The appellant sought leave to appeal from the dismissal of a summary conviction appeal after a sexual assault conviction, relying on fresh expert evidence that he was in a parasomnic state and should be found not criminally responsible on account of mental disorder.
The court applied the fresh evidence framework under s. 683(1) of the Criminal Code and held that, although the proposed defence was raised only after trial and first appeal, the evidence was legally admissible, sufficiently cogent, and not barred by any tactical failure at trial.
Competing expert opinions created a live evidentiary issue that a reasonable trier of fact could resolve in favour of the appellant on a balance of probabilities.
The conviction was quashed and a new trial ordered.
The new trial was limited to determining whether the appellant was NCR-MD or guilty.
