R v Small Legs, 2023 ABCJ 118

In the Alberta Court of Justice Citation: R v Small Legs, 2023 ABCJ 118 Date: 20230526 Docket: 181498114P1 Registry: Lethbridge Between: His Majesty the King - and - Judge Edwin Small Legs Restriction on Publication Identification Ban – See the Criminal Code ,

section 486.5 . By Court Order:

(1) Information that could identify AH shall not be published, broadcast, or transmitted in any way.

(2) No person shall publish, broadcast, or transmit in any way the contents of the publication ban application or the evidence, information or submissions at the hearing of the application. NOTE: Identifying information has been removed from this judgment to comply with the ban so that it may be published. Reasons for Decision on an NCR Hearing of the Honourable Justice P.G. Pharo Introduction [ 1 ] Mr. Small Legs was convicted of sexual assault and unlawful confinement after a trial, in which the judgment was handed down by this Court on December 14, 2020 (the “Trial”). Mr.

Small Legs did not call any evidence at the Trial. He now seeks a ruling from this Court that he is not criminally responsible (NCR) in accordance with the relevant provisions of the Criminal Code (the “ Code ”) and the case law. An NCR hearing was held, and Mr. Small Legs did not testify at that hearing. The only evidence at the NCR hearing was the conflicting evidence of the psychologist and the psychiatrist.

[2] This NCR hearing is challenging because of two issues. First, it appears that Mr. Small Legs disputes the facts as found bythis Court that there was a lack of consent by the victim AH. Mr. Small Legs appears to take the position that there was consent by AH. Secondly, a lot of material the experts considered in coming to their opinions was not admissible evidence at the Trial or NCR hearing,including what Mr. Small Legs related to them about what happened at the incident in question.

The Relevant Findings of this Court at the Trial [3] The complainant, AH, was a girl about 16 years old at the time of this incident, which occurred in the early morning hours ofSeptember 3, 2018, at Mr. Small Legs’ home in Brocket, Alberta. [4] This incident started with four young men, the Accused, Mr. Small Legs, along with three of his friends, Mr. Strikes With aGun, Mr. Iron Shirt, and Mr. Abraham, gathered at Mr. Small Legs’ home the day before. The evidence was clear that all the youngmen, except for Mr. Iron Shirt, were consuming alcohol, smoking marijuana and playing video games together.

At one point, Mr.Abraham got a text from AH who asked him to come pick her up from her friend’s house, whom she had been visiting. The four youngmen got in a car, and went and picked up AH, and came back to Mr. Small Legs’ home. All five of them were then sitting in the livingroom, listening to music and playing video games. [5] At one point Mr. Abraham got up and went to the bathroom. While he was gone, the evidence was that Mr. Small Legseither physically guided or carried AH into his bedroom. When Mr. Abraham finished in the bathroom, he came back into the livingroom and asked where AH and Mr. Small Legs were.

He was told they had gone to a room. He then went and knocked on the door ofMr. Small Legs’ bedroom to see if they were okay. Mr. Small Legs told him to go play video games, so he did. [6] The evidence was that after AH and Mr. Small Legs went into his bedroom, the door was locked behind them. [7] The evidence of AH was that while they were sitting in the living room, listening to music and playing video games, she wasfeeling drunk and wanted to lay down, so Mr. Small Legs brought her to a bedroom. She said she was a seven or eight out of ten on theintoxication scale.

She said that when they were in the bedroom Mr. Small Legs closed the door and started to kiss her the on lips andchest. She said she tried to get him to stop. She said that he then pushed her onto the bed and laid on top of her. She said she tried topush him off, but she could not move. She said that Mr. Small Legs removed her shirt and started to take her pants off as well. She saidshe used her hands to try to stop him from removing her pants. She said she kept telling him to stop, and that she was on her period. Shetestified that he used his weight to pin her down while he took off her underwear and pants.

She said that he then had sexual intercoursewith her. She said she tried to push him off and kept saying, “No, can you please just stop”. She testified that he responded by saying itwas “okay “and that she should be quiet. She then testified that she then made her voice even louder. She said she heard knocking at thedoor, and she heard Mr. Abraham’s voice. She said that Mr. Small Legs told him to go away. She testified that Mr. Small Legs got upand put his pants on, and held the door closed with his arm after it was unlocked. She said that when Mr.

Small Legs got off her, shepulled on her pants and grabbed her shirt. When the door opened, she ran out, and put her shirt back on. [8] The evidence of the three other young men as to what happened next was very similar. After some time while sitting in theliving room, they heard AH saying, “Stop”, and “No, no stop”. They discussed it and decided that they should intervene. They all wentto the bedroom door, but found it was locked. They knocked on the door and told Mr. Small Legs to open up, but he did not. They gotsome tools to pick the lock. The door was eventually opened.

AH ran out and appeared to be in distress. The evidence of these threeyoung men was that both AH and Mr. Small Legs had been drinking, and they both seemed somewhat intoxicated. The evidence alsoshowed that Mr. Small Legs had consumed marijuana at the time of the incident. [9] In

summary, the complainant AH's evidence was not contradicted by any other evidence. In fact, AH's evidence wascorroborated by the other Crown witnesses who all testified that they heard her cries of distress, and they came to her assistance. ThisCourt found as a fact that Mr. Small Legs touched AH in a sexual manner without her consent. That touching included removing herclothing, kissing her, and penetrating her vagina with his penis. This Court also found, based on what AH was telling him and her actionsin resisting him, that Mr.

Small Legs knew very well that at all stages of the physical interaction between them, she was not consenting toit. This Court found that the Crown had proven all the elements of sexual assault, and unlawful confinement, beyond a reasonable doubt. What are the Legal Requirements for Mr. Small Legs to beFound Not Criminally Responsible (NCR)? [10]

Section 16 of the Code sets out the NCR defence as follows: Defence of mental disorder 16

(1) No person is criminally responsible for

an act committed or an omission made while suffering from a mental disorder thatrendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong. [11]

Section 2 of the Code defines "mental disorder" as a "disease of the mind." Using medical, psychiatric, or psychologicalevidence, the trial judge must decide whether a mental condition should be legally characterized as a "disease of the mind" (R v Cooper, (SCC), [1980] 1 SCR 1149 (Cooper); R v Parks, (SCC), [1992] 2 SCR 871 at 898-900; R v Stone, (SCC), [1999] 2 SCR 290 at paras 195-197 (Stone); and R v Bouchard-Lebrun, 2011 SCC 58 (Bouchard-Lebrun) at paras59-62). [12] Every person is presumed not to suffer a mental disorder so as to be exempt from criminal responsibility until the contrary isproven on a balance of probabilities: see s16(2) of the Code

[13] Justice Dickson, as he then was, writing for the majority in Cooper, summarized what is meant by disease of the mind at1159: In

summary, one might say that in a legal sense "disease of the mind" embraces any illness, disorder or abnormal condition which impairsthe human mind and its functioning, excluding however, self-induced states caused by alcohol or drugs, as well as transitory mentalstates such as hysteria or concussion.

In order to support a defence of insanity the disease must, of course, be of such intensity as torender the accused incapable of appreciating the nature and quality of the violent act or of knowing that it is wrong. [14] Writing for a unanimous Court in Bouchard-Lebrun, Justice LeBel described the scope of the legal concept of "mentaldisorder" as follows: 59 The line of authority based on Cooper clearly confirms that the scope of the legal concept of "mental disorder" is very broad.

InCooper, Dickson J. stated that the "disease of the mind" concept includes "any illness, disorder or abnormal condition which impairs thehuman mind and its functioning" (p. 1159). In Rabey, Dickson J. explained that "the concept is broad, embracing mental disorders oforganic and functional origin, whether curable or incurable, temporary or not, recurring or non-recurring" (p. 533).

While it must beborne in mind that a verdict of not criminally responsible triggers a special mechanism for the management of the accused, the inclusivenature of the definition of "mental disorder" can be explained in particular by Parliament's wish to give the public a high level ofprotection from persons who could be a threat to others (J. Barrett and R.

Shandler, Mental Disorder in Canadian Criminal Law (loose-leaf), at p. 4-12). [15] The "mental disorder" concept continues to evolve, which means that it can be adapted continually to advances in medicalscience (R v Simpson (1977), (ON CA), 35 CCC (2d) 337 (ONCA)). As a result, it will undoubtedly never be possibleto define and draw up an exhaustive list of the mental conditions that constitute "disease[s] of the mind" within the meaning of s2 of theCriminal Code.

As Martin J.A., writing for the Ontario Court of Appeal, stated in R v Rabey (1977), (ON CA), 17 OR(2d) 1 (ONCA), this concept "is not capable of precise definition" (p 12).

It is thus flexible enough to apply to any mental condition that,according to medical science in its current or future state, is indicative of a disorder that impairs the human mind or its functioning, andthe recognition of which is compatible with the policy considerations that underlie the defence provided for in s16 of the Criminal Code. [16] The Supreme Court of Canada has directed judges to perform a "more holistic" assessment of whether a mental conditionconstitutes a "disease of the mind," taking into consideration whether the relevant conduct was "internally caused," whether the accusedposes a continuing risk of danger to others, and whether policy factors count against classifying the accused's condition as a "disease ofthe mind" (Stone, at paras 203-218 and Bouchard-Lebrun, at para 69-70). [17] It is the function of the expert psychiatrist, Dr.

Ajeh, and expert psychologist, Dr. Massey, in this case to describe Mr. SmallLegs’ mental condition and how it is considered from the medical point of view. However, it is the responsibility of this Court to decidewhether his condition so described by them legally constitutes a "disease of the mind" (Cooper at 1157 -- 1158). The decision as towhether Mr. Small Legs has a disease of the mind is the first part of the test for a finding of NCR. [18] If this Court does find that Mr.

Small Legs has a disease of the mind, in accordance with s16 of the Code, it then must thenproceed to the next part of the test which is a capacity assessment, that is to decide whether he was incapable of appreciating the natureand quality of the act or omission, or of knowing that it was wrong. The case law shows that the capacity part of the NCR test has higherthreshold to meet. [19] The burden of proof to prove NCR is on the party that raises the issue in this case being Mr. Small Legs: see s16(3) of theCode.

What Evidence can an Expert Rely on for an NCR Assessment? [20] With respect to matters calling for special knowledge, an expert in the field may draw inferences and state his opinion. Anexpert's function is to provide the judge with a ready-made inference which the judge, due to the technical nature of the facts, is unableto make. [21] An expert witness, like any other witness, may testify as to the truth of facts of which he has first-hand experience, but this isnot the main purpose of his or her testimony. An expert is there to give an opinion.

And the opinion, more often than not, will be basedon second-hand evidence. This is especially true of the opinions of psychiatrists. [22] The challenge in this case is that the only evidence given at the NCR hearing was the testimony of the two experts, Dr.Massey and Dr. Ajeh, and their respective reports. More specifically, Mr.

Small Legs did not testify at the Trial, or at the NCR hearing,so his account of the incident was only known through what he told the two experts. [23] Usually, expert medical evidence is needed to determine whether the accused has a disease of the mind, and to determine theother elements of an NCR defence, which include the effect of the accused’s condition on his basic cognitive functioning.

It is generallyrecognized that these issues fall outside the everyday knowledge and experience of the trier of fact: R v Abbey, (SCC),[1982] 2 SCR 24 (Abbey). [24] In considering the issue of criminal responsibility, an expert is entitled to rely on all possible sources of information, includingsecond-hand sources such as the opinions or assessments of other experts, out-of-court statements by the accused, medical records andany other relevant information from third parties: R v Wilband (1966), (SCC), [1967] SCR 14. [25] However, special care must be taken with respect to the treatment of the Accused’s out-of-court statements to the experts,such as occurred in this case.

In the Abbey case the Appeal Court found that the trial judge erred in law by treating as factual the hearsayevidence upon which the opinions of the psychiatrist were based.

[26] Experts can also testify as to the facts relied upon in forming their opinion regardless of its hearsay nature. The SupremeCourt of Canada stated as follows in the case of R v Lavallee, (SCC), [1990] 1 SCR 852 (Lavallee): 66 For present purposes I think the ratio of Abbey can be distilled into the following propositions: 1. An expert opinion is admissible if relevant, even if it is based on second-hand evidence. 2. This second-hand evidence (hearsay) is admissible to show the information on which the expert opinion is based, not as evidencegoing to the existence of the facts on which the opinion is based. 3.

Where the psychiatric evidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion. 4. Before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist. [27] The reliance upon hearsay evidence by expert witnesses is a matter that affects the weight of the opinion because the weightwill vary depending on the factual evidentiary foundation. The opinion evidence will be of diminishing value to the extent that it reliesupon facts that have not been established in evidence at trial: R v Baker, 2009 ABCA 252.

The two experts in this case relied on muchevidence that was not established at the Trial, or the NCR hearing, including what Mr. Small Legs told them when he met with them. What is the Effect of Mr. Small Legs Not Testifying at the Trialor NCR Hearing? [28] It was open for Mr. Small Legs not to testify at the Trial and the NCR hearing. However, that does raise some evidentiaryquestions as to the weight that should be given to the evidence of the experts Dr. Massey and Dr. Ajeh, who both relied to some degreeon the statements given to them by Mr.

Small Legs about the incident, but which statements were not put into evidence at either the Trialor the NCR hearing. [29] The Abbey case had similar circumstances to this case in that Mr. Abbey was caught at the airport, bringing a large amount ofdrugs into Canada. He did not testify at the Trial, but he raised an NCR defence. The Defence called a psychiatrist, who testified that hewas NCR, and the Crown called a psychiatrist who testified that he was not.

The Supreme Court said as follows at paragraph 45: It was appropriate for the doctors to state the basis for their opinions and in the course of doing so, to refer to what they were told notonly by Abbey but by others, but it was error for the judge to accept as having been proved the facts upon which the doctors had reliedinforming their opinions.

While it is not questioned that medical experts are entitled to take into consideration all possible information informing their opinions, this in no way removes from the party tendering such evidence the obligation of establishing, through properlyadmissible evidence, the factual basis on which such opinions are based.

Before any weight can be given to an expert's opinion, the factsupon which the opinion is based must be found to exist. [30] In the case of R v Lindsay, 2018 ABCA 194, the Alberta Court of Appeal considered an appeal from a case where the accusedhad not testified, and the trial judge considered how much weight to give to a psychiatrist’s opinion, where it was based in part on whatthe accused had told him.

The Court stated as follows: [18] ...When weighing expert evidence the trier of fact is entitled to examine the factual foundations of the opinion and afford it lessweight when it is based upon facts not established at trial: R v Abbey, (SCC), [1982] 2 SCR 24; R v Lavallee, (SCC), [1990] 1 SCR 852; R v Molodowic, 2000 CSC 16 , [2000] 1 SCR 420 at para 7.... [19] The appeal turns on the trial judge’s weighing of the expert evidence. The appellant suggests that there was ample evidence tosupport his NCR defence. However, much of it was based on what the Supreme Court in Abbey termed “second hand evidence”.

In R vBingley, 2017 SCC 12 at paras 13-17, [2017] 1 SCR 170 the Court confirmed the following proposition: “[w]here the psychiatricevidence is comprised of hearsay evidence, the problem is the weight to be attributed to the opinion”. [20] Mr. Lindsay did not testify but Dr Nesca’s report was informed in part by what Mr. Lindsay told him. The trial judge held that“what is critical is to determine how much of Lindsay’s hearsay statements to an expert are reflected in the evidentiary record.

If not, thereliability and weight of the expert’s opinion may be significantly compromised”: [21] No error is demonstrated by this approach. The expert evidence was also informed by what Mr. Lindsay’s parents told the expert.Although they testified, their testimony did not include some of what they told Dr Nesca, and upon which he relied in forming hisopinion.

Experts routinely rely on second-hand information but the “more an expert relies on facts not proven in evidence, the lessweight should be given his opinion”: R v Borowiec, 2015 ABCA 232 at para 72, 602 AR 254, aff’d 2016 SCC 11, [2016] 1 SCR 80. [22] The trial judge admitted Dr Nesca’s testimony and report but placed restricted weight on it because Dr Nesca’s opinion relied on“evidence not before the Court”; he was “overly reliant” on psychometric testing which occurred several years after the murder, heaccepted the appellant’s word “uncritically” and some of the testing results were inconclusive or invalid; further Dr Nesca’s testimony“suggest[ed] a results-driven rather than data-based analysis”. [23] The trial judge gave Dr Hediger’s conclusion that the appellant had a disease of the mind virtually no weight.

He did so because heconcluded that his opinion suffered from “lack of evidentiary foundation”; essentially, Dr Hediger referred to “psychiatric hospitaladmissions” and “medical records” without specifying what exactly these admissions or records were. Such generalities did not meet thetest in Abbey for admissibility of facts in support of an expert report. [31] The Lindsay case has some similarities to the case at bar, in that both the experts relied to some degree on what Mr. SmallLegs told them about the incident. They also both relied on medical records, school records and information from his mother, Shelley

Small Legs, none of which was in evidence at the Trial or NCR hearing. It could well be argued, as in the above Lindsay case, that there was a lack of evidentiary foundation for the expert opinions. [ 32 ] In the text J. Barrett and R. Shandler, Mental Disorder in Canadian Criminal Law (loose-leaf), at p 4-86 it states: The need for the accused to testify and provide direct evidence of his state of mind at the time of the offence will vary depending on the totality of the evidence.

For instance, if the facts of the offence are bizarre and there is evidence before the trier of fact of the accused exhibiting unusual uncharacteristic behaviour before, during or after the offence, this may afford a sufficient factual foundation which experts can opine as to the accused’s mental state at the time of the offence.....In the absence of bizarre behavior, the failure of the accused to testify as to his perception of events leading up to the offence and his state of mind may be fatal to the NCR defence. [ 33 ] However, there are many cases in which an accused has chosen not to testify and has been successful in advancing an NCR defence.

In R v Mock , 2016 ABCA 293 the accused did not testify, and there was conflicting psychiatric opinion evidence, and an NCR defence was entered. However, that case is different from the case at bar in that the accused there had documented history of bi-polar disorder with a prior hospital admission for psychosis. The police who attended found the accused incoherent and displaying unusual behaviour. [ 34 ] In this case there was no history of psychosis, nor did Mr. Small Legs display any bizarre or unusual behaviour at the time of the incident. Are Mr.

Small Legs’ Statements to the Experts Protected? [ 35 ] During his interviews with the two expert witnesses, Dr. Massey and Dr. Ajeh, Mr. Small Legs made some statements to them about what happened. As noted, he did not give evidence at the Trial, or the NCR hearing, so such statements are not admissible in evidence for their truth. The question arises as to what use may be made of such statements. In fact, it appears that such statements should be considered as protected, under the provisions of the Code .

Protected Statements Definition of "protected statement" 672.21(1) In this section, "protected statement" means a statement made by the accused during the course and for the purposes of an assessment or treatment directed by a disposition, to the person specified in the assessment order or the disposition, or to anyone acting under that person's direction.

Protected statements not admissible against accused 672.21(2) No protected statement or reference to a protected statement made by an accused is admissible in evidence, without the consent of the accused, in any proceeding before a court, tribunal, body or person with jurisdiction to compel the production of evidence. Exceptions 672.21(3) Notwithstanding subsection (2), evidence of a protected statement is admissible for the purpose of ... 672.21(3)(

e) determining whether the accused was, at the time of the commission of an alleged offence, suffering from automatism or a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1), if the accused puts his or her mental capacity for criminal intent into issue, or if the prosecutor raises the issue after verdict; [ 36 ] It appears that Mr. Small Legs’ statements made to the experts in this case should be considered as protected statements under s672.21. However, it also appears that they would fit into the exception s672.21(3)(

e) and therefore be admissible only for the purpose of determining whether he should be found NCR. To be clear, such statements are not admissible to prove the truth of their contents in this NCR hearing. The Expert Reports of Dr. Massey - Forensic Psychologist [ 37 ] Dr. Massey was qualified as an expert in this hearing as a forensic psychologist. His evidence was in the form of two written reports, and his oral testimony at the NCR hearing. His first written report was dated June 17, 2019 (the “2019 Report”).

The second written report was dated May 2021 (the “2021 Report”). [ 38 ] The 2019 Report - The 2019 Report was requested by Mr. Small Legs’ lawyer at the time, after this alleged offence, but before the Trial. The reason for the report is stated to be to evaluate his neurocognitive functioning and his mental health functioning to determine his current status and what supports he would need in the future. It should be noted that there was no request at that time for a fitness or NCR assessment. Dr. Massey administered a number of tests as set out in the report.

He also considered the undertaking given to the peace officer relating to this charge, the promise to appear, and an email from Mr. Small Legs’ mother, Shelley Small Legs. This report also states that Dr. Massey interviewed Shelley Small Legs to get further information about Mr. Small Legs. Dr. Massey interviewed Mr. Small Legs, and during that interview asked Mr. Small Legs about his background, and also got his version of what happened during the alleged sexual assault. Shelley Small Legs advised Dr. Massey that Mr.

Small Legs had a difficult birth as he was hospitalized until he was nine weeks old, because he had difficulty breathing in the first minutes and forceps were used for the delivery. Dr. Massey found that it was likely that Mr. Small Legs had suffered a brain injury due to oxygen deprivation, or hypoxia, which has

impaired his neurocognitive functions permanently. Dr. Massey found deficiency in Mr. Small Legs’ cognitive abilities. Mr. Small Legs’ verbal and nonverbal abilities were such that he performed developmentally at a range of an eight- to 11-year-old. He had a severe learning disability with reading comprehension at the grade 9 level, word reading at the Grade 8 level, spelling at the grade 5 level, and mathematics at the Grade 2 level. Dr. Massey found Mr. Small Legs had organic brain syndrome, which he described as a combination of neurocognitive impairment and neuropsychiatric disturbance. He found that Mr.

Small Legs had severe and permanent neurodevelopmental disabilities, including impairments in cognition, learning and memory. Dr. Massey was also of the opinion that he had an underlying mood disorder, and a generalized anxiety disorder with panic attacks. In addition, Dr. Massey found that he presented with a substance use disorder, as he was still using alcohol and marijuana, which would impair his judgment even further. [ 39 ] The 2021 Report - At the Trial Mr. Small Legs was convicted of sexual assault and unlawful confinement. After the Trial, but before sentencing, Mr.

Small Legs got a new lawyer, who applied for a ruling that Mr. Small Legs was NCR. Dr. Massey was asked to do another assessment of Mr. Small Legs. This was done and a report dated May 25, 2021, was provided to the Court (the “2021 Report”). This new report states that Dr. Massey repeated many if not most of the tests from the previous 2019 Report. He also reviewed the following additional documentation: Presentence Report Judgment of this Court dated December 14, 2020 Transcript of interview with AH Initial disclosure package Transcript of interview with Mr.

Iron Shirt Report to Justice Transcript of interview with Mr. Strikes with a Gun Transcript of interview with Mr. Abraham Email from Shelley Small Legs 2019 Report from Dr. Massey [ 40 ] In this 2021 Report, Dr. Massey states that Mr. Small Legs was referred to a psychiatrist, Dr. Patel, and had a virtual appointment with him. Dr. Patel said in his report date in October 2020 that Mr. Small Legs presented with a lifelong history of unspecified anxiety, anger problems, verbal outbursts in the context of significant intellectual, cognitive and learning disabilities. He said that Mr.

Small Legs had recently started on the drug citalopram and suggested that he stay on it. Dr. Patel confirmed a past history of alcohol abuse and daily marijuana use. Dr. Massey found that the results of the new testing were generally consistent with those from the 2019 Report. He said that Mr. Small Legs’ thinking abilities were in the ages of eight to ten developmentally . On a measure of cognitive functioning and brain impairment, his performance placed him in the mild cognitive impairment range, because of the organic brain syndrome due to the anoxia he suffered in infancy. Dr. Massey said that Mr.

Small Legs demonstrated significant deficits in his executive functions on objective measures, indicating substantial impairment of the brain and particularly the frontal lobe and temporal lobe regions. Dr. Massey said these areas were crucial for future learning and functioning as an adult. He said that Mr. Small Legs continued to demonstrate significant leaning disabilities which made him unsuitable for academic upgrading or classroom-based training programs. Dr. Massey said he would struggle to read and understand important documents, including court documents, and did not understand court procedures. Dr.

Massey stated that Mr. Small Legs continued to present with symptoms of an underlying mood disorder (bipolar disorder) and a generalized anxiety disorder and panic attacks. Dr. Massey stated that Mr. Small Legs presented with symptoms of a substance use disorder. Dr. Massey stated that Mr. Small Legs was now on AISH and was still living with his mother. Dr. Massey said that Mr. Small Legs was also lacking in memory ability and basic thinking skills, suggesting that he was unable to plan or show proper judgment skills for his age, and was not aware of how his actions may impact others, and vice versa. Dr.

Massey said that Mr. Small Legs was a dependant adult, and that this Court should seriously consider an NCR classification for him. [ 41 ] Dr. Massey’s Testimony at the NCR Hearing - Dr. Massey testified under oath in the NCR hearing on February 10, 2022. He said that the purpose of the second assessment was to administer the same and new tests, to see what had changed with respect to his neurocognitive functions, and to see whether Mr. Small Legs was competent to be his own guardian and trustee. He said that as a result of the tests, he found things were much worse for Mr. Small Legs. Dr.

Massey was of the view that Mr. Small Legs’ brain was so impaired that he could not act as his own guardian and trustee, that he would not be able to show proper judgment for his age, that his memory had deteriorated, and he still had organic brain syndrome. In addition, he testified that Mr. Small Legs’ memory had deteriorated to the point that Dr. Massey gave him a test for dementia, and he showed early signs of dementia. Dr. Massey also said he still felt that Mr. Small Legs had a mood or bipolar disorder, and a generalized anxiety disorder with panic attacks. Dr.

Massey described the effect of the organic brain disorder on Mr. Small Legs. He said that it causes a lack of development in the frontal lobes of the brain, which are the judgment and reasoning centres. When he grew to become an adult, these centres did not wire themselves and they do not work properly. Dr. Massey testified that without those parts of the brain functioning properly, when something happened to Mr. Small Legs, he was driven by impulse, and there was nothing to control the impulse. Dr. Massey said that Mr.

Small Legs then has to rely on the lower brain functions, which he referred to as the reptilian brain, which is instinct based. In Mr. Small Legs’ case, such a response would not be modulated. He said that another way to describe the situation in more simplistic terms was to say that the lower level of the brain is like the gas pedal in a car, and the high levels of the brain are the brakes and steering wheel. Dr. Massey said that if you only have the gas pedal available to you, and no brakes or steering, then a crash is inevitable, which is what happened here. [ 42 ] Dr. Massey testified that 90% of Mr.

Small Legs’ brain was impaired with respect to memory, judgment, reasoning and intelligence. Dr. Massey said that Mr. Small Legs had the cognitive functioning of an eight to ten-year-old, when it comes to cognitive functioning as a whole. Dr. Massey testified that Mr. Small Legs should stop consuming marijuana to preserve what little brain

functions he has left. Dr. Massey stated that the organic brain syndrome affected Mr. Small Legs’ cognitive functioning, lack of inhibition, impulse control, and his judgment or reasoning. Dr. Massey testified that the mood and bipolar disorder, and anxiety diagnoses are separate disorders. Dr. Massey said that Mr. Small Legs has impaired social skills and would have trouble reading social cues in others. Dr. Massey testified that his behaviors would be worse if he was intoxicated, because more of the brain would be impaired artificially . In examination in chief, Dr. Massey was asked how Mr.

Small Legs would react if he was intoxicated and went into a room alone with a female. Dr. Massey’s response was that he would have even less of his brain working properly and more of the instinctual response being ramped up. Dr. Massey said that just the fact of being in the room with a female may be enough to trigger Mr. Small Legs towards sexual activity. Dr. Massey said that he did not think Mr. Small Legs would be able to appreciate what was happening in the room with the female because he would be driven by his own gas pedal. Dr. Massey was not able to say if Mr.

Small Legs understood specifically what he was doing in that room. Dr. Massey testified that he did not think Mr. Small Legs could understand the cues given by AH in the room, and that he could not appreciate the issue of consent or non-consent. Dr. Massey testified that in that situation, because of the organic brain syndrome, Mr. Small Legs would get a storm of electrical chemical activities coming from his lower brain that caused him to act, with no repression of that through the judgment centres of the brain that were not working, which was also enhanced by the alcohol or drug use. [ 43 ] Dr.

Massey testified that for the purposes if this 2021 Report he did not speak to Mr. Small Legs about the circumstances of the offence, mainly because he felt Mr. Small Legs memory was impaired. Dr. Massey said that he relied on his mother Shelley Small Legs for additional information, in addition to the documents he reviewed. He said that he did not put much credence in those things in the preparation of his report. [ 44 ] Dr. Massey in Cross-Examination - In cross-examination, Dr. Massey said that if Mr.

Small Legs was faced with someone who yelled at him loudly, saying, “stop what you are doing”, he may be able to recognize that the person was angry if his brain was receptive. Dr. Massey said that if he was drunk or high or had sexual urges he may not get the message that the person was angry. However, if his brain was working, and not high or drunk, he may recognize the person speaking to him was angry. Dr. Massey confirmed that if Mr. Small Legs was intoxicated his judgment and reasoning would be worse. Dr. Massey testified that Mr.

Small Legs had told him, when the 2019 Report was being prepared, that AH had consented to have sex with him, and that she had made advances towards him . Dr. Massey said that Mr. Small Legs thought AH consented to have sex with him. Dr. Massey said that he thought Mr. Small Legs understood that he had sex with AH and knew that meant Mr. Small Legs was touching her body. Dr. Massey testified that Mr. Small Legs told him that he wanted to have sex with AH, and that she wanted to have sex with him. Dr. Massey said that Mr. Small Legs had told him that he had an erection, did not have a condom, and they had sex. Dr.

Massey testified that at the time, Mr. Small Legs knew what the words “no” and “stop” meant. Dr. Massey was asked about the evidence at the Trial whereby the Court found that Mr. Small Legs had pushed AH onto the bed, kissed her on the chest and got on top of her, and whether he understood he was doing those things. Dr. Massey said he could not give an opinion on whether Mr. Small Legs understood he was doing those things. Dr.

Massey was asked about the evidence that when they were in the bedroom AH told him “no, can you please stop”, he replied, “it’s okay, be quiet” and it was suggested that showed logical and linear reasoning. Dr. Massey said that it was not logical thinking. When Dr. Massey was asked about the evidence that the people outside the bedroom told Mr. Small Legs to “open the door”, he could not give an opinion of whether Mr. Small Legs understood what that meant. It was then suggested to Dr. Massey that Mr. Small Legs’ response to that demand, namely “go away” was logical and directly correlated, but Dr.

Massey said he could not give an opinion on that. [ 45 ] Dr. Massey was asked about whether he ever discussed with Mr. Small Legs the propriety of getting a woman’s consent before he kissed her, or what it meant when he did kiss her and she said “no”, and he said he did not have such discussion. Dr. Massey said he did not have an opinion on what Mr. Small Legs’ brain could comprehend if he kissed a woman and she said “no”. When asked if Mr. Small Legs understood at the time that reasonable members of society believe that if you kiss a girl and she says “no”, that you have to stop. Dr.

Massey said he could not answer that. Dr. Massey was then asked if a woman said “no” consistently from the start, as Mr. Small Legs continued to touch her sexually, whether Mr. Small Legs would understand the words “no” or “stop”. Dr. Massey responded that it would depend on how aroused Mr. Small Legs was, and if he was very aroused, he might not be able to stop. Dr. Massey said that the sexual urge trumps all other levels of thinking and would trump his higher level of consciousness at the moment, meaning that if Mr.

Small Legs hears the word “no” he does not understand it in that context because he does not have higher cognitive judgment skills when he is sexually aroused. When asked at what point the sexual arousal for Mr. Small Legs gets so high that he loses the ability to understand that “no” means “no”, Dr. Massey said he was not sure. When asked if he could give an opinion whether one kiss would get Mr. Small Legs so aroused that he could not understand her saying “no”, Dr. Massey said he could not. Dr. Massey confirmed that Mr. Small Legs would function much worse as an intoxicated person. In

summary on the cross-examination, Dr. Massey confirmed that he could not give an opinion on whether Mr. Small Legs could understand that if he was sexually touching a woman, and she said “no” to the touching, it was wrong for him to keep touching her. Dr. Massey did confirm his opinion that in his view if Mr. Small Legs was sexually aroused enough, he would not be able to hit the brakes and stop . [ 46 ] Dr. Massey Testimony in Re-Examination - In re-examination, Dr. Massey confirmed that he felt an NCR classification was appropriate for Mr.

Small Legs because he suffers from a mental disorder and is incapable of appreciating the nature and quality of the act or omission, or of knowing that it was wrong. Dr. Massey confirmed that Mr. Small Legs told him that AH consented to have sex with him. Dr. Massey was then asked whether Mr. Small Legs had the ability to understand consent and non-consent. Dr. Massey answered that Mr. Small Legs could misread cues, however Mr. Small Legs told him that AH had taken her clothes off, which may have cued him. Dr. Massey also acknowledged that it may have been something she said, but Mr.

Small Legs was under the impression that they were going to have sex and it was going to be okay. Dr. Massey went on to say that he did not know what she said to him once they got started, or how Mr. Small Legs reacted to it. Dr. Massey was then asked about how much weight he gave to Mr. Small Legs’ narrative to him as to what happened that night, and Dr. Massey responded that he did not rely on it much, mainly because he felt that Mr. Small Legs had an impaired memory. Dr. Massey went on to say that the foundation of his opinion was the results of his assessments of Mr.

Small Legs’ memory, recall, judgement, reasoning and intellectual functions. The Expert Report of Dr. Ajeh - Forensic Psychiatrist [ 47 ] Dr. Ajeh was appointed by the Court to provide a report on NCR in this matter. She was employed in the forensic assessment

and outpatient services department of the Southern Alberta Forensic Psychiatry Centre (FAOS). She has been employed there as an attending forensic psychiatrist since 2014. She was qualified as an expert witness in the NCR hearing in this case. She gave a written report, dated July 11, 2022. She also testified as a witness in the NCR hearing. [ 48 ] Dr. Ajeh’s Written Report - In her written report entered as an exhibit in the NCR hearing she stated she reviewed the following documents: Presentence Report Judgment by this Court dated December 14, 2020.

Transcripts of NCR hearing – February 10, 2022 Transcript of interview with AH Disclosure package Transcript of interview with Mr. Iron Shirt Transcript of interview with Mr. Strikes With a Gun Transcript of interview with Mr. Abraham Neuropsychological Assessment report – Dr. Massey June 2019 Neuropsychological Assessment report – Dr. Massey May 2021 Telephone Consultation report Dr. Patel – October 15, 2020 Telephone Consultation report Dr. Janzen Discharge

Summary Dr. Parker – November 1, 2019 Medical records, The Associate Clinic, Pincher Creek, Alberta [ 49 ] When Mr. Small Legs first attended at FAOS, he was given a battery of psychological tests, which were supervised by a psychologist, Dr. Marley Young. Dr. Ajeh also did a psychiatric assessment, which took place over two sessions. At the first session Mr. Small Legs attended with his mother. At the beginning of the session things were going well until she talked to him about the index offence, at which time Mr.

Small Legs became very emotionally aroused, defensive and verbally abusive, and he left the interview. He came back for a second interview on April 26, 2022, and he was more co-operative on that occasion. [ 50 ] In her written report, Dr. Ajeh proceeded to review the contents of the general police report, as well as the relevant background history she obtained from Mr. Small Legs. Her information was that Mr. Small Legs had breathing difficulties at birth, which persisted upon discharge from hospital which required readmission to the ICU for 10 to 12 weeks.

He was reportedly born with a heart condition and his developmental milestones were reported as delayed. In her written report, Dr. Ajeh gave an opinion that she felt that Mr. Small Legs was fit to stand trial. She felt that although Mr. Small Legs had difficulties with severe substance use disorder, and intellectual disabilities, he could understand the nature or object of the proceedings, understand the possible consequences of the proceedings and convey relevant information to counsel to mount a defence on his behalf. Dr. Ajeh then went on to consider the issue of criminal responsibility. Dr.

Ajeh noted that Mr. Small Legs’ mother was there during the interviews. Dr. Ajeh asked Mr. Small Legs about the circumstances surrounding the index offence. I do note that none of these circumstances which Mr. Small Legs related to Dr. Ajeh were in evidence at the Trial, and so are not admissible as evidence for the truth of them because they are considered hearsay. It should also be noted that according to Dr. Ajeh’s written report, she also got collateral history from Mr.

Small Legs’ mother, Shelley Small Legs, who was there that night, but who also did not give evidence at the Trial, so what she said must also be considered inadmissible hearsay. [ 51 ] In her written report, Dr. Ajeh also referred extensively to the two reports of Dr. Massey. With respect to Mr. Small Legs’ mental state before the index offence, Dr. Ajeh said that there were reports of hypoxic injury to the brain at birth and resultant intellectual disability that impacted his functioning.

She noted that he required some educational support in school, but there were no reports of serious behavioral difficulties in school that resulted in him being suspended or expelled. She said there were no reports of impulsivity resulting in behavioural difficulties or antisocial behavior. His involvement in psychiatric services were limited to counselling for anxiety and anger. She said he was not prescribed any medication for these, which is an indication of the severity. Dr. Ajeh said collateral history from his mother confirmed regular alcohol use and anger management problems relating to alcohol use.

His mother indicated that Mr. Small Legs had no previous difficulties with sexual disinhibition. [ 52 ] With respect to Mr. Small Legs’ mental state around the time of the index offence, Dr. Ajeh said that Mr. Small Legs had been drinking heavily with his friends days before the index offence. He related that he was passed out from alcohol before he was woken up by his friends to go pick up AH. He related that they continued to drink on the way and on return to his home. Dr.

Ajeh said in her written report that elevated alcohol levels can be associated with impaired judgement, reduced inhibition which progresses to impaired attention, slowed reflexes, staggering gait, slurred speech, irritability or aggression . Dr. Ajeh stated that Mr. Small Legs gave her a detailed account of the incident as he believed that it occurred on that day. She said he did not report at any stage being unaware of what was going on. Dr. Ajeh gave the opinion that Mr. Small Legs’ diagnosis of intellectual disability alone would not explain the index offence. [ 53 ] With respect to Mr.

Small Legs’ mental state subsequent to the index offence, Dr. Ajeh wrote that Mr. Small Legs continued

to cope with his intellectual disability, continuing to use cannabis, but reported abstinence from alcohol. Dr. Ajeh said that his mother, who is now his guardian, reported anger management problems but no reports of sexual disinhibition or impulsivity related to sexual acts. With respect to the role the use of alcohol and cannabis played in the commission of the index offence, Dr. Ajeh said that when alcohol and cannabis are used together, their effect is potentiated, meaning that the combined effect to the two substances exceeds the expected additive effect of each of them independently.

She said that intoxication with alcohol impairs judgment, perception and self control. She noted that Mr. Small Legs voluntarily ingested alcohol which indicates that this was self induced and a temporary chemically induced malfunction of the brain. Dr. Ajeh wrote that based on her interview with Mr. Small Legs, she did not feel that Mr. Small Legs was so intoxicated that he was in a state of automatism. [ 54 ] In regard to Dr. Massey’s position that Mr. Small Legs suffered from organic brain syndrome, Dr.

Ajeh set out in her report that the field of psychiatry has moved away from the view that some illnesses are organic as opposed to functional illnesses of the mind. She stated that organic mental disorder is now an outdated term that has been replaced by neurocognitive disorders. She said that organic mental disorders referred to such things as delirium and dementia, which diagnoses are confirmed with a combination of clinical interview, psychologic testing and clinical investigations including radiologic evidence. Dr. Ajeh referred to Dr.

Massey’s description of organic brain syndrome as a degenerative illness that has gotten worse over the years but said that her review of the medical records did not show any confirmation of that by way of a CT scan or MRI of the brain. She went on to say that there is no evidence that Mr. Small Legs has a degenerative mental disorder such as dementia presently. She said his pattern of heavy alcohol and cannabis use and family history significantly predispose him to developing a degenerative brain disease in the future. Dr. Ajeh then went on to discuss the inconsistencies of what Mr.

Small Legs told both her and Dr. Massey, and the facts as found by the Court at the Trial. [ 55 ] Again, I note that what Mr. Small Legs told the experts as to what happened that day was not in evidence, and therefore not admissible for the truth of the statements. Dr. Ajeh noted that Mr. Small Legs told Dr. Massey that they both agreed to have sex. Dr. Ajeh wrote that Mr. Small Legs was able to describe what happened inside his bedroom but justified his actions by stating that she did not say stop. Dr. Ajeh wrote that Mr.

Small Legs further told her that he was aware that AH was intoxicated and seemed to mistake him for someone else, and that he was aware she wanted to leave the room but could not. Dr. Ajeh was of the opinion that this inconsistency appeared to be congruent with his attempts to come to terms with the overwhelming consequences of his actions and influence the outcome. I note this part of her opinion is based largely on Mr. Small Legs’ statements to the experts and is inadmissible hearsay. Dr. Ajeh went on to write that she thought Mr.

Small Legs appreciated the nature and quality of the act despite his intellectual disability, because he explained to Dr. Ajeh that he wanted to make out with her and because he was attracted to her. Dr. Ajeh stated that he understood that taking her to his bedroom and taking off her clothes would allow him to have sex with her. [ 56 ] In conclusion, Dr. Ajeh wrote that she agreed that Mr. Small Legs had an intellectual disability and severe alcohol and cannabis use disorder. Dr. Ajeh noted that the psychological testing of Dr. Marley from FAOS basically agreed with that of Dr. Massey, which was that Mr.

Small Legs’ academic functioning, word reading was at the Grade 8 level, spelling at the Grade 5 level, mathematical abilities at the Grade 2 level, and the ability to read was at the Grade 9 level . Dr. Ajeh disagreed with Dr. Massey’s diagnosis of generalized anxiety disorder with panic attacks or of a mood disorder because a review of the medical records, and assessment at FAOS did not support that. Dr. Ajeh stated that any decline in cognitive functioning and inhibition did not necessarily speak to his criminal responsibility at the time of the index offence.

In the end result, she gave the opinion that she did not feel that Mr. Small Legs was eligible for an NCR defence. [ 57 ] Dr. Ajeh’s Testimony at the NCR Hearing - Dr. Ajeh testified at the NCR hearing on February 6, 2023. She described the process of doing the psychiatric assessment on Mr. Small Legs. She said she reviewed the documentation set out in her report, and she also took a personal history from him. She said that she also spoke to his mother. His mother was asked how he presented at home. She was asked if Mr. Small Legs has assaulted anyone, or sexually assaulted anyone before. Dr.

Ajeh asked about any criminal history, and his school history. Dr. Ajeh stated that although questions about schooling or employment do not relate to his criminal responsibility, those questions give a lot of information. She said that if it was his cognitive impairment that caused him to commit the index offence, then that would have been demonstrated multiple times before because he had been impaired since birth. Dr. Ajeh went on to testify that in gathering the personal history and going through the background history, she noticed that something like this had never happened before.

Therefore, she said that it was highly unlikely that the cognitive impairment caused these offences, and that it was something else. She said that she also reviewed the previous medical records, which demonstrated that he did not have a history of involvement with psychiatric services. She said the medical records showed that what was termed a panic attack was actually tachycardia, and that Mr. Small Legs had learned how to manage it. Dr. Ajeh testified that she did a fitness assessment of Mr. Small Legs mainly because Dr. Massey had done so in his reports, so she felt she had to respond to that issue.

She found that in her opinion, based on her assessment, Mr. Small Legs was fit to stand trial. [ 58 ] Dr. Ajeh testified that she wished to amend the second conclusion in her report, on page 20, to a diagnosis of severe alcohol and cannabis use disorder and mild intellectual disability. She confirmed that she did not support a diagnosis of a major mood disorder such as a bipolar disorder or a psychotic disorder. Dr. Ajeh also testified that she did not agree with Dr. Massey’s diagnosis of dementia, because the correct test was not done for that, nor was there radiologic evidence, which is required.

She said that she did not think Mr. Small Legs has dementia, but agreed he had an intellectual disability because of the hypoxia. She said that other than the decline in reading ability, Mr. Small Legs had not shown a decline in function. Dr. Ajeh testified that she considered reports from his mother that he needed support. However, Dr. Ajeh did not see any report of serious behavioral difficulties at school, in that he was not suspended, expelled or shown to have any antisocial behaviours. She said there was a report of anxiety and anger management, but he was not prescribed medication for it.

She did note that he had a history of significant alcohol use before the index offence. Dr. Ajeh testified that she also explored Mr. Small Legs’ relationships to see if there was a history of sexual disinhibition before this offence. She said that his mother described him as a complete gentleman, that he was naïve, and had only been on a date once and this was never an issue. Dr.

Ajeh testified that for her to accept that the index offence was caused by impaired judgment from his neurocognitive disorder, this kind of conduct would have to have happened before, because the mental disorder had been present from birth. She testified that the index offence was unlikely to have been caused by the mental disorder, and more likely to have been caused by some motivation or intoxication by a substance. She testified that the most likely diagnosis for Mr. Small Legs is that there was a hypoxic injury, being a lack of oxygen supply, which caused an intellectual disability. [ 59 ] With respect to Dr.

Massey’s theory that the sexual urges experienced by Mr. Small Legs trumped his higher consciousness

thinking, Dr. Ajeh disagreed. She pointed to the fact that Mr. Small Legs was in the car with AH, and sitting on the couch with her, but he did not do anything to her until he got her in the bedroom alone. Dr. Ajeh said that meant that he was able to delay and manage that emotion until he was in the bedroom with her. Dr. Ajeh was not willing to say that everybody with an intellectual disability, once they were sexually aroused, would not be able to control themselves. With respect to Mr. Small Legs, Dr. Ajeh testified that he told her that AH was coming on to him and kissing him before they got into the bedroom.

That was not the evidence at the Trial, but Dr. Ajeh gave that as a reason why Mr. Small Legs showed he could control himself, before they got to the bedroom. Dr. Ajeh also said that Mr. Small Legs told him that he was attracted to AH and wanted to have sex with her, and she drew the conclusion that it was something he wanted to do, and he was not out of control. Again, I note those statements by Mr. Small Legs were not in evidence. [ 60 ] Dr. Ajeh testified that she did not agree with Dr. Massey’s analogy that Mr. Small Legs had a gas pedal but no brake or steering, pointing to Mr.

Small Legs’ presentation before the index offence, in that he was able to manage himself in social situations. She said he might get emotionally aroused and angry if challenged, but she said his collateral history did not support the position that he had no brakes. Dr. Ajeh testified that he had no criminal record and had not sexually assaulted anyone before. She said there was no previous record of such things happening in school. Dr. Ajeh testified that the issue is complicated by the fact that Mr. Small Legs had consumed significant alcohol at the time of the offence. When asked her opinion about whether Mr.

Small Legs appreciated the nature and the quality of the act, Dr. Ajeh said her opinion was that he did, based on the fact that he took AH into his bedroom before removing her clothes. Dr. Ajeh also referred to the fact that Mr. Small Legs told her that he was attracted to AH and wanted to have sex with her. With respect to the unlawful confinement, Dr. Ajeh pointed to the evidence that people were knocking on the bedroom door trying to get him to open it, and he also knew that AH wanted to leave. Dr. Ajeh said he clearly appreciated what he was doing . Dr. Ajeh was asked if Mr.

Small Legs understood that community standards require that he get a woman’s consent before engaging in sexual activity, and she said that she did speak to him about that. She said that he told her that he wanted to have sex with AH, and was taking her clothes off, and she did not say stop. From that Dr. Ajeh concluded that Mr. Small Legs understood AH needed to agree, and that the standards of society were that it should be consensual. Dr. Ajeh went on to say that the fact that Mr.

Small Legs took her from the living room where there were others present into the bedroom and locked the door and did not open the door when the others asked him to do so indicates an awareness of wrongfulness. With respect to the question of how alcohol affected Mr. Small Legs, Dr. Ajeh testified that alcohol disinhibits, and because of the evidence that Mr. Small Legs had consumed significant amounts of it, she was of the opinion that this on its own could disinhibit him. Dr.

Ajeh was of the opinion that alcohol was an external factor, and that the intellectual disability on its own would not have resulted in the index offence. [ 61 ] Dr. Ajeh’s Cross-examination at the NCR Hearing - In cross-examination, Dr. Ajeh said she met with Mr. Small Legs and his mother twice, for about two hours in each case. Dr. Ajeh said that during these interviews, she gathered the history that was in her report. She confirmed that she disagreed with Dr. Massey in that she did not think Mr. Small Legs had dementia, because the proper testing was not done as referenced previously.

She also stated that from her interviews with him, she did not feel he had dementia. Dr. Ajeh said she based her opinion on her interviews and her significant experience assessing criminal responsibility and her knowledge of the Criminal Code ’s requirements to fulfil that. She said that cognitive tests measure things like his ability to manage money, or whether he needs supports to live at home, but that is a different test than the one for criminal responsibility. She said that just because somebody has an IQ of below 70, does not mean he is unfit to stand trial.

She testified that the psychological tests alone did not tell her if Mr. Small Legs is NCR. Dr. Ajeh testified that she got more information about NCR from the clinical interview. Dr. Ajeh further confirmed that she agreed that Mr. Small Legs had an intellectual disability but did not agree with Dr. Massey’s diagnosis of mood disorder, namely a bipolar disorder and generalized anxiety disorder with panic attacks and paranoid thoughts. She said that if the intellectual disability arose because of the hypoxia at birth, then such intellectual disability would be stable. Dr.

Ajeh testified that to properly evaluate a cognitive deficit, testing was only one part of the evaluation, but the more important

part is to consider assessing the functioning in the community. She said some people with IQs of 60 can function very well in the community, however somebody with an IQ of 75 may not be able to function well. She said things like how they do in school, how they look after themselves at home, and whether they are employed are other important factors. Dr. Ajeh testified that to do a proper assessment it is important to take a good history, with collateral sources. She said testing can help, but a lot of it is based on clinical skills and taking individual history, especially collateral history. In Mr.

Small Legs’ case she said she obtained his records, and reviewed his past medical history, and there was no indication he made contact with psychiatric services other than once, and that he required anxiety management and anger management. Mr. Small Legs reported that he had panic attacks but it actually turned out to be tachycardia, a fast heart. Dr. Ajeh confirmed that her diagnosis was of a severe alcohol and cannabis substance use disorder and mild intellectual disability. She said she did not support the diagnosis by Dr. Massey of dementia or progressive cognitive decline.

She said that was an important distinction because if he had sexual disinhibition caused by dementia that would be part of his illness . She said that she did not see evidence of sexual disinhibition. She agreed that Mr. Small Legs has a cognitive impairment but stated that he is stable and his behaviour in the past does not support that he was sexually disinhibited. [ 62 ] Dr. Ajeh testified that in the clinical interview she asked Mr. Small Legs about prior relationships with girls, and his dating history. She said that Mr. Small Legs had gone to school with females up until Grade 9.

She also pointed out that although he lived in a rural community he was not restricted to his house, and the evidence showed that he did go out with his friends, so did have opportunities to be in the community amongst people. Dr. Ajeh said therefore Mr. Small Legs did have the opportunities to be sexually disinhibited, but there was no corroborating history that speaks to a pattern of sexual disinhibition. As a result, she said the evidence for the presence of a mental disorder causing this behaviour was very light. [ 63 ] In cross-examination, Dr. Ajeh said that she had discussions with Mr.

Small Legs about the requirement for consent when there are sexual relations. She said she asked Mr. Small Legs about the index offences, and his account of them was inconsistent. She said first he told her that he did the index offence, then said he did not, then again said that he did it . Dr. Ajeh was of the opinion that Mr. Small Legs was aware that AH needed to give consent before any sexual activity. Dr. Ajeh testified that Mr. Small Legs was arguing that AH did not say stop. Dr. Ajeh said that in talking to her Mr.

Small Legs was presenting an account that was favourable to him, but that he knew that AH needed to agree and that conversely, if AH said stop, he should have stopped. AH said that Mr. Small Legs told her that she did not say stop, and that is why he continued, because she was consenting. Evaluation of the Expert Evidence

[ 64 ] As noted already, although there may be modifications of the normal rules of evidence with respect to the information experts may use and rely on, the requirement that the Court exercise its discretion in adjudicating on the relevance and weight of that information is not suspended. In this case, there is conflicting expert evidence.

This Court must therefore determine what weight, if any, to give to the opinion evidence after evaluating the reports, reviewing the evidence relied on, and assessing the opinions in the light of all of the evidence. [ 65 ] The Alberta Court of Appeal, in the case of R v NL, 1999 ABCA 206 (LN) , case gave some direction when it stated: [189] What considerations potentially impact on a court’s weighing of psychiatric evidence?

These include: 1. the qualifications and practices of the psychiatrist. 2. the opportunity the psychiatrist had to assess the person, including: length of personal contact, place of contact, role with ongoing treatment, and involvement with the institution in which the person is a patient or prisoner; 3. the unique features of the doctor-patient relationship, such as hostility or fear by the patient (or the psychiatrist) arising from the personalities, the circumstances of the contact, and the role of the psychiatrist. 4. specifically and precisely what documents the psychiatrist had available and reviewed, for example, from earlier court proceedings, institutional records, other medical consultations, or treatment; 5. the nature and scope of consultations (this could include: personal contact with third parties, information from other health care professionals, prison authorities, police, lawyers, family); 6. specifically and precisely what the psychiatrist relies on in coming to an opinion; and 7. the strengths and weaknesses of the information and material that is relied on. [ 66 ] Although in this case Dr.

Massey is a psychologist, in the LN case the Court also applied the above factors to that evidence, and I propose to do that here as well, in evaluating the two expert’s opinion evidence. 1. Qualifications and Practices – Both Dr. Massey and Dr. Ajeh appeared to be eminently qualified and experienced. I do note however that Dr. Ajeh is employed by FAOS, and has been so employed since 2014, and therefore engages in forensic assessments exclusively in her practice. Although Dr.

Massey is qualified as a forensic psychologist, it does not appear from the evidence that he focuses on forensic assessments exclusively in his practice, to the extent Dr. Ajeh does. 2. Opportunity to Assess the Person - Dr. Massey had two opportunities to assess Mr. Small Legs, generating the 2019 Report and the 2021 Report. He did similar psychometric testing on both occasions, as well as personal interviews. He did not speak about the actual incident much with Mr. Small Legs for the second report. Dr. Ajeh also had some psychometric testing done at FAOS by their own psychologist Dr.

Young, but she also did a face-to-face clinical interview on two occasions with Mr. Small Legs. 3. The unique features of the doctor patient relationship – Both Dr. Massey and Dr. Ajeh met Mr. Small Legs in an outpatient consultation setting. I do note that the first meeting between Mr. Small Legs and Dr. Ajeh ended badly, in that Mr. Small Legs got quite agitated and dysregulated when the topic of the index offence was broached, and the evidence was that he got abusive towards Dr. Ajeh so the session had to be ended. However, the evidence was that he met Dr.

Ajeh again later for the second time and they were able to complete the assessment without further difficulty. 4. The Documents Reviewed by the Experts – Both experts reviewed the judgment from the Trial. Dr. Ajeh had the additional benefit of reviewing the two previous reports of Dr. Massey, and the transcript of Dr. Massey’s testimony at the NCR hearing. She also reviewed some medical records of Mr. Small Legs, the Presentence Report and the disclosure package. 5. The Nature and Scope of Consultations – Both experts consulted with Mr. Small Legs’ mother Shelley Small Legs extensively. Dr.

Ajeh also reviewed some of Mr. Small Legs’ medical records. 6. Specifically and Precisely what the Experts Relied on in Coming to an Opinion – Both experts relied on the psychometric testing. They both relied on what Shelley Small Legs told them about Mr. Small Legs’ birth and early schooling. Both of them relied to some degree on what Mr. Small Legs told them about the incident. However, Dr. Massey said he put less weight on what Mr. Small Legs told him than he did on the test results. Dr. Ajeh put more weight on her interviews with Mr.

Small Legs and on his medical records, as well as collateral information from Shelley Small Legs, and less weight on the tests. 7. The Strengths and Weaknesses of the Information and Material that is Relied On – In my view the psychometric tests were strong evidence, because Dr. Massey did them for both reports, and the results were mainly consistent. Dr. Ajeh also had some psychometric tests done as well, and they were also mainly consistent with Dr. Massey’s test. As already discussed, the narrative related by Mr.

Small Legs as to what happened was not evidence in the Trial or NCR, so not admissible for the truth of the contents because they are hearsay statements. However, in my view, based on the case law, such statements by Mr. Small Legs may be used by the experts in coming to their opinion. The collateral reports by Shelley Small Legs, and medical records were also not in evidence at the Trial or NCR hearing, but once again in my view may be used by the experts in forming their opinions. [ 67 ] Dr. Ajeh disagreed with Dr. Massey in that she did not think Mr.

Small Legs had dementia because the proper testing was not done, namely radiographic tests such as a CT or MRI. She also stated that from her interviews with him she did not feel that was the case. She said the medical records showed that what was termed a panic attack was actually tachycardia, and that Mr. Small Legs had learned how to manage it. She did not agree with Dr. Massey’s diagnosis of mood disorder, namely a bipolar disorder and generalized

anxiety disorder with panic attacks and paranoid thoughts. Dr. Ajeh came to these conclusions because of her review of Mr. Small Legs’medical records. I therefore accept her findings on these points. [68] I am prepared to give more weight to Dr. Ajeh’s evidence in this case for several reasons. First of all, Dr. Ajeh appears tohave more experience in doing NCR assessments. She works for FAOS, and does this kind of work exclusively, and has considerableexperience. Secondly, she had the benefit of reviewing some of Mr. Small Legs’ medical records, which informed her opinion to somedegree. Does Mr.

Small Legs Have a Disease of the Mind? [69] The first step in an NCR application is to determine whether Mr. Small Legs has a “disease of the mind”. As noted above, thecase law states in Bouchard-Lebrun that the line of authority based on Cooper clearly confirms that the scope of the legal concept of"mental disorder" is very broad. In Cooper, Dickson J stated that the "disease of the mind" concept includes "any illness, disorder orabnormal condition which impairs the human mind and its functioning" (p 1159).

In Rabey, Dickson J explained that "the concept isbroad, embracing mental disorders of organic and functional origin, whether curable or incurable, temporary or not, recurring or non-recurring". [70] Both Dr. Massey and Dr. Ajeh agreed, and both counsel concurred, that Mr. Small Legs had a disease of the mind. [71] Dr. Massey testified that on a measure of cognitive functioning and brain impairment, Mr. Small Legs’ performance placedhim in the mild cognitive impairment range, because of the organic brain syndrome due to the anoxia he suffered at birth. Dr. Masseysaid that Mr.

Small Legs demonstrated significant deficits in his executive functions on objective measures, indicating substantialimpairment of the brain and particularly the frontal lobe and temporal lobe regions. [72] Dr. Massey was also of the opinion that he had an underlying mood disorder, and a generalized anxiety disorder with panicattacks, and dementia. However, he said these were separate diagnoses. As already noted, Dr. Ajeh disagreed with these latterdiagnoses. I am not satisfied that Mr. Small Legs has proven these latter diagnoses.

It is not clear that these latter diagnoses are relevantin any event to the second part of the NCR test, that is whether Mr. Small Legs appreciated the nature and quality of the act, or that itwas wrong. I therefore will not consider these latter diagnoses of mood disorder, general anxiety disorder or dementia as being part ofthe disease of the mind in this case. In addition, Dr. Massey found that Mr. Small Legs presented with a substance use disorder, as hewas still using alcohol and marijuana. [73] Dr. Ajeh testified that Mr.

Small Legs had a severe alcohol and cannabis use disorder and mild intellectual disability, whichdisability she thought arose because of the hypoxia. She said that the term organic brain disorder is not commonly used in psychiatryanymore. [74] Based on the testimony of both experts, I find that at the time of the index offences, Mr. Small Legs had a mild intellectualdisability, which is a disease of the mind in accordance with the

definitions set out in the Code and the case law which I have referred toabove. The experts confirmed that the psychological testing indicated that with respect to Mr. Small Legs’ academic functioning, wordreading was at the Grade 8 level, spelling at the Grade 5 level, mathematical abilities at the Grade 2 level, and the ability to read was atthe Grade 9 level. [75] Both experts agreed that Mr. Small Legs also had a substance use disorder. The First Branch of the Capacity Inquiry – Was Mr.

Small LegsCapable of Appreciating the Nature and Quality of the Acts? [76] The next step in the NCR inquiry requires an analysis of the effect that Mr. Small Legs’ disease of the mind had on hiscapacities. The first branch of the test involves an assessment of Mr. Small Legs’ capacity to appreciate the physical nature, characterand consequences of the act. The acts in question here are first of all the sexual touching of AH without her communicating her consent,and secondly confining her in his bedroom, also without her consent. At the Trial, this Court found that Mr.

Small Legs took her into hisbedroom, where either he locked the door, or it locked automatically, and then he proceeded to touch her sexually, removed her clothing,and had sexual intercourse with her. The evidence before the Court was that AH protested during the assault, by telling him to stop, andby trying to physically resist, and get away. [77] In the case of R v Barnier, (SCC), [1980] 1 SCR 1124, the Supreme Court established that “appreciate” is amuch broader term than “know”.

The Supreme Court held that “appreciate” entails a much higher level of understanding and includedthe ability to measure and foresee the consequences of violent conduct. To “appreciate” requires both knowledge and understanding. The accused must be capable of foreseeing and measuring the physical consequences of his act. [78] As discussed previously in my

summary of Dr. Massey’s evidence, he testified that the effect of the organic brain disorder onMr. Small Legs was that it causes a lack of development in the frontal lobes of the brain, which are the judgment and reasoning centres. When he grew to become an adult, these centres did not wire themselves and they do not work properly. Dr. Massey testified that without those parts of the brain functioning properly, when something happened to Mr. Small Legs, he was driven by impulse, and there wasnothing to control the impulse. Dr. Massey said that Mr.

Small Legs then has to rely on the lower brain functions, which is instinctbased. In Mr. Small Legs’ case, such a response would not be modulated. [79] In examination in chief, Dr. Massey was asked how Mr. Small Legs would react if he was intoxicated and went into a roomalone with a female. Dr. Massey’s response was that he would have even less of his brain working properly and more of the instinctualresponse being ramped up. Dr. Massey said that just the fact of being in the room with a female may be enough to trigger Mr. Small

Legs towards sexual activity. Dr. Massey said that he did not think Mr. Small Legs would be able to appreciate what was happening inthe room with the female, because he would be driven by his impulses. Dr. Massey was not able to say if Mr. Small Legs understoodspecifically what he was doing in that room and testified that he did not think Mr. Small Legs could understand the cues given by AH inthe room, and that he could not appreciate the issue of consent, or non-consent. When asked if Mr. Small Legs would understand thewords “no” or “stop” which were used consistently from the start, Dr.

Massey responded that it would depend on how aroused Mr.Small Legs was, and if he was very aroused, he might not be able to stop. Dr. Massey said that the sexual urge trumps all other levels ofthinking and would trump his higher level of consciousness at that moment, meaning Mr. Small Legs hears the word “no” but does notunderstand it in that context because he does not have higher cognitive judgment skills when he is sexually aroused. When asked at whatpoint the sexual arousal for Mr. Small Legs gets so high that he loses the ability to understand that “no” means “no”, Dr. Massey said hewas not sure.

The Defence therefore argues that Mr. Small Legs has an irresistible impulse, namely a sexual disinhibition, which arisesbecause he has a disease of the mind. [80] The Supreme Court of Canada considered a similar situation, in a case of R v Borg, (SCC), [1969] 4 CCC 262(SCC) (Borg). In that case a man shot a policeman with a rifle, and stated that he planned to kill a policeman, and had purchased a rifleand ammunition for that purpose. He raised a defence of insanity. The Defence called a psychiatrist, Dr.

Spaner, who testified that theaccused had an impulse driven personality and was unable to cope with his homicidal impulses, which is why he shot the policeman. The Supreme Court stated as follows: It appears to me that the effect of Dr. Spaner's evidence is that, in his opinion, at the time of the shooting Borg may have been actingunder an irresistible impulse such as the Doctor had described.

There is no evidence that Borg himself had that view and the portions ofhis statement and of his answers read to the jury far from suggesting anything in the nature of an impulsive action indicated a deliberateplan which it took him some hours to carry out. [81] Like the Borg case, there was no direct evidence at the Trial in this case that Mr. Small Legs’ actions were the result of anirresistible impulse. Mr. Small Legs gave no such evidence, nor did he tell that to either of the experts. On the contrary, there seemed tobe at least some planning, in that Mr.

Small Legs took AH from the living room into his bedroom and locked the door behind them. Hethen took AH’s clothes off before he had sexual intercourse with her. It appears that there was some planning by Mr. Small Legs, whichis evidence that the offences were not the result of spontaneous impulse. [82] Furthermore, Dr. Ajeh disagreed with Dr. Massey’s position that this incident was caused by an irresistible impulse. Sheagreed that Mr. Small Legs has a cognitive impairment but stated that he is stable and his behaviour in the past does not support that hewas sexually disinhibited. Dr.

Ajeh testified that in the clinical interview she asked Mr. Small Legs about prior relationships with girls,and his dating history. She said that Mr. Small Legs had gone to school with females up until Grade 9. She also pointed out thatalthough he lived in a rural community he was not restricted to his house, and the evidence showed that he did go out with his friends, sodid have opportunities to be in the community amongst people. Dr. Ajeh said therefore Mr.

Small Legs did have the opportunities to besexually disinhibited, but there was no corroborating history that speaks to such a pattern of sexual disinhibition. As a result, she said theevidence for the presence of a mental disorder causing this behaviour was very light. She said that Mr. Small Legs might getemotionally a

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