Defendant Who Was Sleepwalking Is Found ‘not Criminally Responsible’ for Sexual Assault

Under Canada’s Criminal Code s. 16, a person cannot be held criminally responsible for an action or omission they made while suffering from a mental disorder that made them incapable of understanding that their actions were wrong.  The defence of ‘not criminally responsible on account of a mental disorder’ is based on a fundamental principle in Canadian criminal law that requires that an accused person must have the capacity to make the choice between right and wrong before they can be found guilty of a crime.

In 1992, Canada enacted Bill C-30, the purpose of which was to change the way accused persons with a mental disorder are managed in the criminal justice system. One of the changes included replacing the previous not guilty on ‘account of insanity’ defence with ‘not criminally responsible on account of a mental disorder’.  The amendments in Bill C-30 followed an earlier Supreme Court decision in R. v. Swain (1991) that found that the Criminal Code’s mandating the automatic detention of persons who are found not guilty by reason of insanity infringed on a defendant’s section 7 and 9 rights under the Canadian Charter of Rights and Freedoms.

In a recent trial, R. v. B.M., an Ontario Court ruled that a man accused of sexual assault was not criminally responsible and therefore, not guilty, due to the fact that he suffered from a sleep disorder and was not aware that he was doing anything wrong at the time of the incident. This case involved a man who entered a bedroom and sexually assaulted a friend while she was sleeping.

Background and Findings: R. v. B.M. (2018)

The complainant and the accused and were sleeping over at a mutual friend’s home after an evening of drinking. At some point during the night, the complainant awoke when she felt pressure in her buttocks and realized that her leggings and underwear had been pulled down to her knees. She saw the accused standing unclothed beside the bed with his eyes open and asked him what he was doing, but he did not reply and seemed dazed. The complainant then ran out of the room and reported the incident to her friend. The homeowners phoned 911 and asked the accused to leave, and noted that he appeared to not understand what was going on or why he was being asked to leave. The accused also gave the impression of still being intoxicated.

It is notable that the complainant and accused had been friends for some time before the incident and the accused had never before behaved disrespectfully towards the complainant or showed a romantic interest in her.  However, there were several previous incidents reported during the trial that involved inappropriate or odd behaviour by the accused towards other friends after an evening of drinking, including randomly taking off his clothing during a party, peeing on a Futon at his house, and touching another girl inappropriately while she was sleeping. The defendant had no memory of these and other events, and absolutely no memory of sexual assault or touching against the complainant, and he believed it was something he would never do.

The defendant had sustained catastrophic injuries in the past, including a severe head injury he suffered in a serious car accident shortly after graduating from High School.  As a result, he was in a coma for two weeks; had to re-learn how to walk and talk; and was left with a learning disability that impacted his future education and job prospects.  The defendant suffers from headaches, fatigue and sleep disturbances since being injured and was diagnosed with sleep apnea. At his neurologist’s recommendation, he was treated by a physician, Dr. Buttoo, who has training in several areas of specialized medicine and serves as the Director of the Centre for Sleep Disorders in Pickering and Bowmanville.

Dr. Buttoo testified that he believes the defendant suffers from confusional arousals or parasomnias (which includes sleepwalking and sexsomnia). The defendant’s family history and his serious head injury predispose him to sleep disorders and confusional arousal behaviours. The defendant’s brother and mother had a history of sleepwalking and sleep eating, respectively. And, migraine headaches due to a head injury such as the one suffered by the defendant, are known to cause sleep disorders, including sleepwalking and sleep breathing disorders.  Smoking, stress, caffeine and alcohol are triggers that worsen sleep apnea and can trigger a parasomnia or confusional arousal event. And, for someone who already has priming factors for this condition, it doesn’t take a significant amount of stress or another trigger to bring on the event.

Dr. Buttoo revealed that a sleepwalking person is difficult to awaken and can engage in quite complex behaviours with others while still appearing to be asleep.  Further, a sleepwalker doesn’t seek out a specific person to touch. Dr. Buttoo believed that the previous incidents where the defendant urinated on a futon while sleeping and sexually touched another person were sleepwalking episodes. The defendant had no memory of any of these episodes and close friends of the complainant and defendant testified that sexual assault or sexual touching were completely out of character for him.

The defendant told Dr. Buttoo of the sexual assault incident after it occurred and at that time, Dr. Buttoo stated that alcohol can play a role in confusional arousal. Since learning of this, the defendant stopped drinking; but continues to smoke which is also a potential trigger. Dr. Buttoo stated that if the defendant eliminated all triggers, then there is a low probability that another sexual assault or sexual touching incident would occur.

The Crown challenged Dr. Buttoo’s conclusions and asserted that the doctor was biased in his belief that the defendant’s actions were involuntary when he sexually assaulted the complainant.  However, Justice West disagreed and found that the doctor gave objective and helpful evidence and further, the Crown did not bring their own medical expert to challenge Dr. Buttoo’s testimony. 

Analysis and Conclusions

In R. v. Stone (1999), the Supreme Court of Canada stated that our laws presume that an individual’s acts are voluntary.  And, if a defendant is making a claim of automatism and is defending their actions on the basis of being involuntary, then the defendant bears the burden of rebutting the presumption that their actions were voluntary on a balance of probabilities.

On the question of the defendant’s motive, Justice West asserted that motive is not relevant to a determination on whether or not the sexual assault act occurred.  Justice West referred to R. v. Stone, where Justice Bastarache stated that, if an involuntary act is random and lacks motive, it increases the likelihood that the claim of automatism has merit.  Justice Bastarache also noted that it’s only in rare cases that automatism isn’t caused by a mental disorder and judges should assume that automatism is a mental disorder. 

Justice West also referred to R. v. Luedecke (2008), where Justice Doherty asserted that the defendant’s condition is a difficult problem for criminal law: the defendant in Luedecke committed a terrible action when he sexually assaulted a young woman but because his conduct was brought on by parasomnia, his actions are non-culpable under the law.  Also problematic is the fact that there is no guarantee that such episodes won’t reoccur, which raises public safety concerns. 

In the current case, Justice West concluded that the presumption of mental disorder automatism had not been refuted and the defendant was “in a dissociative state of automatism” (sleepwalking) when he inappropriately touched the defendant’s buttocks.  On these grounds, Justice West found the defendant not criminally responsible for his actions. 

If you have been unfairly accused of sexual assault, sexual touching or another sexual offence, talk to an experienced Toronto sexual assault lawyer to ensure the strongest possible defence.