R v Friesen, 2016 MBCA 50

Citation: R v Friesen, 2016 MBCA 50 Date: 20160516 Docket: AR15-30-08343 IN THE COURT OF APPEAL OF MANITOBA Coram: Madam Justice Freda M. Steel Mr. Justice Marc M. Monnin Madam Justice Janice L. leMaistre BETWEEN : ) A. L. Sansregret HER MAJESTY THE QUEEN ) for the Appellant ) Respondent ) N. P. Steen ) for the Respondent - and - ) ) Appeal heard: DILLYN CARL NODWELL FRIESEN ) October 2, 2015 ) (Accused) Appellant ) Judgment delivered: ) May 16, 2016 MONNIN JA [ 1 ] The accused pled guilty to a charge of manslaughter. He received a sentence of six years’ imprisonment which he appeals to this Court.

The appeal raises the difficult issue of Fetal Alcohol Spectrum Disorder (FASD) and the considerations that must be taken into account by a sentencing judge where it is relevant. [ 2 ] The accused, a young man of 20 years of age at the time of these events, was at a party in a quarry in rural Manitoba. The party was in memory of the accused’s deceased friend who had passed away in an accident approximately a year before. There was evidence that he had been drinking and was in a belligerent mood. He had advised a friend of his that he was looking for a fight that evening.

He tried to instigate a fight with Korey Lee (Lee) who was present at the gathering with his girlfriend, Krista Krieg (Krieg). After an initial attack by the accused, Lee left the scene with Krieg, but not before the accused had uttered threats and done physical damage to his vehicle. They went to Krieg’s parents’ residence to escape, but the accused followed them there. Krieg’s father (the victim) came out of his house to ward off the accused. Without warning the accused struck the victim with a blow to the head which sent him to the ground. His head hit the ground where he fell.

The victim did not recover from the blow and he died two days later. The cause of death was blunt-force trauma to the brain caused by the punch and the resulting skull fracture. Shortly after the incident, the accused was overheard bragging to friends about the attack.

As well, the next day he encouraged individuals who had been present at the scene to provide a story that he acted in self-defence. [ 3 ] The accused has a limited youth criminal record consisting of charges of theft, auto theft, uttering threats, possession of property obtained by crime as well as a failure to comply with a condition to abstain from alcohol. He received two years supervised probation for those offences, after being referred by the Provincial Court judge for an FASD assessment under the Youth Justice Program.

That assessment revealed that he did, in fact, meet the criteria for partial FASD, which would have significant implications in terms of long-term vocational training, as well as for the management and supervision of his behaviour. [ 4 ] Testing confirmed that the accused’ s IQ was at a borderline range and that there was significant impairment of his executive and social adaptive functioning. It was recommended that the accused have a structured, consistent environment to ensure his safety and the safety of others, which would be required on a life-long basis.

As well, the report suggested a psychiatric assessment to recommend medication to assist with some tendencies towards anger and depression. [ 5 ] This report and an update were before the sentencing judge. In the update, Dr. Chudley concluded that:

[The accused’s] major challenge is poor regulatory control and ADHD that is currently not treated. This presents with poor self-control, impatience, impulsivity, poor inhibition, agitation, poor focus and distractibility. He also has severe impairments in executive function and social adaptation. This presents in him with immaturity, poor motivation and drive, difficulty in learning from past experiences, poor decision making, poor planning and organizing abilities and difficulty in peer relationships.

He can function well with supports but living independently in the community will be a challenge for him without additional supports and mentorship. [The accused] clearly becomes much worse in the presence of alcohol, and this is evidenced by the uncontrolled violence he exhibited when under the influence. Whatever limited internal regulatory controls he has with his natural state are lost under the influence of alcohol abuse. [emphasis added] [ 6 ] A pre-sentence report was also ordered.

It disclosed that, during probation under the previous charges, he had been referred to the New Direction Fetal Alcohol Syndrome Disorder Employment Program. While doing well under the program, the accused was unable to conclude it by reason of his family’s inability to arrange transportation between Anola and Winnipeg, as his father was a long-distance truck driver and his mother did not drive. The pre-sentence report noted that he was a very high risk to reoffend, given his past record and propensity towards violence when intoxicated, but that he had some ability to put limits on his behaviour.

Nonetheless, it was submitted that, with consistent structure and support, there was a reasonable hope that he would manage himself appropriately in the community. [ 7 ] At the sentencing hearing, the Crown suggested a sentence of six years, while defence, acknowledging that a penitentiary term was appropriate, submitted that a sentence in the range of three to four years would be a fit sentence. [ 8 ] The sentencing judge was of the view that the accused’s conduct on the night of the offence displayed a deliberate intention to get into a fight with someone.

As such, he did not see it as behaviour influenced by his partial FASD condition. In his view: Despite his intoxication and intellectual deficit, the accused’s actions constitute a deliberate course of conduct consistent with his earlier statement of intention to get into a fight with someone. In my view, [the accused’s] degree of moral culpability is high.

He was also of the view that the accused was aware that he was prone to violence while under the influence of alcohol, and, therefore, intoxication was not a consideration that undermined his moral culpability in any material way. [ 9 ] He considered the fact that, while the attack consisted of only a single blow, the magnitude of the blow was significant and was clearly intentional.

As well, he considered the accused’ s attempt to impede the police investigation by encouraging witnesses to lie. [ 10 ] The sentencing judge did not consider the entering of a guilty plea as a mitigating factor, given that much of the factual background was not admitted such that the family of the victim was still required to testify.

Therefore, he did not attach the same weight to the guilty plea as would normally be the case. [ 11 ] In his view, denunciation and general deterrence were the primary considerations and the presumption in favour of rehabilitation was displaced as no course of treatment was possible to change the fact that the accused suffered from a chronic neurological deficit. He noted the failure of the accused to put into place the supports he required.

In his view, the bail conditions were not an impediment to doing so as the Crown would have likely consented to varying the conditions of his judicial interim release to allow it. In conclusion, he stated: Mitigation of a risk is clearly distinguishable from true rehabilitation but in the court’s view rehabilitation is not a principle again that would impact to temper the sentence imposed here this afternoon. He, therefore, imposed a sentence of six years as suggested by the Crown.

Issues [ 12 ] This appeal proceeded on the basis that the sentencing judge erred in two respects: firstly, in his assessment of the accused’s moral culpability by failing to give due regard to his partial FASD diagnosis; and, secondly, by discounting the prospect of rehabilitation due to his concern as to the risk of reoffending. The defence’s position is that this led the sentencing judge to impose a higher sentence than was fit in the circumstances. For the reasons that follow, I agree that the sentencing judge erred in such a manner that it had an impact on the sentence and, as a result, the sentence is unfit.

Standard of Review [ 13 ] The Crown correctly points out that the standard of review on a sentence appeal is well settled and is highly deferential. Appellate courts are not to interfere with the decision of the sentencing judge unless an error in principle is present or the

sentence is unfit (see R v LM, 2008 SCC 31, [2008] 2 SCR 163). [14] An error in principle would include failing to consider a relevant factor, taking into account an irrelevant factor orfailing to give sufficient weight to a relevant factor or overemphasizing an appropriate factor. See R v Draper (TG), 2010 MBCA 35 atparas 6-7, 251 ManR (2d) 267; and R v Lacasse, 2015 SCC 64 at paras 11, 46, [2015] 3 SCR 1089. Analysis [15] FASD is a non-clinical term that refers to a range of cognitive deficits and other disabilities caused by prenatal alcoholexposure. It encompasses five medical diagnoses: 1.

Fetal Alcohol Syndrome (FAS); 2. Partial Fetal Alcohol Syndrome (pFAS); 3. Fetal Alcohol Effects (FAE); 4. Alcohol-Related Neurodevelopmental Disorder (ARND); and 5. Alcohol-Related Birth Defects (ARBD). See Kent Roach & Andrea Bailey, “The Relevance of Fetal Alcohol Spectrum Disorder in Canadian Criminal Law from Investigation toSentencing” (2009) 42 UBC L Rev 1-68 (QL). [16] For our purposes, the accused was diagnosed with partial fetal alcohol syndrome (pFAS). FASD is a leading cause ofdevelopmental disability in children. The prevalence rate of FASD varies across cultures and socio-economic strata.

One study, based inNorthern Manitoba, reported the incidence of FASD to be 7.2 per 1,000 live births (see Paul Verbrugge, “Fetal Alcohol SpectrumDisorder and the Youth Criminal Justice System: A Discussion Paper”

(2003) Department of Justice Canada Youth Justice Research,rr03YJ-6e, online: <www.article15.gc.ca/eng/rp-pr/cj-jp/yj-jj/rr03_yj6-rr03_jj6/rr03_yj6.pdf> at 2. A study conducted about 10 yearsago reported that approximately 10 per cent of adult male offenders (66 per cent of whom were Aboriginal) entering the Stony MountainInstitution suffered from FASD.

Another study showed that 17 per cent of children in the Manitoba child welfare system suffered fromFASD; some were diagnosed, and others were not (see Don Fuchs et al, “Passion for Action in Child and Family Services, Voices fromthe Prairies, ch 9: Children with FASD Involved with the Manitoba Child Welfare System: The Need for Passionate Action” (2009)Canadian Plains Research Center, University of Regina, online: <cwrp.ca/sites/default/files/publications/prairiebook2009/Passion_for_Action_in_Child_and_Family_Services.pdf>.

While it may not be an epidemic, it is certainly endemic to our criminaljustice system. [17] Appellate courts have recognized that an FASD diagnosis may play a role in the sentencing process. As early as 1990,then McEachern CJ of British Columbia, made the following comments regarding FASD in R v RBM , (BC CA) (atparas 16-18, 20): It appears self-evident to us that in any population there will be some disadvantaged members who, for many reasons, are likely to fall, ormore likely drift, into a life of idleness and crime.

Society must be protected from them as best it can, but in some cases it is unrealisticto think that some of these unfortunate persons can be rehabilitated once the cycle starts, by successive and increased periods ofimprisonment, especially when, upon release, they are returned to the same environment, lifestyle, frustrations and temptations whichcontributed to their misfortune in the first place.

This, of course, is especially the case with those of our citizens who have not had the advantages of a stable family structure in theirformative years, or were harmed before or at birth, or afterwards by some form of alcohol syndrome, or from other physical or cognitiveimpairment or from the additional misfortune of abuse in childhood. It appears this accused may suffer from all of these disadvantages.

This all too typical collection of misfortunes is not limited to our native Indian populations, but may be more numerically prominentamongst them, partly because of historical disadvantages of which some, such as this accused, may be the unfortunate product. What is required, in this and many similar cases, is intensive guidance, encouragement, training and supervision on preferably a daily orfrequent basis by a person or persons in whom the accused has confidence.

Probation where some accused persons are only required tosee their advisor periodically, or regularly to call in by telephone is of little, if any, use in a case such as this. [emphasis added] [18] In their article, previously cited, Roach & Bailey reviewed the Canadian sentencing approach to FASD. They explainedas follows (at paras 5-6, 8, 85):

The fundamental principle for sentencing adults is the retributive idea that the sentence must be proportionate to the gravity of theoffence and the offender’s degree of responsibility. The other purposes of sentencing for adults include specific and general deterrence,denunciation, incapacitation, rehabilitation, and the promotion of a sense of responsibility in offenders. All of these purposes assumeoffenders are capable of making choices, understanding the consequences of their action, and learning from their mistakes.

In short, Canadian criminal law is premised on assumptions about free will and individual responsibility. Any departures from that normare assumed to be temporary and treatable. These assumptions unfortunately do not fit well with what is known about FASD as apermanent form of brain damage that can often leave people with the basic ability to function but subject to memory loss, impulsivity,and easily led by suggestions from others. The growing jurisprudence on FASD has been developed almost entirely by judges.

It is not uniform in its treatment of FASD, especiallywith respect to the taking of statements and sentencing. The recognition of FASD by the court sometimes works to the advantage of theaccused, but sometimes does not. For example, FASD sometimes is used as a mitigating factor in sentencing, but it has also been used asan aggravating factor with respect to concerns about future danger and the need for incapacitation or long term and intense supervision. .. . Appellate courts have largely not weighed in yet on how the criminal law will deal with FASD.

On the one hand, this provides awindow for opportunity and creativity and appellate guidance for judges and lawyers who may not be familiar with FASD. On the otherhand, there is a danger that innovations by trial judges who regularly see the effects of FASD in their courtrooms may be quashed onappeal. The determination of an appropriate sentence for the FASD offender is a challenging task for courts.

Although it is increasinglyrecognized that FASD is a disability that can have a profound impact on the level of an offender’s moral culpability, the mitigation thatthis consideration would normally have on the length of a sentence is frequently tempered by the practical need to protect thecommunity.

As will be described below, the programming available to an FASD-affected offender is inadequate and the resources tosupport and monitor such an individual in the community are severely lacking. [19] Recent judicial consideration of the issue at the appellate level can be found in the Alberta Court of Appeal’s decision inR v Ramsay (DL), 2012 ABCA 257, 536 AR 174, and the Yukon Court of Appeal in R v Charlie (FJ), 2015 YKCA 3, 366 BCAC 254,both decisions having been referred to by the accused. [20] In Ramsay, the accused was convicted of sexual assault and a number of other related offences.

He was sentenced to aperiod of incarceration of eight years. The sentencing judge noted as a mitigating factor the accused’s FASD and recognized somediminished responsibility. On appeal, one of the grounds was that the sentencing judge had failed to give sufficient weight to thatmitigating factor. The Alberta Court of Appeal stated (at para 19): Further,

section 718.2(

a) of the Criminal Code requires that a sentence should be increased or reduced to account for any relevantaggravating or mitigating factors relating to the offence or the offender.

Therefore, to the extent that FASD is demonstrated to haveattenuated or diminished the moral blameworthiness of the offender, it must be taken into account. [21] As well, the Court noted (at paras 24-25): Where the cognitive deficits experienced by the offender significantly undermine the capacity to restrain urges and impulses, toappreciate that his acts were morally wrong, and to comprehend the causal link between the punishment imposed by the court and thecrime for which he has been convicted, the imperative for both general deterrence and denunciation will be greatly mitigated (Quash[2009 YKTC 54 ] at para 71; Harper [2009 YKTC 18 ] at para 47).

We agree with the observation of the court inQuash that: That is not to say that the principles of general deterrence and denunciation have no place in sentencing FASD offenders. In certain casesthere may be a role, depending on the nature of the offence and the degree of moral culpability of the offender, based upon the extent ofhis or her cognitive difficulties” (at para 72). The degree of moral blameworthiness must therefore be commensurate with the magnitude of the cognitive deficits attributable toFASD.

The more acute these are shown to be, the greater their importance as mitigating factors and the less weight is to be accorded todeterrence and denunciation, all of which will serve to “push the sentence ... down the scale of appropriate sentences for similaroffences” (for the careful application of this sliding scale to an especially severe case of FASD, see R v FC, 2012 YKTC 5 at paras 24-

29, 38-43, [2012] 2 CNLR 184). [emphasis added] [22] In Ramsay, the Court concluded that the sentencing judge had given proper weight to the diagnosis given that theaccused’s level of functioning was not as severely impaired as those in cases where other courts had determined it should significantlyreduce the sentence. Similarly, in R v Manitowabi (D), 2014 ONCA 301, 318 OAC 174, the Ontario Court of Appeal, followingRamsay, stated (at para 64): Moral culpability was a relevant consideration in determining whether the appellant should be sentenced as an adult.

To the extent thatFASD impacts on the behaviour that attracts criminal liability, FASD, like other forms of cognitive impairment, can attenuate the moralblameworthiness attached to that behaviour. It can also justify less emphasis on the principles of specific and general deterrence: R. v.Ramsay, 2012 ABCA 257, 292 C.C.C. (3d) 400, at para. 25. [emphasis added] [23] A link between FASD and a reduction of moral culpability is fact specific as shown in this Court’s decision of R vRoulette, 2015 MBCA 102. In that case, the accused had been arrested for a domestic incident and was denied bail.

As part of herdetention order, she was directed to abstain from any communication with the complainant. However, due to attempts to communicatewith the complainant via Facebook, she was convicted of attempting to obstruct justice and failing to comply with a direction in adetention order. She appealed.

On the sentence appeal, the following comments were made by this Court (at paras 6-8): The issue on the sentence appeal is whether, in assessing moral blameworthiness, the judge properly took into consideration Gladuefactors (R v Gladue, (SCC), [1999] 1 SCR 688) including that the accused was a 21-year-old Aboriginal offender withan intellectual disability due to alcohol-related neurodevelopmental disorder (ARND).

While a mental illness, or intellectual disability such as ARND, is a relevant factor to be taken into consideration in determiningsentence, it does not necessarily diminish an offender’s moral blameworthiness or justify a lower sentence (R v JB, 2013 NLCA 61 atpara 35, 341 Nfld & PEIR 329; R v MJH, 2004 SKCA 171 at para 29, 257 SaskR 1; and R v Manitowabi (D), 2014 ONCA 301 at para64, 318 OAC 174). Here, it is not disputed that the extent of the accused’s intellectual disability does not acutely inhibit her from being able to function insociety or be law-abiding.

More germane is that no nexus can be drawn between her intellectual disability and her degree ofresponsibility for the purposes of

section 718.1 of the Criminal Code. Her conduct was not impulsive. Her scheming displayed a highdegree of moral blameworthiness that was not the product of the accused’s intellectual disability. Despite the non-communicationdirection, the accused enlisted A.S. to assist her to perpetrate the crime. Finally, in the electronic messages the accused attempted tomanipulate the complainant by playing on sympathy over the accused’s ailing mother. [emphasis added] [24] As well, in R v CTH, 2015 MBCA 4, 315 ManR (2d) 56, this Court had to deal with the application of sentencingprinciples to an offender with ARND.

Steel JA, writing for the Court, confirmed that the accused’s ARND diagnosis was properlyconsidered as a mitigating factor in sentencing. She observed (at para 62): In sentencing an offender such as C.H., the court should focus on two essential factors: the provision of a realistic framework for theoffender’s rehabilitation and personal security and the need to provide protection to the public. [25] In R v Joamie, 2013 NUCJ 19 , Kilpatrick J noted that the impact of FASD on an accused’s moral culpabilityis an evidentiary issue that must be assessed on a case-by-case basis (at paras 30, 34):

A Court cannot decide how an offender’s cognitive deficits may have impacted the offender’s degree of responsibility for criminal behavior in the absence of expert medical evidence related to the offender’s specific cognitive condition. No conclusions can be made on the strength of vague generalizations derived from medical and scientific literature alone without any understanding of the offender’s individual cognitive deficits and their severity.

The Court must first assess the moral blameworthiness of the offender in light of the impact that the cognitive deficits attributable to FASD had upon offender’s behavior. This assessment cannot be done in the abstract. Forensic medical or psychiatric evidence is required to understand how the offender’s cognitive deficits impacted his or her behaviour and so contributed to the commission of the offense [ sic ] before the Court. [ 26 ] In

summary, an offender’s moral blameworthiness may be reduced if he suffers from an FASD related diagnosis and there is a connection between the condition and the offence for which he stands charged.

The sentencing judge must have evidence of the diagnosis and its impact on the accused in order to draw the nexus between that diagnosis and the accused’s conduct relating to the offences. [ 27 ] In this case, the sentencing judge failed to properly appreciate the effect of the accused’s pFAS on his conduct on the day in question. [ 28 ] He reasoned that, with respect to the accused’s intoxication, the accused was aware that alcohol had a negative impact on his ability to control his anger.

Therefore, he should have known not to drink and the fact that he was intoxicated on that day was not relevant to his moral culpability. I disagree. [ 29 ] While he concluded that the accused is able to abstain because he has done so since the date of the offence, this is as a result of his being under constant supervision and under parental control, which was not the case prior to the date of the incident.

In our case law, voluntary intoxication is rarely capable of supporting an argument of diminished responsibility as we ascribe to the individual the ability to stop the drinking which led him to the situation in question. In this case, however, one must recognize the diagnosis of pFAS and what that entails.

Given that the accused was prone to impulsive and irrational actions and with limited ability to foresee the consequence of his actions, to suggest that his self-knowledge of the effects of alcohol should lead him not to indulge is, with respect, placing too high of an expectation on someone with his diagnosis. It is inconsistent with the medical evidence. Given his diagnosis, I am of the view that his lack of control when intoxicated was a factor in his unprovoked attack.

Such conduct stems from his condition and it should have been considered as a mitigating factor. [ 30 ] The sentencing judge also concluded that the deliberateness of the accused’s intention to get into a fight and to continue it past the initial encounter with Lee at the quarry demonstrated conduct inconsistent with “impulsive and ill considered actions which are the hallmark of the partial FASD diagnosis.” In my view, it was an error to suggest that the accused’s chasing of Lee from the quarry was conduct inconsistent with his pFAS impulsiveness.

The entire sequence of events that evening displays a failure to appreciate the consequences of his act reflective of the diagnosis. [ 31 ] The sentencing judge himself confirmed the impact of the pFAS on the accused in his final comments on the sentencing, namely, that he hoped that the Correctional Service of Canada would consider, in conducting its assessment, that the accused has been assessed in some respects to have the mental functioning equivalent to that of a 10-year-old and his intellectual impairment would pose certain challenges for him. [ 32 ] In my view, his conduct on the day in question and the nature of the attack that took place suggests impulsivity, lack of control and a failure to recognize the consequences of his actions.

All of these factors should have led the sentencing judge to consider a diminished moral culpability. Failure to do so amounted to an error in principle. [ 33 ] The second aspect of the appeal relates to the sentencing judge’s view that the presumption in favour of rehabilitation was “largely displaced in this case.” He concluded that the supervision available through the accused’s parents did not approach what was necessary and that he was to be faulted for not having taken any steps to put in place the life-long supports he needed.

In the sentencing judge’s view, the fact that the accused had been on restricted bail conditions was an insufficient impediment for doing so, given that the Crown would likely have consented to vary the existing order of judicial interim release to allow the accused to access the supports that were required.

Therefore, he found that the accused represented a risk to the community which required a lengthier sentence. [ 34 ] In short, the sentencing judge chose a lengthier sentence for reasons of public safety without consideration for the accused’ s rehabilitation as, in his view, it was not a factor given the pFAS diagnosis. On that aspect, I believe the sentencing judge erred as well. [ 35 ] There is no doubt the sentencing of individuals with FASD must involve a balancing of society’s need for protection and the recognized disability of the accused.

As Roach & Bailey noted (at para 96): There are essentially two types of cases where custodial time increases in response to an FASD diagnosis. The first are cases where an offender is presented as a high risk to reoffend and deemed unlikely to complete or benefit from programming. Here, custody is considered the best way to ensure the protection of the public. The second type of case concern those where it is recognized that the offender will benefit from programming, but the court finds that the best programs are offered in jail.

Given substantial differences in expert opinion on whether and how an offender with FASD can be rehabilitated and reintegrated into society, the first type of case raises an issue about the consistency of medical and judicial understanding of FASD. The second approach raises some well-founded concern

about the criminalization of people with disabilities. [emphasis added] [36] Rehabilitation is not limited to the traditional view of correcting the accused’s attitude to prevent him fromrecidivating. It can also deal with finding a way to control and modify the behaviour. As Ruddy TCJ stated in R v Kendi, 2011 YKTC37 (at para 11): With respect to the issue of specific deterrence, it is clear from the report that specific deterrence, as we generally consider it in thecourts, is not going to work with Mr. Kendi.

He simply does not, and is not, capable of making the same cause and effect assessmentthat someone without the disability is capable of doing. So I do have some questions about the degree to which the sentence that I passtoday will in any way specifically deter him in the future. As I noted earlier, in my view, what this case is about, really, is aboutbalancing the issues of rehabilitation and protection of the public. By rehabilitation, I want to make it clear that I am talking aboutrehabilitation in the context of Mr. Kendi’s disability.

So this is not a situation where he is ever going to be cured; this is not a situationwhere we can send him off to a particular program that is going to change his behaviour. Rehabilitation in the context of a situation withan FASD offender is really about adjusting our expectations to their abilities, but also about setting up a situation which maximizes hischances of being successful within the community, and that is really all about structure, support, and supervision.

A situation in whichthere are others around him to provide, in the absence of his ability to do so, that executive brain functioning to help him to makeappropriate decisions. So rehabilitation, in this case, I am viewing within that context. [emphasis added] [37] The sentencing judge faulted the accused for not taking steps to put supports in place. I fail to see this as an impedimentto his having them in place once an appropriate sentence has been served. An explanation was given for the withdrawal from theexisting program.

Nothing indicates that such a program would not be available to him once he leaves the institution or that he could notavail himself of such programs within the institution. [38] To mete out a sentence which is based upon a consideration of risk without due consideration of the effect of controllinghis behaviour, also a form of rehabilitation, is inconsistent with the principles of sentencing. Rehabilitation should be a factor in thedetermination of a fit and proper sentence unless it is clearly irrelevant.

While in certain cases the discounting of rehabilitation as afactor may be warranted, those would be cases where the accused’s repeated conduct, as well as the medical evidence, led to thatconclusion. [39] In this case, the accused had a limited criminal record prior to this offence. While the offence is a serious one andmerits a substantial penitentiary term, as conceded by the defence, it would be inappropriate, in my view, to give up on the accused andpark him in a penitentiary for an additional period of time on the basis of his pFAS diagnosis.

Conclusion [40] I have concluded that the sentencing judge erred in imposing a sentence of six years and that a fit and proper sentencewould be one of four years. JA I agree: JA I agree: JA