationship between the accused and the complainant, and the accused's observation of thecomplainant.

The trier of fact must ask what steps would have been reasonable for the accused to take in the circumstances. [46] Therefore, if the expert evidence is directed toward the personal circumstances of the accused which may impact on thereasonableness of his conduct or his subjective belief, and meets the other three Mohan criteria, it is admissible: R v Mohan, (SCC), [1994] 2 SCR 9. 3. Is the evidence of Dr. Moore admissible? [47] To assist in his defence, Mr. Sinclair makes an application to admit the evidence of Dr. Timothy E.

Moore on the basis that heis an expert on fetal alcohol spectrum disorder (FASD) who will speak to the implications of that diagnosis on the cognitive processes ofthis particular accused. [48] The following test for admissibility of expert evidence was set out by Sopinka J. in Mohan: (1) relevance; (2) necessity in assisting the trier of fact;(3) the absence of any exclusionary rule; and(4) a properly qualified expert. [49] There is no issue about an exclusionary rule; there is none. [50] In determining whether the expert FASD evidence proposed in this case is admissible, the Court must determine if theaccused’s condition is relevant to the question of whether he took reasonable steps to ascertain the age of the complainant.

I will dealwith that question later in these reasons. [51] With respect to the two remaining criteria, I shall first address whether Dr. Moore is properly qualified in the area ofpsychology and, in particular, FASD. a. Properly qualified expert [52] Dr. Timothy Moore is an eminently qualified expert in psychology. The Crown does not take any issue with his expertise inFASD. [53] Dr. Moore is Professor and Chair, Department of Psychology, Glendon College, York University of Toronto, Ontario. Hisexpertise lies in the field of FASD and its implications for the criminal justice system.

Professor Moore has been writing about thevicissitudes of FASD and its implications for the criminal justice system for 10 years. He has authored or co-authored severalpublications on FASD and has given presentations to judges, crown attorneys, and other professional groups on these matters. [54] Dr. Moore has been a professor since 1971. Since 1995 he has been at York University. He has been particularly interested inpsychology and law, teaching a number of courses in that area. He has published widely in the area of psychology.

In particular, he haspublished since 2004 a number of papers on FASD, most in peer-reviewed journals. [55] In 2004 he and a colleague were awarded a grant from the Ontario Law Foundation with respect to Fetal Alcohol SpectrumDisorder in the Criminal Justice System: Issues, Practices, and Policy Development. Currently he is a Fellow of the Counsel forScientific Medicine and Mental Health. [56] I have no difficulty in qualifying him as an expert in the area of psychology to give opinions as to the effect of FASD oncognitive functioning, decision making, planning, and anticipating consequences of one’s actions. b.

Is the expert evidence necessary? [57] Although Dr. Moore is qualified, he is not permitted to give evidence unless it is necessary. [58] Whether an expert’s evidence is necessary is in the sense that it provides “… scientific information that is likely to be outsidethe experience and knowledge of a judge or jury”: Mohan at para 21, citing R v Abbey (SCC), [1982] 2 S.C.R. 24 at p42. [59] However, the need for the expert evidence must be assessed “... in light of its potential to distort the fact-finding process”:Mohan at para 23.

[ 60 ] There is also a concern inherent in the application of this criterion that experts not be permitted to usurp the functions of the trier of fact.

Further, presented in scientific language that the jury does not easily understand and submitted through a witness of impressive antecedents, this evidence is apt to be accepted by the jury as being virtually infallible and as having more weight than it deserves. [ 61 ] This is particularly so when the opinion of the expert is based on matters of human nature and behaviour which the judge or jury could be expected to understand without the opinion. [ 62 ] Of course, the jury can be instructed properly about the use of expert evidence thereby allaying some of these fears. [ 63 ] In the case here, there are several reports being entered as exhibits which are technical in nature and not easily accessible to a trier of fact.

The Defence with the agreement of the Crown is entering as exhibits the reports of several psychologists who have assessed Mr. Sinclair since he was a child: ▪ D-V Massey and Associates Psychological Assessment, December 20, 2005 ▪ Randall Symes Psychological Assessment Report, March 28, 2003 ▪ Caniff & Associates Behavioural Assessment Report, March 14, 2001 ▪ Edmonton Public Schools Consulting Services Assessment, November 21, 1999 ▪ Glenrose Rehabilitation Hospital Assessment, November 19, 1997 [ 64 ] Further, the most recent report dated December 20, 2005, was done when Mr. Sinclair was 14 years old.

A question that may well be asked is whether that report has any relevance to Mr. Sinclair at 20 years old and at the time of the alleged offence. This is information that would be outside the knowledge of the judge or jury. [ 65 ] An expert will be able to assist the jury to understand the impact of FASD on Mr. Sinclair. The evidence is necessary because the jury cannot be expected to understand the nature of FASD and how it may affect Mr.

Sinclair. [ 66 ] However, the expert opinion will not be admitted unless it is relevant to an issue before the jury. [ 67 ] The expert evidence here could only be relevant to the issue of whether Mr. Sinclair took reasonable steps to ascertain the age of the complainant. I will discuss this in the next

section of these reasons. 4. To what element of the offence is the expert evidence relevant? [ 68 ] The Crown argues that the test in Mohan for relevance requires a weighing of the probative value of the evidence against its prejudicial effect. Relevance is a threshold requirement for admissibility of expert evidence: Mohan para 22 . [ 69 ] As discussed above, Mr. Sinclair has to point to evidence to suggest that he took all reasonable steps to ascertain the age of the complainant.

This will show whether he acted with due diligence. [ 70 ] As set out above, the state of mind of the accused in the context of the actions taken is relevant although not determinative. [ 71 ] Mr. Sinclair’s diagnosis of FASD will tell the trier of fact what would reasonably be expected of him as to his actions to determine the age of the complainant. [ 72 ] There is evidence from the complainant that she had met Mr. Sinclair that summer in the context of camping with the foster family. The other foster children at the time were 17, 16, 15 and 12 years old.

On the stand when giving evidence, the complainant seemed mature. [ 73 ] Dr. Moore can give evidence on the subjects in which he has been qualified, that is the cognitive functioning of someone with FASD, the decision-making ability, planning capability and anticipation of consequences of someone with FASD, but, in particular, Dr. Moore can assist the court with an understanding the particular diagnosis of Mr. Sinclair with respect to each of these areas. He can assist the trier of fact by interpreting the reports as to Mr.

Sinclair’s functioning in each of those areas. [ 74 ] It will be up to the jury to determine if that opinion evidence has any impact on the reasonableness of Mr. Sinclair’s actions at the time with respect to his belief that the complainant was sixteen years old. [ 75 ] In the voir dire , Dr. Moore said that Mr. Sinclair has a clear diagnosis of FASD according to the 2005 report based on standardized and widely used tests. [ 76 ] When considering whether David Sinclair took all reasonable steps to ascertain the age of the complainant, the jury will be assisted by the evidence of Dr. Moore.

The question that the jury has to determine is what was reasonably required of Mr. Sinclair, not what other steps could have been taken. [ 77 ] Put another way, the jury must ensure that Mr. Sinclair gave to his conduct and the circumstances around this offence that degree of attention which the law requires and which he was capable of giving. [ 78 ] An example of a situation where subjective circumstances may affect the assessment of reasonableness is that of a blind accused.

We would not expect that person to be capable of looking at a complainant to determine the complainant’s age, nor would we expect that blind accused to look at documents such as a driver’s licence to determine the complainant’s age. We would expect such

accused to use the means available to them to ascertain the age of a person with whom they were going to engage in sexual activity, that is, to take all reasonable steps in the circumstances to ascertain the age of the person with whom they were engaging in sex. [ 79 ] Reasonableness in this context, of course, has been characterized as an objective test. As discussed above, it is actually a quasi-objective test as it takes into account subjective considerations. In this case, the jury might take Mr.

Sinclair’s FASD into account in determining the reasonableness of the actions he took to determine the age of the complainant. His FASD is personal to him. David Sinclair’s state of mind is relevant, although not conclusive. [ 80 ] The law establishes that the circumstances known to Mr. Sinclair at the time of the alleged offence are relevant to a determination of “all reasonable steps”. Therefore, factors in this case that may be taken into account include any personal knowledge that Mr.

Sinclair had of the complainant; the complainant’s appearance, the nature of the relationship between him and the complainant; Mr. Sinclair’s observations of the complainant and other circumstances particular to the offence. [ 81 ] This is not to say that such evidence would necessarily be admissible in other s. 150.1 cases. I am cognizant of the case law to the effect that as the difference between the ages of the accused and the complainant increases, so must the reasonable steps required increase. In this case, the evidence establishes that Mr. Sinclair was 5 years and 57 days older than the complainant.

This is not a situation where there was a considerable age gap, or other evidence of circumstances which could diminish the usefulness of such evidence. Admissibility of expert evidence is, in any event, always considered on a case by case basis. [ 82 ] The evidence of Dr. Moore may assist the jurors in understanding the accused’s subjective state of mind and circumstances at the time of the offence. It is therefore relevant to the element of the offence concerning whether the accused made all reasonable efforts to ascertain the age of the complainant. Conclusion [ 83 ] I admit the evidence of Dr.

Moore as to the effect of FASD on cognitive functioning, decision making, planning, and anticipating consequences of one’s actions; particularly as it relates to the specific diagnosis of FASD in Mr. Sinclair. Heard on the 6 th day of November, 2013. Dated at the Town of St. Paul, Alberta this 17 th day of December, 2013. A.B. Moen J.C.Q.B.A. Appearances: Randall Brandt, Prosecutor for the Crown Patrice L. Taylor, Barrister & Solicitor for the Defendant