R. v. Hartman, 2018 ONCJ 899

WARNING

The court hearing this matter directs that the following notice be attached to the file:

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a).

(2) MANDATORY ORDER ON APPLICATION

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 OFFENCE

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

ONTARIO COURT OF JUSTICE

Date: November 19, 2018

Court File No.: Brockville 11-0341

Between:

HER MAJESTY THE QUEEN

— and —

RYAN HARTMAN

Before: Justice Kimberly E.M. Moore

Heard on: April 10-12, 2017; April 18-20, 2017; June 22, 2017; October 27, 2017; March 22-23, 2018; October 16, 2018

Reasons for Judgment released on: November 19, 2018

Counsel:

C. Breault — counsel for the Crown

M. Bojanowska — counsel for the defendant Ryan Hartman

MOORE J.:

OVERVIEW

1On February 11, 2011 Kyle Gordon and Faren McDonald hosted a party at their home in Oxford Mills. Numerous people attended, including Ryan Hartman, R.C. and her boyfriend M.T., Justin Dillabaugh and his girlfriend Dana Healey (who was also Mr. Gordon's sister), and a couple named Trevor and Lisa. These persons all spent the night. Two additional women, Erin and Vicki, stopped in at some point. It was unclear how long these women stayed, but they were not there when the party concluded and the last party-goers went to sleep.

2All of those who stayed the night consumed significant amounts of alcohol. During the evening, many engaged in different activities such as talking, dancing, socializing, drinking, music, pizza and games of beer pong.

3Mr. Hartman had met Mr. Gordon and Mr. Dillabaugh a few times before attending this party. It is unclear whether he had previously met Ms. Healey. Mr. Hartman did not know R.C. and M.T. before this evening. Mr. Hartman was thirty years old at the time of the party. R.C., M.T., Mr. Gordon and Ms. McDonald were each twenty-four years of age.

4The party wound down in the early morning hours of February 12, 2011. Mr. Gordon and Ms. McDonald slept in their bedroom. Mr. Dillabaugh and Ms. Healey slept on the loveseat. Lisa and Trevor slept on an air mattress on the floor in the living room. R.C. and M.T. slept on an air mattress on the floor in the kitchen. Mr. Hartman slept in a chair in the living room.

5At some point during the night Mr. Hartman went into the kitchen and got on the air mattress where R.C. and M.T. were sleeping. R.C. woke up to a pain in her anus, and her clothing down around her thighs. She had no idea how her clothing was taken down. R.C. got up and went to the washroom and came back and woke her boyfriend. They went into the laundry-room, which is located at the bottom of the stairs, and R.C. was very upset and hyperventilating. She was very upset and yelled to M.T. that she had woken up with "that man's" dick in her ass.

6Mr. Hartman then came out of the kitchen and walked past them. As he did so, he said, "I'm sorry man, I think I just woke up making out with your girlfriend."

7R.C. and M.T. left, and she called 911. She provided a statement that morning and attended for a sexual assault examination at the hospital.

8Many of the other witnesses provided statements to the police on the morning of February 12, 2011. Mr. Hartman was arrested that evening.

9The matter before me is a re-trial.

10On May 24, 2012 Mr. Hartman was found guilty of sexual assault by Anderson, J.

11On December 5, 2012 Mr. Hartman's appeal was dismissed in the Superior Court of Justice.

12Mr. Hartman appealed, and on July 6, 2015 the Court of Appeal granted the appeal, quashed the conviction and ordered a new trial "limited to a determination of whether the appellant was NCR-MD at the time of the assault or guilty as charged."

13The first appearance following the order of the Court of Appeal was on July 31, 2015.

14On October 13, 2015 trial dates were scheduled for April and May of 2016.

15On January 29, 2016 there was a change in counsel. Ms. Bojanowska came on the record as counsel for Mr. Hartman.

16On April 15, 2016 new trial dates were scheduled, for April 10-13 and 18-20, 2017. There was a waiver of section 11(b) at the time these dates were set.

17The trial commenced before me on April 10, 2017.

18Dr. Shapiro's evidence was given over a period of five days, most of that in cross-examination. Due to scheduling issues pertaining to Dr. Shapiro, counsel and court availability, his evidence did not conclude until March 22, 2018.

19Submissions on this matter had to be re-scheduled on two occasions for unavoidable reasons which resulted in counsel being unavailable. Ultimately counsel suggested that they do written submissions, so that the matter could move forward. These submissions were filed on September 19, 2018. Oral submissions, to clarify some of the issues, were heard on October 16, 2018.

MID-TRIAL MOTIONS

20I was asked to rule on two related matters during this trial.

21Two issues were raised at the Court of Appeal. One related to an allegation of incompetence of counsel. The other related to a request to adduce fresh evidence to support the defence of NCR-MD.

22As one of the issues pertained to an allegation of incompetence of counsel, Mr. Hartman was required to sign a waiver to allow Ms. Castle-Trudel to forward information to Crown Law Office Criminal. That information included handwritten notes that Mr. Hartman had made on February 15, 2011.

23During the appeal, Mr. Hartman was cross-examined on his affidavit as well as on these notes.

24I was alerted on the first day of trial, on April 10, 2017, that the Crown was requesting an order to be permitted to cross-examine Mr. Hartman on the following items:

i. Transcript of Mr. Hartman's evidence from the first trial

ii. Mr. Hartman's affidavit filed for bail pending appeal

iii. Transcript of Mr. Hartman's examination-in-chief and cross-examination before the Court of Appeal

iv. Two handwritten documents prepared by Mr. Hartman for his counsel

v. Ms. Castle-Trudel's affidavit for the Court of Appeal and attached exhibits

25Ms. Bojanowska, of course, took no issue with Ms. Breault cross-examining Mr. Hartman on his evidence at the first trial. Ms. Bojanowska objected to Mr. Hartman being cross-examined on any of the other materials, asserting that these were covered by solicitor client privilege.

26I ruled orally on April 11, 2017, that the Crown could cross-examine Mr. Hartman on the trial transcript as well as the affidavit filed with the Court of Appeal. I declined the request to cross-examine on any of the other information, as I found that there was no waiver of privilege beyond what was necessary to respond to the issues on appeal. I was not advised, at that time, that these materials had been provided to Dr. Shapiro, the expert who would be testifying on the trial before me.

27On June 22, 2017 Ms. Breault advised that she was seeking an order permitting her to cross-examine Dr. Shapiro on the handwritten notes made by Mr. Hartman. Written submissions were filed with the Court on August 15, 2017 and September 13, 2017. On October 24, 2017 I sent a written judgment to counsel.

28I held that Mr. Hartman had waived privilege when he provided those notes to Dr. Shapiro. Those notes were clearly indicated in Dr. Shapiro's report as materials Dr. Shapiro had received, and reviewed. I held that the notes may be relevant to the substance of Dr. Shapiro's opinion or to the issues of Dr. Shapiro's credibility and reliability. I further stated that, had I been aware at the time of the Crown's application on April 10, 2017, that the notes had been provided to Dr. Shapiro, I may have adopted the procedure in R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27 (S.C.C.). In other words, I may have permitted Ms. Breault to stand down her cross-examination of Mr. Hartman on issues pertaining to the report, until after Dr. Shapiro had testified.

29In Ms. Bojanowska's written submissions dated September 18, 2018, Ms. Bojanowska continued to take the position that there was no evidence that the handwritten notes had been made by Mr. Hartman or when they were made. I disagree.

30During the motion of April 10, 2017 the materials filed included the handwritten notes as well as the transcript of Mr. Hartman's evidence before the Court of Appeal. During cross-examination before the Court of Appeal, portions of those notes were put to Mr. Hartman and he testified that he had made those notes on February 15, 2011. In my judgment of October 24, 2017 I held that Ms. Bojanowska was aware that those notes had been provided to Dr. Shapiro. My judgment on that issue has been filed as an exhibit on this trial, and for the purpose of this judgment I will not address the issue further.

31I agree that the notes were never put to Mr. Hartman during the trial and adopted by him. There was no requirement that these notes be put to Mr. Hartman before Dr. Shapiro could be cross-examined on same. Of interest, I note that Dr. Gojer's report was put to Dr. Shapiro on countless occasions. I was not advised during the questioning of Dr. Shapiro of the date of Dr. Gojer's report. The only reference to the date of Dr. Gojer's report was contained within Dr. Shapiro's report. The report was not provided to the Court. Nor was it required to be. Counsel were entitled to question Dr. Shapiro on his review of Dr. Gojer's report, just as they were entitled to question Dr. Shapiro on his review of all of the materials that he had received, reviewed or created. Ms. Breault was entitled to rely on the knowledge that she had of when these handwritten notes were made, and then put these notes to Dr. Shapiro.

NON-CONTENTIOUS ISSUES

32I commend Ms. Breault and Ms. Bojanowska for their professionalism and diligence in narrowing issues prior to the commencement of this trial. It was very clear to me that both counsel very carefully turned their attention to the issues in this trial, and agreed upon the admission of evidence that is non-contentious. I will address a number of the admissions and the non-contentious evidence.

33It is not disputed that Mr. Hartman anally penetrated R.C. on February 12, 2011.

34The transcript of the evidence of Joseph Frappier, a forensic biologist with the Centre of Forensic Sciences, of April 17, 2012, was filed during this trial. Semen was detected on the front of R.C.'s underwear. Samples of Mr. Hartman's and M.T.'s blood were analyzed. Mr. Hartman was excluded as the source of this semen. M.T. was not excluded as the source of this semen.

35The following evidence from the first trial was filed on consent on this re-trial:

i. Identification Book of Photos (including photos of text messages between Ms. McDonald and R.C.)

ii. Additional Photos

iii. CFS reports pertaining to the analysis of DNA

36In addition, counsel agreed that transcripts of the evidence of the following Crown witnesses from April 16 and 17, 2012 could be filed on consent:

i. R.C.

ii. M.T.

iii. Kyle Gordon

iv. Faren McDonald

v. Justin Dillabaugh

37The transcripts of the evidence of these above witnesses were not filed by way of an agreed statement of facts, but rather as an acknowledgment that this was the evidence given by these witnesses. Given the passage of time between the events in February 2011 and the commencement of this trial in April 2017, this was a very logical decision made by counsel.

38An agreed statement of facts was filed pertaining to the police interview done by Cst. Joshua Dupuis with Mr. Hartman on February 12, 2011 between 7:06 p.m. and 8:42 p.m. During that interview Cst. Dupuis advised Mr. Hartman, inter alia, that he had laid down beside R.C. and anally raped her, and that there was no doubt that Mr. Hartman had stuck his penis into R.C.'s anus. Mr. Hartman was also told that this was not an assault of short duration as R.C. had spent the whole day at the hospital being swabbed all over.

WITNESSES AT TRIAL

39Ms. Breault called R.C. to testify at this trial, specifically to address issues that may be relevant to the specific defence presented by Mr. Hartman. Ms. Bojanowska cross-examined R.C. as to these issues, and other issues relating to credibility and reliability.

40Mr. Hartman testified on his own behalf and also called further evidence relevant to the issue of sexsomnia. His mother, Marsha Hartman, testified as to Mr. Hartman's experiences with sleepwalking and rocking in his sleep as a child. Mr. Hartman's fiancée, Heather Childs testified as to episodes of sexual touching that Mr. Hartman engaged in during his sleep, when they were in bed together.

41Dr. Colin Shapiro, an expert in the area of parasomnia, and responsible for coining the phrase sexsomnia, testified as to his meetings with Mr. Hartman, sleep studies conducted on Mr. Hartman, and his review of materials. Dr. Shapiro provided the opinion that Mr. Hartman was sleeping at the time he committed the sexual assault upon R.C., which is evidence of a parasomnia.

42In reply evidence, the Crown called Mr. Daryl Mayers, a toxicologist with the Centre of Forensic Sciences.

43I will first address the evidence of the witnesses pertaining to the events at the party. I will then address the evidence of the witnesses addressing the issue of sexsomnia.

EVIDENCE – THE EVENTS OF FEBRUARY 11 TO 12, 2011

R.C.

44R.C. and M.T. arrived at the party at around 8:30 p.m. There were a number of people there, including a couple she had not met before – Lisa and Trevor. R.C. did not know Mr. Hartman prior to this night and was not introduced to him formally. She recalled a few other women dropping in throughout the evening and leaving.

45She spent the evening talking, drinking, listening to music and socializing. R.C. agreed with Ms. Castle-Trudel (who was counsel at the first trial) that she had been dancing, but disagreed that she had been dirty-dancing. R.C. also agreed with Ms. Castle-Trudel that M.T. had been drinking shots of alcohol off her chest (referred to as body shots) and that she had been standing and clothed while he did this.

46R.C. and M.T. brought a "24" of beer. She consumed about ten of these and also had five "shots". She agreed she was drinking heavily and was still feeling the effects of alcohol in the morning. R.C. agreed that her memory as to some details was unclear due to alcohol consumption.

47The party took place downstairs in Ms. McDonald's basement apartment and also in the garage upstairs. They played beer pong on the ping pong table in the garage. She did not recall Mr. Hartman playing beer pong.

48She had an argument with Mr. Dillabaugh during the course of the evening as he called her trashy. R.C. also said there was an issue with Mr. Hartman and his snowmobile. She also recalled Ms. McDonald being upset and wanting Mr. Hartman to leave. R.C. thus asked Mr. Hartman to leave, but he did not.

49R.C. spoke to Mr. Hartman twice throughout the evening – once to ask him for a cigarette and once when she asked him to leave.

50R.C. went to sleep at around 2:30. Ms. McDonald had helped blow up air mattresses for the people staying over. R.C. and M.T. slept on one in the kitchen.

51R.C. was aware of Mr. Dillabaugh and Ms. Healey and Lisa and Trevor spending the night. She was not aware of anyone else staying there, and specifically indicated she did not see Mr. Hartman. She believed that Ms. Healey was on the couch and Mr. Dillabaugh was on the floor, and that Lisa was on the air mattress.

52She didn't recall seeing anyone on a chair at the first trial but agreed with Ms. Bojanowska that Mr. Hartman had been sitting in a chair. Ms. McDonald and Mr. Gordon slept in their own bedroom.

53R.C. believed the air mattress was a double size, but agreed that she had told the police that it was a queen. There was only one pillow and one sleeping bag, and not enough room for anyone other than them. She fell asleep with her arms wrapped around M.T., spooning him (his back was to her), sharing the pillow. R.C. testified as follows as it pertained to the space taken up by her and M.T.:

Q. When you went to bed that night to go to sleep, how much of the mattress did you and your boyfriend take?

A. At least two-thirds, because we were sharing a pillow, so we were pretty close together.

Q. It would be two-thirds of the mattress.

A. At least.

54She was awoken by an uncomfortable pain in her anus. She was laying on her side and put her hand beside her and there was a person there. She pushed the person away and felt soft clothing. This person had his hand on her hip and when she pushed him away he completely withdrew from her body and went limp. This person was making sounds that she described as fake snoring. R.C. stood up and said something such as "what the f". The room was completely dark. She pulled up her pants and went into the washroom. She closed the door and then peed. She then came out and left the light on in the washroom to shed light into the kitchen. This light allowed her to see that the person had dark hair. She never said anything to Mr. Hartman at this time. She woke M.T. up by shaking him vigorously and went to get her phone, and then walked to the stairwell that leads to the garage. M.T. did not say anything when he was still laying on the bed. She started to hyperventilate and cry in the stairwell. M.T. asked her what happened and she yelled "I just woke up with that guy's dick in my ass, he just fucked me in my sleep."

55Ms. McDonald came out and asked what was going on. R.C. grabbed a beer that was on the freezer and started drinking it. Mr. Hartman walked behind them towards the stairs. As he walked past he said, "I'm sorry man, I just woke up making out with your girlfriend." In cross-examination by Ms. Castle-Trudel, R.C. clarified that after Mr. Hartman said "sorry man" or "sorry dude", he then said, "I think I just woke up making out with your girlfriend." R.C. agreed that she never saw Mr. Hartman's penis and that his eyes were closed when she saw him laying on the mattress after she came out of the washroom.

56Mr. Hartman then went up to the garage. When R.C. and M.T. went upstairs to leave, Mr. Hartman was sitting in the garage with his head in his hands.

57R.C. agreed that she was slipping in and out of consciousness and thought she was having a dream when this happened.

58When she went to sleep she was fully clothed – wearing a thong, skinny jeans that were tight to her body, a belt, a black tank top and a wool grey camisole that was like a jacket. When she awoke her pants and belt were undone and pulled down to her upper thigh. The belt was still in the loops, just undone. She was asked to describe how the belt would be undone and she said that to she needs to pull back on her right side to remove it, and she was laying on her right side. R.C. agreed with Ms. Bojanowska that she had no memory of them being removed and agreed that she did not know if she had played a role in removing them.

59She believed that she was awoken between 6:15 and 6:30 as she had set her alarm for 6:45 and it hadn't gone off.

60When they left Ms. McDonald's she texted her sisters and then called 911. R.C. provided a statement that day and also went to the hospital for a sexual assault kit.

61Clips of Mr. Hartman during sleep studies conducted were played by the Crown for R.C. She was asked whether the noises she heard were similar to what she heard on February 12, 2011. Her evidence was that she recognized the snoring in those clips as real snoring and described the sounds coming from Mr. Hartman on February 12, 2011 as being faked.

62R.C. was asked her height and said that she was 5'8". She also advised that M.T. was 5'10" to 6'0" and weighed about 180 pounds.

63R.C. agreed with Ms. Bojanowska that she had been advised that the issue to be determined at the re-trial was whether Mr. Hartman was sleeping at the time of the incident and she had been told of the term sexsomnia.

M.T.

64M.T. had been dating R.C. for about a year at time of the incident. They were no longer together at the time of the trial. He had not planned on drinking as much as he did, but decided to stay over due to the amount of alcohol consumed.

65This was the first time he had met Trevor, Lisa and Mr. Hartman.

66Everyone was drinking but no one was "fall down drunk." M.T. had no recollection of dancing with R.C. and no recollection of doing body shots but agreed that he may have.

67Mr. M.T. stated that R.C. had a lot to drink that night and was dancing and having fun. Mr. Dillabaugh, whose girlfriend is much more reserved, got upset with R.C. and told her to calm down. R.C. then got mad with M.T. when he didn't back her up during this argument she had with Mr. Dillabaugh.

68He confirmed the locations of where people slept: Ms. McDonald and Mr. Gordon in their bedroom; Ms. Healey and Mr. Dillabaugh on the couch; Trevor and Lisa on an air mattress in the living room and he and R.C. on an air mattress in the kitchen.

69The air mattress was a double and they had one pillow. He did not recall having a sleeping bag or cover. His recollection was that when they went to sleep they were facing each other and had arms around each other

70He thought that it was after 3:00 when he went to bed, and he believed Ms. McDonald was still up when he went to bed, although he didn't doesn't know where Kyle was.

71He was awoken by R.C. shaking him. Once she realized he was awake she took off to the laundry room.

72As M.T. was starting to stand up he realized that Mr. Hartman was on the bed and M.T. believed that Mr. Hartman may have mumbled something under his breath about making out with his girlfriend. Mr. Hartman was laying on his back and was more or less face up. Mr. Hartman's eyes were open but they didn't make eye contact. M.T. did not notice that Mr. Hartman's pants were unzipped.

73M.T. went to talk to R.C. and she was basically incoherent – hyperventilating and crying. Ms. McDonald came out to comfort R.C. who kept saying she wanted to leave so M.T. went into the kitchen to get their belongings. He returned to the laundry room. Mr. Hartman came through and as he was walking towards the stairs he also made a comment about making out with M.T.'s girlfriend.

Faren McDonald

74Faren McDonald and Kyle Gordon had been together for about ten years at that time. She had invited a number of people over for that evening. Ms. McDonald and R.C. were good friends.

75Mr. Hartman was there when she came home from work. She did not know him prior to that night. Mr. Hartman was working on Mr. Gordon's snowmobile in the garage with Mr. Gordon. Mr. Hartman also showed up later at the party. She had not invited him, but he had said when he was there earlier that he may come back. Ms. McDonald did not want Mr. Hartman there. Mr. Hartman did not spend much time with them in the garage. He drank with them, worked on the snowmobile and then spent a couple hours downstairs in her apartment. On one occasion when Ms. McDonald went down to her apartment to check things out, Mr. Hartman was sitting on the love seat, in the spot where there was no cushion, and Ms. Healey's feet or legs were on top of him.

76Mr. Hartman made a comment during the party that R.C. and M.T. should get a room as they were all over each other. Ms. McDonald agreed that they were making out, and stated that it was very clear to everyone there that R.C. and M.T. were a couple. Mr. Dillabaugh verbally objected to R.C.'s behavior when she was dancing and called her white trash.

77At one point Mr. Hartman started to paint the snowmobile in the garage, and the paint fumes were such that the door had to be opened. R.C. asked Mr. Hartman to leave at this time.

78Ms. McDonald acknowledged having consumed a lot of alcohol. She said that she would not have driven but did not feel that she was drunk.

79She believes she went to bed between 3:00 and 3:30. R.C. and M.T. were already sleeping when she went to bed.

80Ms. Healey was sleeping on the love seat couch. M.T. and R.C. were to sleep on the air mattress in the kitchen and Trevor and Lisa were to sleep on the air mattress near the laundry room. Mr. Dillabaugh was to sleep with Ms. Healey (who is Mr. Gordon's sister) on the couch. Ms. McDonald and Mr. Gordon slept in their bedroom.

81When she went to bed Mr. Hartman was sitting in the lazy boy.

82Mr. Gordon was not in bed yet when she went to bed. She believed that he was getting the rest of the blankets and getting everyone situated. She also believed that Mr. Gordon was the one who got the air mattresses and blankets for people.

83When everyone was starting to go to bed Mr. Hartman came into her room and asked her for a pillow and she gave him one. She then heard someone ask him which chair he was going to sleep in, but she did not see which chair he went to sleep in.

84She was awoken by the sounds of someone crying or being sick. She thought it might have been Ms. Healey as she had gone to sleep early that night. R.C. was in the area outside of her main door, where one would go up the stairs. R.C. was on her knees and hyperventilating. M.T. was not in the room. She thought that he was just getting up. Ms. McDonald asked what happened and R.C. said she woke up with that guy's dick in her ass. She did not say a name. Ms. McDonald asked where Mr. Hartman was and R.C. said he was upstairs. Ms. McDonald went upstairs and Mr. Hartman was having a cigarette. She asked him what the fuck had happened and he replied, "I don't know. I woke up to your friend making out with me." She did not say anything else to him

85R.C. and M.T. left. Ms. McDonald talked to Ms. Healey and Lisa and Trevor and asked them what happened, and told them what she knew.

86She went into her room to tell Mr. Gordon. She told him R.C. had been raped but he wasn't completely awake so it didn't register. She thus repeated it, and while doing so she received a call from M.T.

87R.C. and Ms. McDonald exchanged texts. The texts began at 6:21 am so we know that the incident took place before that.

Kyle Gordon

88Kyle Gordon was friends with M.T. He had met Mr. Hartman a handful of times prior to the party. Mr. Hartman was at Mr. Gordon's that day helping Mr. Gordon with the suspension on his snowmobile. Mr. Hartman left at around 5:00 to go to his job as a pizza delivery man.

89Mr. Gordon invited him to come back after work and Mr. Hartman did. Mr. Gordon thought that he returned at around 11:00.

90Everybody was drinking. Mr. Gordon believed himself to be drunk and believed Mr. Hartman to be drunk.

91They partied in the garage as this is where the music was. The garage was heated and it was roomier than the apartment.

92During the evening Mr. Hartman said that he hadn't had sex in a while and he was horny.

93Mr. Hartman did not hang out much with the guys while he was there. Mr. Hartman spent most of the evening downstairs watching TV. At one point Mr. Gordon went downstairs and Mr. Hartman was watching TV. At that time, Mr. Gordon's sister Ms. Healey was sleeping on the love seat. Ms. Healey was the first one to go to sleep that night.

94Mr. Hartman left at one point to go get his snowmobile and return. There was no evidence as to what time this was.

95At around 2:00 a.m. Mr. Hartman came upstairs to the garage and started to paint the exhaust on Mr. Gordon's snowmobile. Mr. Gordon had not asked him to do this. He was not upset that he was painting without his permission, but they all asked him why he was doing that as it was causing fumes. Mr. Gordon told him to stop and he thought Ms. McDonald also told him to stop. They had to open the door because of the fumes and this let the heat out.

96Mr. Gordon recalled going to bed at around 3:30. Mr. Gordon, Trevor and Mr. Dillabaugh were the last to go to sleep. Ms. Healey and Lisa had been alone on the respective loveseat and air mattress until the three guys came downstairs. Ms. McDonald was already in bed. R.C. and M.T. were already asleep on the air mattress in the kitchen when he went to bed.

97He and Ms. McDonald slept in their bedroom. Mr. Hartman was in the grey lazy boy at the farthest end of the room. Ms. Healey and Justin were on the loveseat. Lisa and Trevor were on the air mattress in the living room. R.C. and M.T. were on the air mattress in the kitchen.

98Mr. Gordon believed that he had blown up the air mattresses that night.

99Mr. Gordon spoke to Mr. Hartman before he went to bed. Mr. Hartman was in the grey lazy boy at that time. Mr. Gordon asked Mr. Hartman if that was where he was going to sleep and Mr. Hartman said yes. Mr. Hartman was watching TV at that time.

100He was woken in the morning when Ms. McDonald woke him to say that R.C. and M.T. were leaving. He did not get out of bed and just went back to sleep. He thought that this was at around 6:00.

Justin Dillabaugh

101Justin Dillabaugh acknowledged that he was extremely intoxicated and had little recall of the night. He agreed with Ms. Castle-Trudel that there were blanks in his memory of the evening.

102Mr. Dillabaugh knew Mr. Hartman through a friend of a friend and had met him a few times before that night. Mr. Dillabaugh brought his girlfriend Ms. Healey down to sleep on the couch as she wasn't feeling well. Mr. Dillabaugh did not know where Mr. Hartman was when he first brought Ms. Healey downstairs.

103Other than Ms. Healey and Mr. Hartman, everybody was in the garage. Mr. Dillabaugh checked on Ms. Healey 3-4 times and at one point Mr. Hartman was seated in the chair right in front of the TV. Mr. Hartman moved from the chair because when Mr. Dillabaugh came down again, Mr. Hartman was then sitting on the couch right beside Ms. Healey, and Mr. Hartman had Ms. Healey's legs on top of him.

104Mr. Dillabaugh nicely asked Mr. Hartman to move to the chair and he did.

105Mr. Dillabaugh thought that it was weird that Mr. Hartman was sitting beside his girlfriend.

106He had no other interaction with Mr. Hartman during the course of the evening. He went to bed when the majority of people did, and believed it was around 3:00. He was not asked where Mr. Hartman was when he went to bed, but said that he never saw Mr. Hartman sitting in the lazy boy.

Ryan Hartman

107Ryan Hartman has been in a relationship with Ms. Childs since 2008. At least half the time that they have sex it is anal. He and Ms. Childs engaged in anal sex the morning of February 11, 2011. Mr. Hartman is 6 feet tall and weighs about 200 pounds.

108Mr. Hartman testified that he was at Mr. Gordon's for about 4 hours in the afternoon of February 11, 2011 to help him with his snowmobile. Mr. Hartman left to go to work delivering pizza. He had to be at work for 5:00. Mr. Gordon told Mr. Hartman he was having a party that night and he wanted Mr. Hartman to come back and party with them that evening. Mr. Hartman worked for several hours delivering pizza and then went home before returning to Mr. Gordon's. He got there at around 8:45 p.m. When he arrived the party was already ongoing. People were talking and dancing and there was music playing. He had one tall boy beer at this time.

109Mr. Hartman and Mr. Gordon worked on the snowmobile for about an hour and then Mr. Hartman left and went to get his own snowmobile and came back. Mr. Hartman arrived back about an hour later, at around 10:45 p.m.

110Then Mr. Hartman drank and worked on the snowmobile some more. He was drinking doing shots of cranberry vodka and red bull that Ms. Healey had brought out.

111He went downstairs to have a slice of pizza at some point after midnight and then went back upstairs. They played beer pong and had more drinks.

112Mr. Hartman continued to work on the snowmobile. He spray-painted the muffler on the snowmobile at around 1:45 a.m., and he opened the door to clear out the paint fumes. R.C. asked him to stop working on it as people just wanted to party.

113At around 2:00 a.m. he went downstairs and watched a portion of a movie. He had two beers and a glass of water while watching the movie. He sat on the sofa to watch the movie. Ms. Healey was already lying on the sofa. He had been sitting there for 5-10 minutes when Ms. Healey stretched her legs out on him. About 2-3 minutes later Mr. Dillabaugh came down. Mr. Dillabaugh said "hey man that's my spot" and Mr. Hartman said "sure" and moved. Mr. Hartman advised that Mr. Dillabaugh was not mad. Mr. Hartman also testified that he knew Mr. Dillabaugh and had partied frequently with Mr. Dillabaugh. Once Mr. Dillabaugh sat there, he stayed there and did not leave again. This is where Mr. Dillabaugh slept that night, along with Ms. Healey.

114Mr. Hartman fell asleep in that armchair. He woke with a kink in his neck and looked around for a place to sleep. The room was dark except for the backlighting from the TV. He saw that the couch was taken up fully and that the air mattress behind him was taken up fully. He turned his head to the left and saw that there was half an air mattress available in kitchen. He turned the TV off, went over to mattress and lay down. R.C. and M.T. were spooning or cuddling. He turned his back to them as this is way he usually sleeps and also because they are strangers - people he doesn't know. He fell asleep almost instantaneously.

115He was asked by Ms. Bojanowska what the next thing he could remember was, and he said that it was overhearing a commotion or yelling. He heard R.C. telling M.T. that he had raped her in the butt. R.C. and M.T. were in the access corridor at the time. He did not recall R.C. or M.T. saying anything else.

116No one else was on the air mattress at that time.

117He opened his eyes and looked at the ceiling, and then realized that he had an erection and that his fly was down. He repositioned his erection in his pants and zipped up his fly.

118He was drunk, just awake, confused and frightened.

119R.C. was loud and yelling and crying.

120He walked out to where R.C. and M.T. were. He said to M.T., "I'm sorry man, I think I just made out with your girlfriend"

121Ms. Bojanowska asked him why he said this and his answer was as follows:

A. Well, I had just woke up being accused of raping somebody. I know I wouldn't do something so severe, so, in my mind, there had to have been something less significant to that, and the first that came to my mind was making out. I was trying to get a grasp on the situation.

122He then walked up to garage and had a cigarette.

123Ms. McDonald came up and looked at him and said "I don't know what to say to you right now" and he replied "I don't know what to say either."

124M.T. and R.C. came up, walked through the garage and left. They hit his snowmobile as they were leaving and he moved it.

125Mr. Hartman agreed with Ms. Breault that it showed a lack of judgment to sit next to Ms. Healey, and he advised that this is part of his condition, or his inability to assess social situations. However, he said that he did not think there was anything wrong in doing this and further stated that Mr. Dillabaugh did not think it was wrong either.

126In cross-examination Mr. Hartman recalled that Ms. McDonald came down when he was sitting on the couch to get the air mattresses ready for everybody. His evidence was that she got them out and then everyone set up their own mattresses. Mr. Hartman also said that he assisted Trevor and Lisa with inflating their mattress. Mr. Hartman testified that Mr. Dillabaugh was one of the first ones to come down and go to sleep, and that everyone came down to go to sleep at around the same time.

127Mr. Hartman recalled that his last drink was at around 2:30 and that he fell asleep at around this time in the armchair in front of the TV, with the TV still on.

128Mr. Hartman confirmed the locations of where people slept: Ms. McDonald and Mr. Gordon in their bedroom; Ms. Healey and Mr. Dillabaugh on the couch; Trevor and Lisa on an air mattress in the living room; and M.T. and R.C. on an air mattress in the kitchen.

129Mr. Hartman testified that he fell asleep in the armchair in front of the TV, and was very clear that he had never been in the lazy boy chair. Mr. Hartman was asked why he kept the TV on if he was going to sleep and he testified that is part of his nightly routine – to fall asleep while watching TV.

130Mr. Hartman had limited interaction with R.C. this evening. He recalled her asking him for a cigarette and telling him to stop painting the snowmobile as they wanted to party.

131He agreed that he noticed R.C. and M.T. kissing and jokingly stated "get a room." There was no response to this comment. He also agreed that he and Mr. Gordon had been talking about sex, but he could not recall the specifics of what they said. He was clear however that he had not said that he was horny and he knows he did not say he had not had sex in a while as he had sex earlier that day with his fiancée.

132Mr. Hartman was clear that he only went downstairs from the garage two times –– once to have a slice of pizza with others and then when he finally went down and stayed there.

133In examination-in-chief Mr. Hartman stated that he had five tall or king cans of Dab beer, 6 Lakeport beer (which we learned was actually Carling), 8-9 shots of cranberry vodka mixed with Red Bull energy drink, and whatever beer he consumed playing beer pong. He could not quantify the amount of beer consumed while playing beer pong. One of the king cans was consumed when he first got there at 8:45. The remainder was consumed between 10:45 and 2:30.

134In cross-examination Mr. Hartman agreed that that he had consumed a lot of alcohol at the party. He agreed that he probably consumed more than what he told Dr. Shapiro as he had also drank beer during the beer pong. Mr. Hartman was very reluctant to acknowledge his level of impairment but eventually conceded that by the end of the evening he was drunk.

135Mr. Hartman was asked about the statement in Dr. Shapiro's report, which states, "[w]hen I asked further about the drinking on that evening, he estimated that he had 20 to 21 drinks, five of which were tin cans, nine shots of Red Bull and vodka, and six to seven other beers. He estimated that at the time he was drinking about that much approximately twice a month." Mr. Hartman first told Ms. Breault that if that was in the report then he has to agree. He then stated that he believed that Dr. Shapiro misinterpreted that, as what he meant was that he probably drinks that much over the course of a month.

136Ms. Breault asked Mr. Hartman questions about the lazy boy chair and Mr. Hartman's evidence was as follows:

i. Mr. Hartman did not see the lazy boy when he was at the apartment. He did not know that it was there until he saw the pictures.

ii. He was facing the TV and this is why he would not have seen it.

iii. He would not have been able to see the TV if he had sat in the lazy boy, due to the angle.

iv. He agreed that he walked right by the chair when he went to Ms. McDonald's room to get a pillow.

v. He was unaware that two witnesses had testified that he was in that lazy boy

vi. He agreed that if he had seen the lazy boy this would have been quite comfortable to sleep in.

137It was suggested to Mr. Hartman by Ms. Breault that it could have been 5:30 a.m. or even 5:45 a.m. when he went to lay on R.C.'s air mattress, and he said he had to agree with that as he had no idea what time it was. He then clarified and said that it could not have been that late as The Exorcist was still on. After further cross-examination he agreed that he did not in fact know what was on when he woke up. In re-examination Ms. Bojanowska asked him about this issue also and Mr. Hartman stated that he had no memory of The Exorcist being on, just that the TV was on.

138Both counsel asked Mr. Hartman why he chose to go sleep on the air mattress where R.C. and M.T. were sleeping. He advised that there was lots of room for the three of them to sleep comfortably. He also stated that he could not sleep on the floor as it is too uncomfortable, he did not see the lazy boy, and there was no room on the air mattress where Trevor and Lisa were sleeping.

139Ms. Breault asked Mr. Hartman in cross-examination to confirm that he had no memory between laying down on the air mattress and hearing the commotion and he agreed that this was correct. He also agreed that it was correct that he had never had any memory of anything taking place between those two points in time.

140Ms. Breault returned to this issue later in cross-examination, and the following exchange took place:

Q. Let's go back to the night in question where you're lying next to R.C. and she feels pain because you've inserted your penis in her anus. We're at that point. Can you feel your penis in her anus?

A. No.

Q. Can you feel anything around you at that point?

A. I have no recollection.

Q. It's zero recall.

A. Zero memory. I was asleep.

Q. Do you recall M.T. getting up?

A. No.

Q. Do you recall her getting up?

A. No.

Q. Do you feel anything around you?

A. No, I don't. I have no recollection of anything.

Q. So you can't feel anything, you can't hear anything, and you have no control over your actions, because you're just sound asleep.

A. I have no recollection of anything.

Q. When you testified at the trial, you testified that you did feel something.

A. Oh, the hand on my hip, yeah.

Q. Yeah. So you did....

A. Sorry, I thought you meant like movement or anything like that. Sorry, again, I was confused.

Q. Okay. Well, it just happens that the hand on the hip is at the same time that your penis is in her anus, correct.

A. That's the assumption. That's the accusations.

Q. That's what.....

A. Again, I have no recollection of the incident.

Q. Well, you're awake because you can feel her hand, correct?

A. I testified that, yeah. I remember feeling a hand.

Q. Then you're awake, correct?

A. No.

Q. Well, how do you feel her hand if you're not awake?

A. I just remember a hand on me, just a touch, and that's all I can remember from the whole incident, unfortunately. The next thing, I remember waking up and hearing an accusation that I just raped somebody in their sleep in their anus.

Q. Where did you feel her hand?

A. On my hip or my leg.

Q. So when we put it together, it's definitely R.C.'s hand, correct?

A. I'm going to go with the assumption. I'm going go with yes, if they remained in the same places that they were sleeping.

Q. But I'm trying to figure out that you could feel a touch, you can know it's a hand, and you can know on what on what part of your body it is. Like you're actually conscious, because you can put it all together, correct?

A. I wouldn't say I was conscious by any means.

141Later in his evidence Mr. Hartman states that he was semi-conscious but not fully awake.

142Mr. Hartman disagreed with Ms. Breault that he had his eyes open when he was laying on the air mattress with M.T. there. He also stated that the only time he said anything was when he walked through the access corridor to go upstairs.

143In re-examination Mr. Hartman clarified that he does not know how close in time the feeling of the hand on his hip or leg was to when he heard the commotion. He also did not recall the hand pushing him – it was just a touch.

THE EVIDENCE RELEVANT TO PARASMONIA AND SEXSOMNIA

Ryan Hartman

145Mr. Hartman advised that he was diagnosed in grade 3 with ADHD. He was diagnosed with Asperger's Syndrome in late 2012 or early 2013 and also OCD. He told us that the ADHD and OCD are part of the Asperger's.

146He had night terrors from the age of 4 to around 8-10. During this same time frame he suffered from nightmares. When he had these nightmares he would wake up screaming and run to his parents' room to sleep with them.

147Mr. Hartman rocked himself to sleep until approximately the age of 16.

148He has been told that he sleepwalked when younger and also told he snores, but he has no personal knowledge of these things.

149He has been told he has sexsomnia.

150As a result of being charged his behavior has changed in many ways, including the following:

i. He used to always help people. He does not go out of his way to help people anymore.

ii. He does not go to social gatherings.

iii. He does not meet new people.

iv. He does not sleep over at anyone's home as he does not trust himself.

v. If his nieces and nephews, sleep over, he does not share a room with them and does not sleep in the tent with them if it's a camping night.

151In cross-examination Mr. Hartman was asked what information Ms. Childs had shared with him, and when, pertaining to sexual acts he has committed in his sleep. He advised that there was one time that Ms. Childs had told him he was masturbating in his sleep. Ms. Childs told him that she tried to wake him and he looked startled. Mr. Hartman was very embarrassed about this. This is the only time that she told him of this and he put this out of his mind.

152Mr. Hartman's evidence as to whether Ms. Childs had told him of other times that he had acted sexually in his sleep towards Ms. Childs, was confusing and difficult to follow. Mr. Hartman believed Ms. Childs told him he did this, but it was not frequent. He believed that she told him this before the charges were laid. He also pushed this information to the back of his mind.

153Mr. Hartman's sister (who is now, most unfortunately, deceased) was the person who first raised sexsomnia with him. He spoke with his sister and mother on Wednesday after his arrest. Mr. Hartman stated the following:

Yeah, she said "did you do it?" And I said "no". She said "I've heard about a case of sexsomnia." That was the last I ever spoke to her about it.

154The following exchange then took place:

Q. So, at that point, did you have any idea if you did anything in your sleep?

A. At that point, I did not know.

155Mr. Hartman clarified that while Ms. Childs had told him of the masturbation incident, he had not recalled that at the time that he spoke with his sister. He further confirmed that he had never spoken to his sister about it again. He did not recall the fact that Ms. Childs had told him that he had masturbated in his sleep until he met with Dr. Gojer.

156Ms. Breault inquired of the meetings that Mr. Hartman had with Dr. Shapiro. Mr. Hartman was clear that he had never spoken to Dr. Shapiro on the telephone and that he had only met with him on two occasions. The following evidence was given on this issue:

Q. Okay. So how many times did you meet with the doctor?

A. Dr. Shapiro?

Q. Yes.

A. On Tuesday when I arrived there I spoke briefly with him for 15, 20 minutes to discuss the sleep test that they were going to be doing.

Q. Okay. So the day of the testing.

A. Yes.

Q. So that would be the March 7th, that day.

A. Yes.

Q. But you didn't discuss the information in the report on that day.

A. No.

Q. Then when did you meet with him again?

A. It would have been right before the last test on the 9th, so I'd say sometime between 12:00 and 2:00.

Q. On which day?

A. That would be the 9th.

Q. Is it possible that you interviewed with them another time?

A. Nope.

Q. You're positive that it's only two times.

A. Yes.

157I note that Mr. Hartman gave this evidence on April 11, 2017. This was only five weeks after his two meetings with Dr. Shapiro.

Marsha Hartman

158Marsha Hartman advised that Mr. Hartman used to sleepwalk from between the ages of 5 and 7. He was not still sleepwalking in his teens to her knowledge. She could hear everything as they lived in an old farmhouse with squeaky floors. She would get up and re-direct him on occasion.

159Mrs. Hartman was asked if there were any other sleep-related issues when Mr. Hartman was in grade school and she said that he rocked in his sleep for years.

160Mrs. Hartman did not provide any evidence of Mr. Hartman suffering from nightmares that would result in Mr. Hartman coming in to sleep with her and her husband.

161Mr. Hartman was diagnosed in grade 3 with ADHD. Mr. Hartman went on medications once (in grade 7-8), but only stayed on these for 3 months and then stopped (with her support).

162As a child Mrs. Hartman also used to sleepwalk (at around the same age as her son) and she believed that she has Asperger and ADHD (although not officially diagnosed). She has also been advised that she snores, and she confirmed that her late husband also snored.

Heather Childs

163Heather Childs has been in relationship with Mr. Hartman since 2008 and living with him since 2009. The majority of their sexual activity is anal intercourse and has been since the beginning of their relationship. She usually wears a t-shirt or long sleeve shirt and loose pajama bottoms to bed. They usually have sex 2-3 times per month. She believed that he masturbated approximately once per week. When advised that Mr. Hartman had testified that he masturbated daily, she clearly did not know this. Ms. Childs advised that Mr. Hartman sleeps to her right, so if spooning her his right arm would be over top of her.

164When asked about Mr. Hartman's alcohol consumption she was clear that he would not drink a case of beer in a month. She stated that he probably drank more when they were first together but still not one per day.

165Ms. Childs has never known Mr. Hartman to sleepwalk.

166Ms. Childs described what she referred to as the masturbation incident. She described it as follows:

A. Where I was asleep beside him, and I had...I was woken up from the bed being gently rocked back and forth, and I mean I was asleep. So it took me a couple of seconds to realize what was going on, and I woke up a little bit more.

And I looked over to my right-hand side and saw Ryan in a lotus...his legs were in a lotus position. His eyes were closed. He was completely naked, and he had his hand on his penis, and he was masturbating.

Q. Okay. How long did this incident last?

A. Hmm, well, I called out. It lasted for a couple...a minute or two, because I was trying to wake him up, and he was still continuing in the act of masturbating. I called out his name quite loudly three or four times, as well as I shook him very forcefully three times...three or four times to wake him up. Even after calling his name out, several times, he still did not respond.

Hmm, it was after that I was shaking him that he opened his eyes. He stopped masturbating, opened his eyes, but he wasn't looking at me and he didn't seem to be aware of anything that was going on.

Q. Okay. You said he was not looking at you when you did shake him out of that state.

A. Hmm, hmm.

Q. He was not looking at you, but his eyes were open.

A. His eyes, they seemed...his eyes were open, but he did not seem to recognize me or just be aware of his surroundings.

Q. Okay. Once sort of his eyes opened, what happened next?

A. He still did not recognize me, and he curled into like a semi-ball and continued to sleep.

167Her evidence at trial was that this had taken place prior to Mr. Hartman being charged with sexual assault. Her testimony at the discovery of August 28, 2014 was put to her in cross-examination, wherein she had said that the masturbation incident had not happened until after he was charged. Ms. Childs stated that this was incorrect and she was mistaken when she gave that evidence and that she was under a lot of stress due to her own medical issues. In re-examination, Ms. Childs's affidavit was put to her, wherein Ms. Childs had said that this took place before Mr. Hartman was charged with sexual assault.

168When she discussed this with him the next day Mr. Hartman was very embarrassed and had no memory of it.

169This was the only time that she had seen him masturbate in his sleep.

170Ms. Childs testified as to other sexualized behavior that Mr. Hartman has engaged in while sleeping. She stated in examination-in-chief that, "[t]here have been a few incidents where he has awoken me in the middle of the night, trying to put his hands down my pants, by putting his hand under my waistband and resting his hands on my hips and kind of rubbing my hips."

171She explained that when he does this she just pushes his hand away and he continues sleeping.

172In examination-in-chief she stated that this happens a couple times per month, and that it has been happening since they first started to sleep next to each other.

173Ms. Breault tried to ascertain the number of times that he would rub her hips in his sleep and when suggested that a couple times per month would be 24 times in a year, Ms. Childs replied that it doesn't happen every month and she was simply averaging two times per month. When Ms. Breault then suggested that two times per month, or 24 times per year, would amount to 144 times in a 6 year period Ms. Childs said that seems high and stated, "I would say once every two months then."

174In cross-examination Ms. Childs was asked when she had told Mr. Hartman about these incidents of him rubbing her hips. Her evidence was that she had not told him prior to him being charged, and in fact not until after Mr. Hartman's sister brought up the issue of sexsomnia.

175In early 2017 there was one night when Mr. Hartman was thrusting quite forcefully against her. He did this twice that night, waking her from her sleep. She thus went to sleep in another room. She did not recall feeling an erection when he did this.

176Ms. Childs agreed with Ms. Breault that she told Dr. Shapiro about the incident where Mr. Hartman was pushing his hips against hers.

177Ms. Breault asked Ms. Childs about what information she received from Mr. Hartman about the incident. Ms. Childs testified that Mr. Hartman told her after he was charged, that he had been charged with sexual assault. He told her he had absolutely no memory of the incident. To the day of her testimony she believed that he has no memory of the incident. She has not asked him further as he has no memory.

178In re-examination, Ms. Childs was asked about the conversation with Mr. Hartman after he was charged and said the following:

A. I walked in the door. He was standing right at the door, and he was waiting for me. And he basically just blurted out that he had been charged with sexual assault.

Q. Okay. Tell us. Keep going. What happened after that?

A. I was in shock. Hmm, I asked like what happened? And he said he had no memory of what had happened.

Q. Okay. Did you go into any further details?

A. No.

Q. Okay. Do you recall prodding or asking him any further questions about that incident?

A. I mean I vaguely remember, you know, trying to inquire, being like "well, what did happen?" You know, I mean I remember asking that question over and over, but he didn't answer. He didn't have a memory of it. He couldn't answer me.

EVIDENCE OF THE EXPERT WITNESSES

Dr. Colin Shapiro

179Dr. Colin Shapiro was qualified, with the consent of the Crown, to provide opinion evidence as an expert in psychiatry, neuropsychiatry, and sleep disorders, including parasomnia and sexual behaviours that occur in the context of sleep disorders.

180Dr. Shapiro is a licensed physician who received his PhD in psychiatry in 1985. He is a founding president of the International Neuro-psychiatric Association. He has been the editor of a psychiatry journal for nearly two decades. He has published about 300 papers and over 15 books. The main area in which he has written and published is in the area of sleep. He is a member of numerous professional associations, including the American Sleep Society, the British Sleep Society and the Canadian Sleep Society. He has worked with the Sleep and Alertness Clinic at the Toronto Western Hospital since 1992, and was the director of that clinic until 2016. From 1991 to the present, Dr. Shapiro has been the director of the Sleep Research Laboratory. Dr. Shapiro has testified before many courts in Ontario, and elsewhere, on the issue of parasomnia, including sexsomnia. Many of his writings, presentations and interviews have pertained to parasomnias. Only a small percentage of Dr. Shapiro's clinical practice deals with parasomnia, and most of those cases are in his children's clinic, which he has been running for about ten years.

181Dr. Shapiro has written about the issue of alcoholic blackouts versus parasomnias and has conducted clinical and research experience in this area.

182Dr. Shapiro defined parasomnia as a group of disorders wherein people do things while they are sleeping that one would expect them to do while awake. Included in this would be eating, walking, talking, driving and engaging in sexual activity. Dr. Shapiro coined the phrase sexsomnia when he started to see a number of cases in which people were engaging in sexual activity in their sleep. Dr. Shapiro was clear that people can engage in complex activities while asleep, and referred to a number of examples to confirm same, including some which were the subject of criminal charges.

183Dr. Shapiro stated that parasomnia are, "often referred to as disorders of arousal, because the person is, in some ways, the brain is doing things that look like they're awake, but, in reality, they're not aware that they're doing it. If you're not aware, then it's more like you're asleep." He further advised that arousals from deep sleep are a thumb print for the parasomnia and that trigger for arousal could include sounds, touch, sleep apnea, alcohol and drugs. In the case before me Dr. Shapiro opined that the bouncy nature of the bed and small space could also trigger an arousal.

184Dr. Shapiro arranged for Mr. Hartman to participate in sleep testing at his clinic between March 7 and 9, 2017. The reports of these were filed. Evidence pertaining to the sleep testing included:

i. Testing was done over two nights and two days. Ideally he would have done three or more nights as the first night sometimes is an anomaly due to strange circumstances.

ii. On the first night Mr. Hartman did not consume alcohol.

iii. On the second night Mr. Hartman was asked to have 4-5 drinks so that they could determine the impact of alcohol.

iv. There were also tests during the day. On the first day, Mr. Hartman was requested to take naps at four different times to see how long it takes to fall asleep. On average he fell asleep within 15 minutes and he fell asleep each time.

v. After the second night, Mr. Hartman was asked to stay awake and did so.

vi. On the second night Mr. Hartman was hooked up to a CPAP machine as it had been noted on the first night that Mr. Hartman may have a breathing disorder, or sleep apnea.

vii. During the night of March 7, 2017 Mr. Hartman experienced a very clear episode of sexsomnia. This episode lasted about 4-5 seconds. Dr. Shapiro testified that it was a rhythmic back and forth motion and was "similar to what his now fiancé describes him doing in the home." Mr. Hartman fell back asleep very quickly after this arousal.

viii. Mr. Hartman had approximately 25.5 arousals per hour on the first night, where he would come to the surface and go back to sleep. Many of these occurred during deep sleep.

ix. Mr. Hartman experienced more deep sleep than what would be expected for a person of his age. His level of deep sleep increased on the night he had consumed alcohol.

x. Mr. Hartman wet the bed on the second night, (the night where he had consumed alcohol) and this was likely a parasomnia.

185Ms. Bojanowska asked Dr. Shapiro further about the episode of sexsomnia he had observed on March 7, 2017, and Dr. Shapiro stated as follows:

Again, if you were fully awake, it would take you a while to go back to sleep, and you don't go immediately back into deep sleep. You go into light sleep and then medium sleep, and then back into light sleep and maybe more medium sleep, and then you might get into a deep sleep. There isn't that sort of slow transition.

186A video excerpt of the sexsomnia viewed by Dr. Shapiro on March 7, 2017 was made an exhibit in this trial.

187Dr. Shapiro explained the difference between REM and non-REM sleep, advising as follows:

The importance of this is what are called non-REM parasomnias. So there's REM sleep, which is dreaming. It's related to dreaming sleep and non-REM sleep. Most kids who get up and walk in their sleep or do funny things in their sleep, they do it early in the night, and it's part of the non-REM time and it's part of the deep sleep. So he's having a lot of non-REM, very deep sleep. It's almost half when he's drunk the alcohol. So I think that predisposes to having parasomnia.

188As it pertains to the events in question, Dr. Shapiro opined that as Mr. Hartman had consumed alcohol this would have increased his level of deep sleep.

189Ms. Bojanowska asked Dr. Shapiro about one's ability to recall or be aware of events that take place during an episode of parasomnia, and Dr. Shapiro referred to the Luedecke case wherein the next day the accused had called a friend to comment on what a great party it was and when told that someone was raped at the party, he thought it might have been him. Dr. Shapiro further stated that although there may be an odd awareness there is no actual awareness. As it pertained to Mr. Hartman and his memories, Dr. Shapiro stated, "[s]o I suspect that, the same, he didn't know what was happening on that night in question. It's only when other people started saying something, he says, "oh, my gosh, I must have been doing this or that." That's, I think, the explanation."

190Dr. Shapiro was asked what diagnosis he made in this case, and he testified as to the possibilities he considered as well as the factors that contributed to this opinion. His evidence in examination-in-chief was as follows:

A. Well, I considered four possibilities. I thought that, number one, it is parasomnia, and that's what I believe it to be.

There clearly is the possibility and the reason that he's in court is that it could've been some sexual assault. The point that I think makes that much less likely is that he was very quick to say to the person's, who accuses him, then boyfriend, who was in the bed at the same time, "I think I was making out with your girlfriend." People who commit rape don't volunteer themselves as having done something which has huge consequences. I think there was a lot of other factors at play, as well.

I considered the case that was made by a lawyer in an earlier part of this trial that it might have been her having a dream. I think, you know, well, I didn't feel that there was a lot of evidence to support that really, although it could be a misunderstanding.

In theory, it could've been her partner who did it. But again, I think that there wasn't a lot of evidence to support it, but one really doesn't know for sure.

So if I had to say, you know, if I look at all the facts and try and put it together, when I say "look at the facts," you know, part of the report gets into what are the factors that make parasomnia more likely or less likely?

I think there are a lot of factors that come together. These include prior history, other sleep disorder in the form of sleep apnea. There is a family history of parasomnia in his mother. There is the triggering factor of the alcohol and the cannabis use.

Hmm, if any behaviour has occurred, without any likelihood of it going undetected, you're in a communal place. This is not in a train carriage where you and the one female in the carriage are there and there's no one else. I mean, he's in a crowded small place and with other people very close at hand. That's not the situation which someone would normally set about committing a sexual assault.

The fact that he volunteers that he thinks that he did something, but he's confused, and I think he tries to piece together what happened, once it happens.

There's no previous history of any sexual deviations. Hmm, the sexual behaviour involved here includes, it's thought to be, anal penetration. That is something that is part of his sexual repertoire with his partner.

There is the added factor that I understand that the person who accuses him had drunk a huge amount of alcohol, as well. Certainly, the issue which was made something of previously, anal tone, the muscle tone in people who've consumed a lot of alcohol is relaxed. So there's the real possibility of even incontinence in those situations. So that, you know, there was a comment that maybe it would be difficult to achieve anal penetration, but I think, in someone who was very inebriated, that changes.

There's no prior history of sexual violence and no sexual convictions. The girlfriend describes these sort of sexual behaviours in their relationship. He clearly is bamboozled and confused immediately after the event and so doesn't know what's happened. There's clearly the evidence of the touch.

So if I put that all together with what I now see on the video, that he definitely has a sexsomnia, it seems to me, by far and away, the most likely story to tell.

191In cross-examination Dr. Shapiro agreed that the amount of alcohol consumed by Mr. Hartman was sufficient to trigger an alcoholic blackout. Dr. Shapiro also agreed with the following passages from an article that he had written, entitled The Parasomnias and Other Sleep-Related Movement Disorders:

"'Alcoholic blackout' is defined as memory loss without accompanying loss of consciousness for events that occurred during drinking."

"In the differential diagnosis of sleep-related violence, alcoholic blackouts are often difficult to distinguish from a parasomnia, as both present with complex coordinated behaviour associated with amnesia for the events of the episode."

192Dr. Shapiro also agreed with the following passages from the DSM-V (the Diagnostic and Statistical Manual of Mental Disorders) pertaining to alcohol-induced blackouts:

"Alcohol-induced blackouts may be associated with extremely complex behaviours in the absence of other suggestions of intoxication."

"They do not involve the loss of consciousness but rather reflect an isolated disruption of memory for events during a drinking episode."

193Dr. Shapiro was then asked if he agreed with the statement from the DSM-V that states, "[b]y history, these behaviours may be indistinguishable from those seen in NREM sleep arousal disorders." He advised that he did not completely agree with that as context has to be considered.

194Dr. Shapiro agreed that arousals precede wakefulness and agreed that if a person remembers something, and retained the information, then this would be part of their wakeful experience. He was specifically asked if Mr. Hartman would have to be awake to recall R.C.'s hand on him, and Dr. Shapiro stated that he presumed so. Dr. Shapiro then backed away from that position somewhat, stating that one probably has to be awake to have a memory, but he is not sure how awake Mr. Hartman would have been. Further in his cross-examination, Dr. Shapiro agreed with Ms. Breault that alcohol intoxication is one possible explanation for Mr. Hartman's lack of memory of the events prior to feeling R.C.'s hand on him.

195Dr. Shapiro stated that he, "eliminated the possibility that it was simply a blackout and that this was a rape as a consequence of alcohol disinhibition."

196Ms. Breault challenged Dr. Shapiro on this issue throughout the cross-examination. One response provided by Dr. Shapiro was the following:

To an individual, if there seems to have been some, in inverted commas, "mischievous" or "illegal" behaviour, they will deny that they did it. The person who's drunk alcohol has no problem working out that "I shouldn't have done, and I better say that I didn't do it, because, otherwise, I'm going to get into trouble."

Whereas, in parasomnias, I see occasionally that people realize that the behaviour that they've shown is very serious behaviour, but they say "I think it was me who did it," and I gave the example of Luedecke, and it was an example in this case. So that sense of awareness is very different when you deal with people with parasomnia.

197Dr. Shapiro agreed with Ms. Breault that the timing of when Mr. Hartman was in deep sleep was important. His evidence before this Court, as well as in his report, clearly demonstrated that Dr. Shapiro was under the impression that Mr. Hartman had laid down on the air mattress next to R.C. and M.T. at around 2:30 or 3:00 a.m., and that he remained there for the next three hours until this assault took place. It was very clear during Dr. Shapiro's evidence that he had not been aware that Mr. Hartman actually got up and walked around after he had awaken with the kink in his neck. The following exchange was very important:

Q. Would it have been...? Would you have paid greater attention to it if when he had the kink in the neck, he got up and walked around? Would that have been more important as...?

A. Then I would say he was awake, and it would be...it certainly would be relevant. And the likelihood of him going immediately back into deep sleep is less likely.

But it's my understanding that.... Well, I don't know. So I would need to have that information. You'd have to paint me the scenario. I'll tell you what I think.

198Dr. Shapiro's report of March 9, 2017 contains the following passage:

Mr. Hartman recalls that it was between 2:00 and 3:00 a.m. that he went to bed on the night in question (other reports put the time at between 3-3.30 am ) on an air mattress and he woke when he heard talking in an adjacent room ( at approximately 6am). When he emerged, he was accused of anally penetrating the woman. He notes that when he had got on to the bed, the arrangement was that the boyfriend was at the other end and the woman was between him and her boyfriend.

199Dr. Shapiro was questioned further by Ms. Breault on the issue of the time between Mr. Hartman going to sleep on the air mattress and the assault. Dr. Shapiro stated as follows:

If you think, as many do, that deep sleep is one of the triggers for parasomnia and if you think that arousals are a factor, then particularly in the situation of alcohol, where there is an increase, according to some, particularly, in the first half of the sleep, of deep sleep and arousals are more likely to start occurring as the alcohol level drops, it would be at the end of the first half of the night that would set the perfect storm for the likelihood of a parasomniac event happening.

Q. So, at the end of...so you're saying that....

A. So towards the three-hour mark, so although there would be more deep sleep at the beginning, there'll be few arousals. If you need the combination of the two — and many people would think that, yes, that is the, if you like, perfect storm for a parasomnia — then it's likely to be when either alcohol is dropping or if the situation is that it's a benzodiazepine that the person's taken, that the withdrawal of the benzodiazepine is more towards the middle or slightly later in the night, if it's a short-acting benzodiazepine, and that's when you get the parasomniac episode happening.

200Dr. Shapiro agreed with Ms. Breault that the timing of when Mr. Hartman woke up with the kink in his neck was important but that it did not change his mind in any material way as to this being sexsomnia. This issue was explored further in cross-examination and the following exchange took place:

Q. When he woke up with a kink in his neck, why would you ignore that piece of evidence?

A. It didn't seem salient to me.

Q. So because it didn't serve your purpose?

A. No.

Q. Why does it not seem salient?

A. If he'd said he dreamt about Batman in the middle of the night before, I might record that he dreamt about Batman, but I wouldn't not think it's very important in the general scheme of things. The fact that he had arousals during his sleep, that is relevant.

201There was extensive questioning of Dr. Shapiro as to how he viewed his role in providing an opinion to the court, and many questions as to the materials he reviewed and when.

202Dr. Shapiro was asked if he had considered the contradictory information contained within the materials he had reviewed and acknowledged that he was aware of the contradictions, but that his experience is that the memories of all involved were fuzzy, and they were trying to reconstruct the events. Dr. Shapiro testified that, in reviewing the materials, he looked for evidence of contradiction, and was particularly mindful that there had been two previous proceedings.

203In examination-in-chief Dr. Shapiro explained that he carefully considered all of the available information, and did not come to his conclusion based on one piece of information. In cross-examination he advised the Court that as a clinician he does not simply accept what people say, if there is a reason to question the veracity of the information. In cross-examination he also confirmed that he looked at all of the evidence that supported his opinion, and considered whether there are other things that should be considered and excluded.

204The report filed with the Court was dated March 9, 2017. Another copy of the same report, dated April 6, 2017 was also filed. The information contained within each is the same, except for the date. Dr. Shapiro testified that he believed that the report was completed on March 9, 2017.

205Dr. Shapiro explained to Ms. Bojanowska in examination-in-chief that he had approached the matter as follows:

On this occasion, I interviewed the accused before I read any of the materials. I did that very intentionally, because I knew that it was what I understood to be an appeal, what I understood was a retrial. So I didn't want my mind, if you like, prejudiced or contaminated by what I read. So I waited to start my reading until I had interviewed him. I actually made telephone calls to both his mother and his fiancé, got the information over the phone, and then I started reading.

206In cross-examination Dr. Shapiro confirmed this approach, stating:

So I did the clinical interview. I wanted to know and see the man, first off. Then there was time that he was going to be doing the sleep studies and he was still going to be available to me to interview him again.

Then I got into reading the documentation and getting a sense of the specifics of this story. And then I interviewed him again and tried to put it all together as a unitary whole. So that's how it happened.

207In re-examination, Dr. Shapiro was again asked about how he approached his task, and stated as follows:

My approach is to try and be systematic and to get the clinical story. I think I noted in my documentation for this case that I did that initially independently of Dr. Gojer's notes, and so on, because I knew that this was a repeat trial and I didn't want to go into it with a biased perspective.

I then did, at the time, read all the notes, at the time of making my report, that were available to me, and it took a lot of time. I then had the information from the sleep studies, and we looked at the sleep studies very carefully, partly because there had been another set of sleep studies before, and that's not usually the case, of course. You know, one of the things that I was able to do is look at two pairs of sleep studies, approximately, three years apart. In both of those, there was an unusual abundance of deep sleep and more so on the night of the alcohol. So all of these factors you pull together and try and take an overall perspective.

208Dr. Shapiro testified that he met with Mr. Hartman on three occasions. One of the latter meetings was very brief. Ms. Breault quite fairly put it to Dr. Shapiro on June 22, 2017 that Mr. Hartman had testified that he only met Dr. Shapiro twice. Dr. Shapiro was firm in his position that he had met with Mr. Hartman on three occasions. He confirmed that the first meeting was short, and the second meeting was where he obtained the information of sexsomnia. Then there was a third meeting once he had reviewed the materials.

209Dr. Shapiro opined that Mr. Hartman's utterance that he thinks he was just making out with M.T.'s girlfriend can be attributed to him filling in the blanks. Dr. Shapiro concluded that Mr. Hartman did not recall the events and that he was simply trying to fill in the gaps. He also concluded that Mr. Hartman had been fed information that he then incorporated into his understanding. There was no evidence, however, that Dr. Shapiro asked Mr. Hartman any questions to verify these conclusions, and to determine the basis for his memories.

210Ms. Breault put the handwritten notes made by Mr. Hartman on February 15, 2011 to Dr. Shapiro. The contents of those notes included the following passages:

"Unfortunately, this is where everything is a bit of a blur. I remember lying down and seeing a washroom in front of me. I must have blacked out again."

"When I came to, my pants were undone, my penis was out. R.C.'s pants were down as well, her hand on the back of my hip, and my penis was in her anus."

"When I realized I wasn't at home and this wasn't my girlfriend, I was worried. I believe she had the same feeling. She got up, went to the bathroom for a minute, and came back out."

"I was still really drunk, and I was trying to figure out what had just happened. I know it sounds bad, but I have no memory of how this happened."

"R.C. tried to wake M.T. up. He got up and they went to the other room. Everyone else was still asleep. I got up and walked to them and said 'I'm not sure what the heck just happened, but I think I just made out with your girlfriend.'"

"I didn't get a response. So I walked to the garage and had a cigarette. I sat there for 15 minutes, trying to figure out what had just happened. Faren came up and said 'I don't know what to say to you right now,' and I replied 'I don't even know what to say.'"

211Initially Dr. Shapiro could not recall if he had reviewed those notes but as the cross-examination continued he acknowledged that he had read these notes. Dr. Shapiro agreed that, having read those notes, he did not question Mr. Hartman about them. The following important exchange took place on October 27, 2017:

Q. So when you were writing this report, weren't you floored when you...when you read this and thought "oh, my God, this isn't accurate what he's telling me"?

A. The issue is what I'm writing about is what he remembers in the time that occurs between "I must have blacked out again" and "when I came to". So it's the paragraph that isn't there that is crucial in this difference of opinion about us...between us at the moment.

So he is saying "I remember this point. I then remember that point. At the time whatever actually happened had happened, I don't have a recall." To me, it sounds like he was probably asleep at that time, and we don't know if he was sleeping for two hours or 20 minutes.

But when he came to, he is hearing this accusation that he's done something wrong, and he realized that he's in a state of semi-undress. So he's trying to put it together and saying "I made out with your girlfriend."

Q. I'm sorry, but he doesn't say that he heard this. He says that he wakes up to his penis in her anus, not that he heard anybody say that to him. He blacked out, and he, all of a sudden, recognizes that his penis is in her anus.

A. In other words, if....

Q. Not that somebody told him.

A. No, so it happens. He doesn't say anything about.... And we've agreed that he's very detail orientated and very much into describing this accurately. He doesn't say anything about "I decided to penetrate her" or anything like that. He just finds he's in this bizarre situation that his pants are down and his penis is in her anus, lo and behold, as it were.

So what I understand by that is that there is this disconnect of consciousness between "I must have blacked out again" and "when I came to". There's this bizarre situation, and he know has to try and work out what happened between blacking out and coming to. There's a gap there.

That's the part that is what primarily matters. Because if he's in a black-out state, whether it...and we think it's sleeping — and that's what I think, and you might think it's just alcoholic-induced — then it makes an enormous difference, but it's in that time that whatever action took place then took place, in the sense that he penetrated her.

So the question is, for me, was it that he was now asleep and he has no recollection? And that's what I think it is. Then, to me, he has no intent and, for me, that's the whole issue about what this case is about. Hmm, you can put whatever spin you want to on to it.

Q. But everything that you put....

A. But in three minutes.

Q. That you've hung your hat on was all about the fact somebody has told him that he's anally raped....

A. Yeah, but the....

Q. That's what you've always said that was significant, correct?

A. That is what's significant. The point is that he has no explanation and no awareness of how that situation came about. That's the piece that's missing. So nowhere he says, you know, "I found her attractive and, therefore, I removed her clothing and, therefore, I started to fondle her and, therefore...." That doesn't...that's not part of the description, and he's a person who's giving you as much detail as you might wish to have.

So, to me, that's where the gap is. There is no information to tell you how you go from that paragraph to that paragraph, and that's where the whole action is. It's the whole crux of what is happening. That's what sexsomnia is about. It's about people not being aware of the process happening at that time.

Q. But you've been testifying all day that it was the...it was screaming.

A. So he....

Q. That was important.

A. He gives me that. He subsequently has been through two court cases and his recollection is the same, in the sense that he comes to.

No, he doesn't say here he comes to because of someone screaming, and so on. So that, you're correct, is different. But it's consistent in the sense that he is not aware of how that actually occurs or what takes it from the point that he blacks out to the point that he wakes up.

212In follow-up questioning Dr. Shapiro advised that he had likely skimmed over the handwritten notes, and also stated the following:

Hmm, so there are parts of the reading that I did which I'm clear about, like the touching, the soft area in the pants, and so on. When there is voluminous information and there's a handwritten note, I will read it quickly and perhaps not pay enough attention to it, but I wasn't struck by the degree of variance that you indicate that there is.

I, you know, thinking about it now, do not think that it is of any significant consequence. So it's not, in my mind — and not in your mind, of course — it doesn't...the decisions or the thoughts that I have about "is this a parasomnia," is this an alcoholic behaviour," it doesn't change.

213In re-examination Dr. Shapiro stated to Ms. Bojanowska that he had not reviewed any materials that contradicted Mr. Hartman's assertion to him that he had no memory of the incident.

214I understand that Dr. Mark Pressman prepared a report and testified pertaining to Mr. Hartman's appeal. Dr. Pressman did not testify in the trial before me. In examination-in-chief Ms. Bojanowska asked Dr. Shapiro if he had reviewed Dr. Pressman's report and he agreed that he had. During cross-examination, Dr. Shapiro repeatedly commented on Dr. Pressman's role in influencing others, and criticizing same.

215It should be noted that Ms. Breault did not ask Dr. Shapiro any questions to invite the comments about Dr. Pressman. While I will not address each of the comments made by Dr. Shapiro about Dr. Pressman, I will point out the following three. On April 19, 2017 the following exchange took place in cross-examination:

Q. The alcohol issue is, in your expertise, you believe that it's a trigger to parasomnia. Is that correct?

A. There's no question that it is a trigger to parasomnia.

Q. The difficulty is the DSM-5 says no.

A. Do you know who wrote the DSM-5 section on that?

Q. Well, is it not the bible that people follow?

A. If you go to the DSM-4, which was the previous bible, so now there's a new religion. So it was....

Q. Also....

A. So Dr. Pressman was very instrumental. He was chair of that section. He has a particular view, which is a minority view, but he has a view, and he's a very forceful individual. So he has promulgated that view, and it now appears in DSM-5. My own view and the view of a lot of Canadian experts is that he has hoodwinked the DSM committee.

216Ms. Breault started to review a document with Dr. Shapiro on April 20, 2017, and he immediately interjected to comment on Dr. Pressman:

Q. So the author indicates how the parasomnia section came to be in place:

"The parasomnia section of the ICSD-3 was the product of almost 3 years of work, with the participation of dozens of sleep specialists worldwide. The ICSD-3 committee consisted of 10 members and was chaired by Dr. Michael Sateia of Dartmouth. He in turn appointed chairs for each diagnostic section. The parasomnia core group was chaired by Michel Cramer Bornemann and included members; Carlos Schenck, Mark Pressman, and Gerald Rosen. The process was quite comprehensive as follows."

A. Can I stop you there for a second? So I just want to point out that in terms of a pattern, Bornemann, Schenck, and Pressman have co-authored papers. I don't know about Gerald Rosen.

So if those...if they're four people on that committee, you know, what is striking is that there's a number of people who have an opinion that they know is at variance with the opinion that they held, and it's an important issue. None of those people, like Ebrahim from the UK or Moscovitch from Alberta, or myself or Gojer, were on those committees. That's fine. I mean, I don't need to be on a committee. But I'm just saying that it is a rigged jury, if you like, before it starts.

217On October 27, 2017 there was discussion pertaining to the DSM-V as follows:

Q. Okay. So back to sleepwalking, so would you have these findings, you indicated the "two abrupt awakenings from SWS without associated abnormal motor activity", to people who do not sleepwalk?

A. Could you find it in people who don't sleepwalk?

Q. Yes.

A. What I've said for the last 10 minutes is "yes", yes, that it does happen.

Q. Thank you.

A. It does happen. It happens more commonly in people who don't, by a ratio of four to one, approximately.

Q. So the DSM-5 says that "the overlap in findings with individuals who do not sleepwalk is great enough to preclude use of this as an indicator."

A. That is a Pressman opinion.

Q. Pardon?

A. That is Pressman's opinion.

Q. No, it's the DSM-5.

A. No, no, he was part of the group, and he was the steering voice on that, and he's imposed his personal beliefs on to that, with two influential colleagues who've both come back from that position somewhat, that it's now enshrined. And until DSM-6 comes along, we will have that view as one view that is held. That doesn't mean that it's gospel.

218On March 22, 2018 Ms. Breault presented Dr. Shapiro with the DSM-V dealing with sleep-wake disorders and Dr. Shapiro acknowledged that he was incorrect about Dr. Pressman's role in the DSM-V. I note that not only was Dr. Pressman not listed as the chair of that group, he was not even a member of the group.

Daryl Mayers

219Mr. Mayers is a forensic toxicologist who was qualified on consent to provide opinion evidence in the area of toxicology, and to provide evidence on the absorption, distribution, elimination and effects of alcohol and drugs in the human body.

220Mr. Mayers had prepared a report and adopted same in these proceedings. With the scenario initially provided to him, his written report provided a projected blood alcohol concentration for Mr. Hartman at 3:30 a.m. of 260 to 340 milligrams of alcohol in 100 millitres of blood, and at 6:00 a.m. the projection would be 210 to 320 milligrams of alcohol in 100 millitres of blood.

221Mr. Mayers was very clear in providing his evidence to the Court that he could only provide general information as he had never assessed Mr. Hartman personally.

222Mr. Mayers was asked to comment on whether alcohol affects memory, and stated as follows:

My answer there is a qualified yes, and it's a qualified yes because memory is very complex, and drugs, alcohol included, can impact on some types of memory. It is possible that alcohol can, in some individuals in some circumstances, cause what is known as anterograde amnesia, and that is often characterized as a "blackout." I am always careful to distinguish the terms. I don't want a blackout to be interpreted as perhaps the general public would, if someone blacks out people might think that is unconsciousness. In the context of the terminology we're discussing, a blackout I'm defining as anterograde amnesia, and that is an amnesia that is associated with or can be associated with drug use, and it's one where an individual cannot remember either an entire period of time or parts of a period of time hours after the events took place, for example, the next day.

So what we have is a situation where a drug, alcohol is a drug, it can interrupt the ability of an individual to take what we have as a short-term memory and move it into the long-term memory, if we want to characterize it in that way. So there's an interruption of that ability.

With alcohol, initially in the '60s this was attributed to simply blood alcohol concentrations. It used to be thought that was the main contributory factor, but more recently at the beginning of this century there's some literature that also indicated that not just alcohol concentration but also the rapidity at which the concentration is achieved. So if you rapidly rise to a blood alcohol concentration or higher blood alcohol concentrations, it's more likely that you will have some sort of an amnesic event, and more likely than not it will happen.

The difficulty with this type of effect of alcohol is it's very unpredictable nature. Sometimes people will have alcoholic or alcohol induced amnesias and sometimes they won't. They can happen at different concentrations. We used to always attribute them to blood alcohol concentrations that only could be achieved by alcoholic individuals, but more recently we've realized that there seems to be a continuum, and even at lower blood alcohol concentrations there can be some memory deficits on some occasions in some individuals.

223Mr. Mayers agreed with the following statements, excerpted from an article written by Dr. Shapiro:

"Alcohol blackout is defined as memory loss without accompanying loss of consciousness for events that occurred during it."

"Blackouts are divided into two categories: en bloc blackouts and fragmentary blackouts."

"En bloc blackouts are classified by the inability to later recall any memories from an intoxicated period, even when prompted."

"Fragmentary blackouts are characterized by the ability to recall certain events from an intoxicated period yet be unaware that other memories are missing until reminded of the existence of these gaps in memory."

"Research indicates that fragmentary blackouts are far more common than en bloc blackouts."

224Ms. Bojanowska asked Mr. Mayers to assess the projected blood alcohol concentration of Mr. Hartman at 3:30 and 6:00 a.m., based on the consumption of the following alcohol between 8:30 p.m. and 2:00 a.m.: 5 Dab beer, eight .5 ounce shooters where the alcohol volume was 35 % (rather than 40%) and six bottles of beer. Mr. Mayers' projection was that at 3:30 a.m. the projection would be 185 to 245 milligrams of alcohol in 100 millitres of blood, and at 6:00 a.m. the projection would be 135 to 220 milligrams of alcohol in 100 millitres of blood.

225The consumption of food (which we were told was one slice of pizza) would not impact upon these ranges. Food slows absorption but does not stop it.

226When asked to comment on Mr. Hartman's ability to feel pain, when he perceived a kink in his neck, Mr. Mayers stated that, "either the projected blood alcohol concentration is higher than the actual blood alcohol or the individual actually has that blood alcohol concentration but is extremely tolerant to the effects of alcohol."

227The evidence in this case was that Mr. Hartman did not know how much beer he consumed playing beer pong. As such, Mr. Mayers stated that he would not be in a position to give a calculation on that, but advised that the calculation would go up somewhat.

ISSUE

228The issue before me has been clearly defined by the Court of Appeal. My role is to determine if Mr. Hartman was not criminally responsible due to mental disorder at the time of the sexual assault on R.C., or if he is guilty as charged.

229In determining this issue I must carefully assess the evidence, and make findings of credibility and reliability.

230If I accept Mr. Hartman's evidence that he was asleep, and I accept the opinion of Dr. Shapiro, on a balance of probabilities, that Mr. Hartman was suffering from a parasomnia at the time he anally penetrated R.C., then I must find Mr. Hartman not criminally responsible on the basis of a mental disorder.

231If I have doubts pertaining to Mr. Hartman's evidence, I instruct myself that I must still consider the evidence of Dr. Shapiro to determine if it has been proven on a balance of probabilities that Mr. Hartman's actions were involuntary as a result of parasomnia.

232If I find that it is has not been proven on a balance of probabilities that Mr. Hartman's actions were involuntary as a result of parasomnia, I must find him guilty of sexual assault.

POSITION OF THE PARTIES

Defence

233I am asked by Ms. Bojanowska to consider the consumption of alcohol by the Crown witnesses, and also their opportunities to collude, as well as the evidence that they did, in fact, speak about the events of February 11 and 12, 2011 prior to testifying.

234Ms. Bojanowska submits that the evidence supports a finding that Mr. Hartman was asleep at the time he anally penetrated R.C. I am asked to rely upon the opinion of Dr. Shapiro, and find that he carefully considered all relevant information in concluding that Mr. Hartman's actions were involuntary. Ms. Bojanowska specifically directed my attention to the fifteen specific factors that Dr. Shapiro considered in forming his opinion. Ms. Bojanowska outlined many of these same factors in her submissions.

235I am asked to consider the sleep testing that was done in 2013 and 2017, and specifically the testing of 2017 wherein Mr. Hartman exhibited a brief incident of sexsomnia. I am asked to consider Dr. Shapiro's evidence that Mr. Hartman had an arousal, one that he was not aware of, and that he immediately fell back asleep again. This is to be distinguished from a situation where one arouses to a state of full wakefulness.

236I am asked to find that R.C.'s evidence also supports that Mr. Hartman acted involuntarily, in his sleep, and specifically asked to consider R.C.'s evidence that after R.C. pushed Mr. Hartman, his body went limp as he withdrew his penis from her anus, and that he was making snoring sounds (even though R.C. described them as fake). Further, there was no evidence that Mr. Hartman made any noises to suggest that he was sexually gratified by his actions, or that he continued to force the penetration after R.C. pushed him.

237Ms. Bojanowska submits that the evidence supports a finding that Mr. Hartman suffers from parasomnia, and that he was asleep at the time of the of the sexual assault. Thus, Mr. Hartman should be declared NCR-MD.

Crown

238I am asked by Ms. Breault to find that Dr. Shapiro was neither impartial nor objective, and to find that he was biased. I am asked to find that Dr. Shapiro was an advocate for Mr. Hartman, and lacking in neutrality.

239Ms. Breault referred to numerous issues that I should consider in assessing Dr. Shapiro's evidence, including:

i. An extreme personal dislike for Dr. Pressman which led to a lack of complete objectivity on the subject-matter.

ii. Occasional carelessness with the facts.

iii. Failure to consider that alcohol-related violence is far more prevalent than violence due to parasomnia. The possibility of an alcohol blackout was conspicuously absent from his report.

iv. If the facts did not support his theory, he ignored them or substituted his own facts.

v. He only highlighted facts that supported his theory in the report and did not highlight facts that went against his theory.

vi. It did not matter to him whether Mr. Hartman was consistent or not in the details of the events in question. Dr. Shapiro assesses malingering on how a person tells their story and not what they actually say about it.

240Ms. Breault submitted that I should be concerned about a number of the factors that Dr. Shapiro relied upon to support his opinion in this matter.

241I am asked to find that the defence has not satisfied its burden of proof, and I am asked to find Mr. Hartman guilty of sexual assault.

ASSESSMENT OF EVIDENCE

242The importance of sufficient reasons has been set out in many cases, including, R. v. Sheppard, 2002 SCC 26 (CanLII), [2002] 1 S.C.R. 869, R. v. Dinardo, 2008 SCC 24 (CanLII), [2008] S.C.J. No. 24, and R. v. R.E.M., 2008 SCC 51 (CanLII), [2008] S.C.J. No. 52. I recognize that I am not required to set out in detail each and every fact considered, or every legal principle that guided me in making my decision. However, setting out a number of these principles will assist the parties in understanding how I approached my responsibilities.

243I may accept some, all, or none of any witness's evidence. It is not an "all-or-nothing" situation. I may also apply less or more weight to various aspects of the evidence. (R. v. M.M., [2018] O.J. No. 4284 (S.C.J.)). This is especially important when one considers inconsistencies. There will be some inconsistencies that are significant, and others that are less so.

244Although my task is limited to determining whether or not Mr. Hartman is guilty of sexual assault or whether he is not criminally responsible, credibility and reliability are still important considerations in this case.

245Assessing credibility is a difficult task, and a significant responsibility. (R. v. Gagnon, 2006 SCC 17 (CanLII), [2006] S.C.J. No. 17; R. v. B.W., [2009] O.J. No. 4094 (S.C.J.)). In R. v. B.W., supra, the Court describes this as follows, at paragraph 31, "[t]he assessment of credibility is often the primary and the most daunting task that the trier of fact faces in a criminal trial, involving determinations of the truthfulness of witnesses and an assessment of their reliability."

246Credibility involves an assessment of whether the witness is being truthful. Reliability, on the other hand, refers to whether the witness is accurate in how he or she remembers and recounts the evidence.

247In assessing the evidence of the witnesses, it is important that I do not approach it as a choice or contest between the evidence of the Crown witnesses and the evidence of Mr. Hartman, or in fact between any of the witnesses at all. (R. v. Ing, [2013] O.J. No. 98 (O.C.J.)).

248While I must not approach the evidence in an either/or manner (and of course must be mindful of the fact that I am not required to accept all of the evidence of any given witness), I am entitled to compare the evidence of the witnesses. At paragraph 88 of R. v. Ing, supra, the Court stated that, "[e]xperience tells us that one of the best tools to assist in determining credibility and reliability is the careful and repeated testing of the evidence to see how it "stacks up", so to speak. In other words, how does a witness' account stand in harmony with the other evidence, while applying the appropriate standard of proof?"

249The Court must also not judge the evidence of Mr. Hartman more harshly than the evidence of the other witnesses. His evidence is to be considered as part of the evidence as whole. (R. v. Ing, [2013] O.J. No. 98 (O.C.J.)). As stated in R. v. Gostick, 1999 CanLII 3125 (ON CA), [1999] O.J. No. 2357 (C.A.), at paragraph 15, "the proper approach to the burden of proof is to consider all of the evidence together and not to assess individual items of evidence in isolation." Thus, when I consider Mr. Hartman's evidence, I will do so as I consider it alongside the evidence of the other witnesses.

250Where witnesses gave statements, or as in the case before me, testified previously, it is important to consider the following passage from R. v. M.G., 1994 CanLII 8733 (ON CA), [1994] O.J. No. 2086 (C.A.), at paragraph 23:

Probably the most valuable means of assessing the credibility of a crucial witness is to examine the consistency between what the witness said in the witness box and what the witness has said on other occasions, whether on oath or not. Inconsistencies on minor matters or matters of detail are normal and are to be expected. They do not generally affect the credibility of the witness. This is particularly true in cases of young persons. But where the inconsistency involves a material matter about which an honest witness is unlikely to be mistaken the inconsistency can demonstrate a carelessness with the truth. The trier of fact is then placed in the dilemma of trying to decide whether or not it can rely upon the testimony of a witness who has demonstrated carelessness with the truth.

251I have kept each of these principles at the forefront as I considered the evidence in this case.

SECTION 16 OF THE CRIMINAL CODE AND PARASOMNIA

252Section 16 of the Criminal Code states as follows:

16 (1) No person is criminally responsible for an act committed or an omission made while suffering from a mental disorder that rendered the person incapable of appreciating the nature and quality of the act or omission or of knowing that it was wrong.

(2) Every person is presumed not to suffer from a mental disorder so as to be exempt from criminal responsibility by virtue of subsection (1), until the contrary is proved on the balance of probabilities.

(3) The burden of proof that an accused was suffering from a mental disorder so as to be exempt from criminal responsibility is on the party that raises the issue.

253People are presumed to act voluntarily. In R. v. Stone, 1999 CanLII 688 (SCC), [1999] S.C.J. No. 27 (S.C.C.), the Supreme Court of Canada set out the expectations upon an accused who is claiming to have acted involuntarily as a result of an automatism. The Court held that accused must claim that his actions were involuntary, and further held that the accused must present psychiatric evidence to confirm the accused's claim. Mr. Hartman has made this claim, and he has called psychiatric evidence.

254In R. v. Desrosiers, [2017] O.J. No. 2295 (O.C.J), Gage, J. set out a summary of the principles in R. v. Stone, supra. This summary was adopted recently by West, J. in R. v. B.M., [2018] O.J. No. 4461 (O.C.J.). I concur that this summary accurately sets out the relevant principles, and I refer to paragraph 51 of the Desrosiers decision, which states:

The leading case dealing with the defence of automatism is the decision of the Supreme Court of Canada in R v Stone. The principles to be derived from that decision can be summarized as follows:

• Automatism is defined as "a state of impaired consciousness, rather than a state of unconsciousness, in which an individual, though capable of action, has no voluntary control over that action"

• In cases involving claims of automatism the burden is on the defence to prove involuntariness on a balance of probabilities

• Initially the defence carries the burden of establishing a proper foundation for the defence of automatism by asserting the claim of involuntariness and providing the court with psychiatric or psychological evidence that the assertion is plausible assuming that a factual scenario advanced by the accused that identifies some evidence from which a jury could reasonably infer that the accused acted in a state of automatism

• With respect to the weight to be attached to expert opinion on this issue the court notes: "If the expert testimony establishes a documented history of automatistic-like dissociative states, it must be given more weight than if the expert is simply confirming that the claim of automatism is plausible." Whether there is a documented history of prior episodes or not the trier of fact should be mindful that the value of the opinion is very much dependant on the accuracy and reliability of the account of the events provided by witnesses including the accused.

• Evidence of a documented history of automatistic-like dissociative states will assist the defence in satisfying the initial burden. The more similar the pattern of dissociation is with the current claim the more persuasive the evidence will be on the question of involuntariness.

• Corroborating evidence of a bystander which reveals that the accused appeared uncharacteristically glassy eyed, unresponsive or distant immediately before, during or after the alleged involuntary act will be relevant to the assessment.

• A motiveless act will generally lend plausibility to the accused's claim of involuntariness and conversely a motive to commit the crime will reduce plausibility. The court should examine whether or not the crime in question is explicable without reference to the alleged automatism.

• If the defence satisfies the initial burden of demonstrating on a balance of probabilities that the defence is plausible the issue may be left to the jury. It is then up to the jury to determine if, as trier of fact, it is satisfied that based on the evidence that it accepts the defence is established on a balance of probabilities. In the context of a judge alone trial the presiding judge performs both functions;

• If the trier of fact is satisfied that automatism is proven then the further step of determining if the automatism established is mental disorder automatism as opposed to non-mental disorder automatism.

255If the Court finds that a foundation has been laid to establish a defence of automatism, R. v. Stone, supra, directs that I must then address whether the automatism is mental disorder automatism or non-mental disorder automatism. If the automatism is non-mental disorder, then I would be obliged to acquit Mr. Hartman. If, however, I was to find that the automatism was triggered by a disease of the mind, then I would be obliged to consider whether Mr. Hartman has proven, on a balance of probabilities, that he was suffering from a mental disorder that rendered him incapable of appreciating the nature and quality of his act or of knowing that it was wrong.

256In R. v. Stone, supra, the automatism was brought about by the words uttered by the deceased prior to the accused killing her. That case did not deal with parasomnia.

257In R. v. Luedecke, 2008 ONCA 716 (CanLII), [2008], O.J. No. 4049 (C.A.), the Court had the opportunity to address the issue of parasomnia. Doherty, J. described the trial judge's responsibility in that case as follows, at paragraphs 2-3:

The trial judge had to decide two questions:

• Were the respondent's actions involuntary?

• If the respondent's actions were involuntary, were they the product of a mental disorder, thereby rendering him NCR-MD?

The first question goes to the respondent's culpability. If the respondent's actions were involuntary, he could not be convicted. The second question addresses the proper disposition to be made if the respondent's actions were involuntary. If his involuntary actions were the product of a mental disorder, a finding of NCR-MD was the appropriate verdict. However, if the actions, while involuntary, were not the product of a mental disorder, an acquittal simpliciter was the appropriate result. Persons found NCR-MD are subject to the provisions of Part XX.I of the Criminal Code, R.S.O. 1985, c. C-46. Orders made pursuant to those provisions can impose significant long-term restrictions on an individual's liberty. Persons who are acquitted simpliciter are not subject to any further proceedings or restrictions.

258Mr. Luedecke was acquitted. The trial court relied upon the expert evidence and found that the accused's actions were involuntary. The trial judge relied upon the evidence of the expert, Dr. Shapiro, finding that the parasomnia was not a mental disorder. The Court of Appeal held, at paragraph 120, that, "[o]n a proper application of the principles taken from Stone, to the facts as found by the trial judge, a NCR-MD verdict is the only verdict available in law." The matter was sent back for a new trial and the accused was ultimately found to be not criminally responsible as a result of mental disorder.

259In this case, I have been directed to consider whether Mr. Hartman should be found guilty of sexual assault, or if he has met the burden of establishing NCR-MD.

260I have reviewed the caselaw provided by counsel, specifically addressing the issue of parasomnia, including; R. v. Pond, [2007] O.J. No. 4907 (S.C.J.); R. v. Pike, [2013] O.J. No. 5046 (O.C.J.); R. v. Romas, 2002 BCPC 694 (CanLII), [2002] B.C.J. No. 3256 (B.C. Prov. Crt.); R. v. Campbell, 2000 CanLII 22824 (ON SC), [2000] O.J. No. 2261 (S.C.J.); R. v. Balenko, [2000] Q.J. No. 717 (Que. Crt. Crim. Div.) and R. v. Teepell, [2009] O.J. No. 3988 (O.C.J.).

261I also reviewed the additional cases of R. v. B.M., supra; R. v. Desrosiers, supra; R. v. D.M., 2013 ONCJ 589 (CanLII), [2013] O.J. No. 5232 (O.C.J.); R. v. Parsons, [2006] N.J. No. 227 (Nfl. And Lab. Prov. Crt.); R. v. Spears, [2009] O.J. No. 5648 (S.C.J.); R. v. Fracassi, [2016] O.J. No. 6005 (S.C.J.); R. v. Masewich, [2015] O.J. No. 1893 (S.C.J.).

262I accept the submissions of Ms. Bojanowska that findings of NCR-MD have been made in a number of those cases. I also accept the submission of Ms. Breault that the facts in many of those cases are distinguishable from the facts before me. I remind myself that the decision I make in this case must be based on the specific facts before me. I remind myself that the factors set out in R. v. Stone, supra, are not meant to be an exhaustive list, and that there will be many unique factors to consider in every case. While sexsomnia may be a novel science, it has been accepted in many cases. In many of the cases noted above, Courts have relied upon such evidence to find that accused persons are not criminally responsible for their actions.

EXPERT EVIDENCE - GENERALLY

263It is important in this case to set out the role of the expert witness.

264In White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] S.C.J. No. 23 (S.C.C) the Court held, at paragraph 10, that, "expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence." Further, the Court stated, at paragraph 45, that, "[f]ollowing what I take to be the dominant view in the Canadian cases, I would hold that an expert's lack of independence and impartiality goes to the admissibility of the evidence in addition to being considered in relation to the weight to be given to the evidence if admitted." The Court also held that an expert witness is to be unbiased and objective, and the expert is not to be an advocate for any party.

265In Vancouver Community College v. Phillips, Barratt, 1987 CanLII 2532 (BC SC), [1987] B.C.J. 3149 (B.C. S.C.), the Court stated, at paragraphs 27-29:

27 So long as the expert remains in the role of a confidential advisor, there are sound reasons for maintaining privilege over documents in his possession. Once he becomes a witness, however, his role is substantially changed. His opinions and their foundation are no longer private advice for the party who retained him. He offers his professional opinion for the assistance of the court in its search for the truth. The witness is no longer in the camp of a partisan. He testifies in an objective way to assist the court in understanding scientific, technical or complex matters within the scope of his professional expertise. He is presented to the court as truthful, reliable, knowledgeable and qualified. It is as though the party calling him says: "Here is Mr. X, an expert in an area where the court needs assistance. You can rely on his opinion. It is sound. He is prepared to stand by it. My friend can cross-examine him as he will. He won't get anywhere. The witness has nothing to hide."

28 It seems to me that in holding out the witness's opinion as trustworthy, the party calling him impliedly waives any privilege that previously protected the expert's papers from production. He presents his evidence to the court and represents, at least at the outset, that the evidence will withstand even the most rigorous cross-examination. That constitutes an implied waiver over papers in a witness's possession which are relevant to the preparation or formulation of the opinions offered, as well as to his consistency, reliability, qualifications and other matters touching on his credibility.

29 It is fair that expert witnesses should be thoroughly cross-examined on all matters touching the weight of the evidence they offer. In our system, that is the accepted method of getting at the truth….

266Both Ms. Bojanowska and Ms. Breault take very different positions as to whether Dr. Shapiro complied with his responsibilities in providing expert evidence before this Court.

ANALYSIS AND FACTUAL FINDINGS

267I will first address the evidence of the witnesses pertaining to Mr. Hartman's history of parasomnia.

268I accept the evidence of Mr. Hartman, confirmed by his mother, that Mr. Hartman did sleepwalk as young child (between the ages of 5 and 7) and that he rocked himself to sleep while still in grade school. I place less weight on Mr. Hartman's evidence that he suffered from nightmares so extreme that he had to go sleep with his parents. I would have expected Mrs. Hartman to testify as to same if this was the case.

269I have carefully considered the evidence of Ms. Childs as to the masturbation incident. I cannot reject that this took place, and that if it did, that it was sometime between when the relationship started in 2008 and the date of the party in 2011. However, I find it suspect. Specifically, I find it incredible that Mr. Hartman would have been told of this event and put it to the back of his mind. Mr. Hartman's evidence was that he had put it out of his mind and he did not even consider it when his sister raised the issue of sexsomnia three days after he had been arrested. It was not until he met with Dr. Gojer, the psychiatrist retained by him for the appeal, that he remembered that Ms. Childs had told him of this. I have great difficulty accepting that he would not have remembered this. I also find it suspect that Ms. Childs would not have reminded him immediately after he was charged, or at the very least during the discussion with Mr. Hartman's sister and Mom, that Mr. Hartman had previously engaged in sexual behaviours in his sleep. I note also that Ms. Childs testified that it was not until after Mr. Hartman's sister raised the issue that she told Mr. Hartman of the times he would sexually touch her in her sleep.

270Further, the evidence of Ms. Childs was very clear that the masturbation was on one occasion only. In addition, the facts as to Mr. Hartman's behaviour, especially as I consider the factors set out in R. v. Stone, supra, are much different than the facts before me.

271I have watched the video clip of Mr. Hartman on March 7, 2017 and agree that it appears that Mr. Hartman has touched his genital area for approximately four seconds. He then discontinues and goes back to sleep. Contrary to what Dr. Shapiro testified to in this Court, that brief parasomnia, and quite likely a sexsomnia, was nothing like the event that Ms. Childs described to the Court.

272I must also address Ms. Childs's evidence as to the times that Mr. Hartman would rub her hips in his sleep. Ms. Childs's evidence in examination-in-chief was as follows, "[t]here have been a few incidents where he has awoken me in the middle of the night, trying to put his hands down my pants, by putting his hand under my waistband and resting his hands on my hips and kind of rubbing my hips." She then defined "a few" for Ms. Bojanowska as being a couple times per month. When Ms. Breault took her through this evidence in cross-examination, Ms. Childs reassessed her position and stated that it was likely only once every two months.

273Ms. Childs also testified to one occasion in 2017 wherein Mr. Hartman had been grinding his hips against her in his sleep, but she did not believe that he had an erection.

274I now assess this evidence of Ms. Childs, against what is contained within Dr. Shapiro's report. Dr. Shapiro's report sets out the following information pertaining to previous acts of sexsomnia:

Mr. Hartman states that his current partner, Heather, states that she has woken up to see him playing with himself and he is aware that sometimes in his sleep, if he rolls over and "cuddles with her," he would put his hands down her pants.

In an independent telephone call (Mr. Hartman was not in the room), Heather confirmed that behavior and also commented that it occurs up to two to three times a week and also there are times when she is sure that he is asleep and he is effectively spooning with her and she feels his hips grinding at her. She is not sure that he has an erection at the time and suspects that he does not. It is also common for him to touch her around her breasts and lips when he is asleep. He has never been forceful in these situations and it has not lead to intercourse. She comments that she will also cuddle him in a reciprocal way and is aware of doing so.

275There was no evidence before this Court of Mr. Hartman touching Ms. Childs's breasts or lips. Most specifically however, Dr. Shapiro reports that Ms. Childs advised him that Mr. Hartman engages in acts of sexsomnia two to three times per week. This would be 100 to 150 times per year. This is significantly more than the "few times" that Ms. Childs first referred to, and also far more than the two times per month or one time every two months that she testified to in Court. Did Ms. Childs mislead Dr. Shapiro? Was Dr. Shapiro careless as to how he recorded that information? I do not know. Regardless of the reason for this significant discrepancy, I find it concerning.

276I accept Mrs. Hartman's evidence that Mr. Hartman used to sleepwalk and rock himself to sleep when he was in grade school. I accept that these are parasomnia. However, I find that the only reliable evidence of sexsomnia that has been demonstrated is the possible touching of Mr. Hartman's genitals during the sleep test on March 7, 2017. The remainder of the evidence, for the reasons above, I find to be suspect. It is possible that Mr. Hartman has engaged in sexual acts in his sleep when with Ms. Childs, but it would be unsafe for me to find that the evidence of this is credible and reliable for the reasons given above.

277Having determined that there is a childhood history of parasomnia, one verifiable incident (albeit six years after the incident in 2011), of sexsomnia, and possible (albeit suspect) other incidents of sexsomnia, I must turn my attention to the evidence of Dr. Shapiro.

278I find that it would be unsafe for me to rely upon the evidence of Dr. Shapiro in this case. I find that Dr. Shapiro's evidence demonstrated bias and a failure, and an unwillingness, to consider all relevant information.

279There were aspects of Dr. Shapiro's evidence that I found concerning, including his failure to adequately address the issue of alcohol in his report and the potential for alcoholic blackouts to have played a role in Mr. Hartman's memory loss, and generalizations made about how rape victims and sexual offenders would behave. These issues caused me concern, but not to the extent that many other aspects of his evidence did.

280I agree with Ms. Bojanowska that Ms. Breault's cross-examination was lengthy, and that on a number of occasions the questions put to Dr. Shapiro unfairly summarized or over-generalized his prior evidence. However, I also find that Dr. Shapiro's answers to the questions asked were often non-responsive to the issue at hand. On occasion, Dr. Shapiro actually tried to re-direct Ms. Breault to areas where he believed she should be focusing her questions, rather than simply answering the question asked of him. I find that, at times, Dr. Shapiro was confusing his role as a witness, with that of an advocate.

281Ms. Bojanowska asks that I find Dr. Shapiro's expressed opinions about Dr. Pressman to be irrelevant. I disagree. It is certainly to be expected that expert witnesses will take contrary positions to other experts, and it is also expected that expert witnesses will be asked to comment on the findings of other experts. This is quite usual, and acceptable, as the whole point is to assist the Court in understanding issues that are outside of the realm of knowledge of the Court (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] S.C.J. No. 36 (S.C.C.)). However, in this case I find that Dr. Shapiro's comments directed towards Dr. Pressman were unsolicited, gratuitous and non-responsive to the questions asked of him by Ms. Breault. Most importantly, his criticisms of Dr. Pressman's role in the DSM-V were completely unfounded and factually incorrect. I find that Dr. Shapiro was careless as to many of his comments about Dr. Pressman before this Court, and that his comments demonstrated a lack of professionalism.

282I have carefully reviewed Dr. Shapiro's report dated March 9, 2017, and can indicate that I have numerous concerns as it pertains to this report. I will enumerate a number of them at this time.

283The report contains information that is inaccurate or inconsistent with the evidence of Mr. Hartman and Ms. Childs. Some of this information is rather insignificant. By way of example, the report refers to Mr. Hartman having employment delivering pizza and "more recently learning to drive a truck". Mr. Hartman testified that he has not delivered pizza since the incident and that he has been employed for some time driving trucks. I question where Dr. Shapiro obtained this information.

284Other information is much more significant, including the following:

i. The report states that Mr. Hartman drinks 20-21 alcoholic beverages once or twice per month. Mr. Hartman testified that this is not the case.

ii. Ms. Childs' evidence as to the frequency of the sexsomnia like behaviours was in significant contrast to what is in the report.

iii. There is no mention in the report of Mr. Hartman falling asleep in a chair - any chair – and then waking with a kink in his neck and going to move to a the air mattress.

285It may very well be that Dr. Shapiro accurately reported the information that he was told by Mr. Hartman and Ms. Childs on these issues. If that is the case, then Mr. Hartman and Ms. Childs's credibility are significantly diminished as a result. It may be that the information was inaccurately recorded. I simply do not know. Regardless, I find that the information on these issues is unreliable.

286I am also troubled by the date of the report. On the second motion in this matter, Ms. Bojanowska had provided the Crown with a letter she had sent to Dr. Shapiro on March 1, 2017. This letter ws filed as part of an exhibit. In that letter Ms. Bojanowska states that she is providing materials for Dr. Shapiro's review, in anticipation of his meeting with Mr. Hartman. We know that the sleep tests were conducted between March 7 and 9, 2017. Mr. Hartman was very clear that he had only two meetings with Dr. Shapiro, both of which were when he went to Toronto by train in March, 2017. The first meeting was simply to discuss the sleep tests and the second meeting was lengthier and they discussed the issues pertaining to the case. I have no reason to reject Mr. Hartman's evidence on this issue as the meetings are something that would stand out for him. He had to travel to Toronto. He took a train. Further, the meetings were only five weeks before he testified.

287This issue is significant in that Dr. Shapiro testified that he met with Mr. Hartman to have him tell him of the events before he even reviewed the materials. If that was the case, then there was no possibility of Dr. Shapiro speaking to Mr. Hartman again after he had reviewed the materials, as Mr. Hartman did not meet with Dr. Shapiro again after March 9, 2017. Also, I note that the report is dated on the very date that Mr. Hartman says his one lengthy meeting with Dr. Shapiro took place. It is possible that Dr. Shapiro in fact only started the report on March 9 th , and then completed it prior to April 6 th . I am prepared to give him the benefit of the doubt, even though his memory should have been clear when he testified on April 19 and 20, 2017. The content is the same, and perhaps he simply forgot to change the date from his original draft. However, the most concerning finding I make is that the only in-depth interview that Dr. Shapiro did with Mr. Hartman was on March 9 th . Thus, there was no opportunity to put any contradictory or other information to Mr. Hartman prior to completing the report.

288Ms. Bojanowska asks that I place no weight on credibility or reliability due to this as it was not put to Mr. Hartman that Dr. Shapiro had said there were three meetings. I disagree. Ms. Breault was very fair in the way she covered this issue with Mr. Hartman. Also, it was open to Ms. Bojanowska to re-examine on this issue.

289The last issue that I will address with the report is that Dr. Shapiro testified that he was careful in this case about the way he approached his preparation as he wanted to ensure that it was objective and unbiased. I found Dr. Shapiro's report very difficult to read, and very incomplete as there were numerous references to Dr. Gojer's report, which I, of course, do not have. Further, my reading of Dr. Shapiro's report is such that I find that Dr. Shapiro was simply reinforcing Dr. Gojer's opinion, rather than providing an independent and objective opinion.

290The next area that requires mention is Dr. Shapiro's failure to consider the handwritten notes and put these potential contradictions in Mr. Hartman's memory to him. I wish to make it very clear that I placed no weight on the handwritten notes made by Mr. Hartman for his previous lawyer, as it pertains to findings of fact in this case. My sole purpose in addressing the evidence as it pertained to these notes is as it relates to Dr. Shapiro's opinion. I found Dr. Shapiro's evidence that he may have merely skimmed over these in his review of the file concerning. I found it even more concerning that, even when faced in court with the contents of these notes, he did not see that there were contradictions. His evidence that it would not have changed his opinion suggests to me that Dr. Shapiro was unprepared to accept any information that would change his view.

291The final area I will address as it pertains to Dr. Shapiro's evidence is his unwillingness to accept that the timing of the kink in Mr. Hartman's neck is important. I referred above to the following questions and answers on this issue:

Q. Would it have been...? Would you have paid greater attention to it if when he had the kink in the neck, he got up and walked around? Would that have been more important as...?

A. Then I would say he was awake, and it would be...it certainly would be relevant. And the likelihood of him going immediately back into deep sleep is less likely.

But it's my understanding that.... Well, I don't know. So I would need to have that information. You'd have to paint me the scenario. I'll tell you what I think.

292There was no need for Ms. Breault to paint a scenario for Dr. Shapiro. The paintbrush in this case was in Mr. Hartman's hand, and the canvas was Dr. Shapiro's report. It is very concerning that Dr. Shapiro did not know this information. What is more concerning, however, is that when confronted with this by Ms. Breault, Dr. Shapiro then dismissed the significance of the timing of the kink, stating that it was not salient. I found his dismissal of the importance of this information disingenuous, especially as I considered his earlier testimony to Ms. Bojanowska in examination-in-chief, wherein he stated:

Again, if you were fully awake, it would take you a while to go back to sleep, and you don't go immediately back into deep sleep. You go into light sleep and then medium sleep, and then back into light sleep and maybe more medium sleep, and then you might get into a deep sleep. There isn't that sort of slow transition.

293I note that the issue of timing of the arousal was an important consideration in R. v. Pond, supra. The matter was sent back for a re-trial as the trial judge had misconstrued the evidence on this issue. It was for this reason I carefully assessed this evidence.

294I find that Dr. Shapiro's evidence displayed bias and an unwillingness to accept any evidence that contradicted his opinion that Mr. Hartman was suffering from a parasomnia at the time of the incident. It will not rely upon Dr. Shapiro's evidence in this case.

295I will now turn my attention to the remainder of the evidence. Ms. Bojanowska asks that I accept the evidence of Mr. Hartman and that I consider intoxication of the Crown witnesses and the potential for collusion given that they discussed their evidence prior to testifying. Ms. Breault asks that I find that all of the witnesses were intoxicated, and that Mr. Hartman's inability to remember what he did to R.C. was due to an alcoholic blackout.

296I also remind myself that the evidence of all but one of the Crown witnesses was filed solely by way of transcript. Given the passage of time, this decision was certainly logical. However, I remind myself that there are challenges in assessing a case in this manner. I have considered the following comments by Fairburn, J. (as she then was) in R. v. Hinds, [2016] O.J. No. 247 (S.C.J.), at paragraph 99:

It is an acknowledged fact that assessing credibility from a transcript places a trier of fact at a disadvantage. The witness is not available so that her demeanour can be assessed. While demeanour should not be used as the sole basis upon which to rest credibility findings, it is a factor to take into account.

297I find that all of the civilian witnesses gave their statements the morning of February 12, 2011. From the evidence I know that Mr. Gordon's statement was given at 8:50 a.m. From the text exchange between Ms. McDonald and R.C. on February 12 th , we know that the statements were completed sometime before noon that day.

298In regards to evidence of the witnesses on this issue, I note the following:

i. R.C. was not asked any questions by Ms. Castle-Trudel about who she spoke to. While R.C. was cross-examined about her statement by Ms. Bojanowska, there was no suggestion made to R.C. that she had colluded with other witnesses prior to giving her statement.

ii. Mr. Gordon spoke to everyone who had been there and also his parents and landlord. No contradictions in his statement were put to him. When asked why he didn't describe what Mr. Hartman was wearing to the police, he reviewed his statement and said that it didn't appear that he was asked about that.

iii. M.T. agreed that he sat outside of court with the other witnesses waiting to testify and also that they had spoken of the case from time to time. M.T. agreed that he told the police that he thought Mr. Hartman was wearing jeans but when he spoke to R.C. she told him it was camouflage pants. M.T. said that he may have spoken to R.C. about the timing of when Ms. McDonald came out, as he was not sure she came out when he was with R.C. or not.

iv. Ms. McDonald agreed that she had been sitting with the witnesses waiting to testify. She estimated that they had spoken about six times about this incident prior to the trial in April 2012.

v. Mr. Dillabaugh agreed that they all spoke the morning of the incident and figured out where they were and who did what.

299It would be ideal if witnesses to an event could be interviewed prior to there being any opportunity to discuss the event. However, that is simply unrealistic. Whether it is a car accident, an assault, or any other event, where multiple people witness an event, it would be a normal human reaction to discuss the incident and try to piece together what happened. In most cases, I would find it less credible that witnesses claim to have not discussed an incident, especially one of significance.

300The witnesses all testified to significant alcohol consumption. Many acknowledged that they had some difficulties with their memory of the evening. Mr. Hartman acknowledged that alcohol may affect his memory, depending on the situation. Mr. Hartman acknowledged his evidence from the first trial, wherein he had agreed that he had been drunk and that he did not remember very much. He agreed with Ms. Breault that there were some small blanks in his memory about this night about small details, such as what might have been on a table in the garage, and a large blank in his memory when he was asleep. The following exchange took place during cross-examination in the trial before me:

Q. So just for my friend to follow along, on page 33 of your in-chief with Ms. Castle-Trudel, she asks you: "How drunk did you end up being?" You answer: "Drunk enough to not really remember too much." So she suggested, your lawyer suggested to you: "So there are big blanks in your memory." You said "Yes, unfortunately." So you're saying the big blanks is at what point?

A. When I'm asleep.

Q. Well, obviously nobody expects to remember anything when you're asleep, so what are the big blanks that you were talking about?

A. The portion when I'm asleep, I have no recollection of that. To me, that's a blank. Again, I see things in pictures.

Q. So you're saying that the rest of the evening is clear?

A. Yes, more or less.

301I do not accept, with Mr. Hartman having consumed as much alcohol as he did, and all but one of those drinks in the four-hour period between 10:45 p.m. and 2:30 a.m., that there would not be other blanks in his memory. I also found his evidence that the only big blank in his memory to be when he was asleep, to be incredible. Of course one is not expected to recall what takes place when one is asleep.

302If the Crown witnesses had intended to collude on their evidence, so that they would provide a cohesive and consistent picture of what took place, then they were unsuccessful in this endeavour. There were numerous inconsistencies between their accounts and recollections of the evening.

303In addition, I considered the following:

i. The evidence of the Crown witnesses at the trial in April 2012 was given prior to the defence of sexsomnia being raised. There was no suggestion that R.C. had told Ms. McDonald anything other than waking up with Mr. Hartman's penis in her anus. The Crown witnesses would have had no idea that there was any significance to where Mr. Hartman was sleeping prior to the sexual assault.

ii. Although there was evidence that Mr. Hartman made a comment that R.C. and M.T. should get a room when they were kissing, there was no suggestion by any of the witnesses that Mr. Hartman acted sexually inappropriate towards R.C. at any time.

iii. Mr. Dillabaugh had been upset with R.C. for sexually provocative behavior that evening. There would be no reason for him to make assertions that supported R.C. In addition, Mr. Dillabaugh was direct in advising when he had no memory of certain aspects of the evening.

iv. M.T. was no longer dating R.C. at the time of the trial in April 2012.

304I have carefully considered that the witnesses, including Mr. Hartman, had all consumed significant amounts of alcohol, and as such it is logical that they will have gaps in their memory – some of them significant. I have considered that the Crown witnesses spoke of the events together, as early as the date that it happened, and right up until they testified. I must be mindful of the nature and number of communications that witnesses may have, and be alive to any suggestion that evidence was changed as a result of interaction between witnesses. I am mindful of the information that Mr. Hartman had received from the interviewing officer upon his arrest.

305I have considered the evidence in its totality. As indicated in R. v. Ing, supra, I have stacked up the evidence of the witnesses to determine where there is harmony,

306I will first address the photographs that were filed, and then make further factual findings.

307In viewing the photographs filed, I find that this basement apartment was very small. The living area is very small and off of it there is one bedroom and a kitchen. The washroom is a small room essentially off of the kitchen. There are only four pieces of furniture in the living room where one could sit: a loveseat, two arm chairs and a lazy boy chair. All but one arm chair are situated directly around the television. The television is on a stand in the corner and on an angle (as opposed to flush against a wall) such that I find that anyone could easily watch shows on this television if seated on the loveseat, arm chair or lazy boy.

308The lazy boy is clearly visible from every portion of the small living area, and is situated right beside the door to Mr. Gordon and Ms. McDonald's bedroom. If one was seated on the loveseat, in the portion where there is no cushion (the area where Mr. Hartman was seated at one point), one could almost reach out and touch the lazy boy. There is a pillow on the lazy boy, which is consistent with Mr. Hartman being provided with a pillow.

309There is a blanket on the arm chair near the TV, and two bottles of beer, a glass of water and two remotes. I agree that these remotes would not be reachable if one was sitting in the lazy boy. However, I also note that Mr. Hartman's evidence was that his intention was to fall asleep watching the TV. There was no suggestion that he intended to turn the TV off before he went to sleep.

310I note that there are pizza boxes in the kitchen and also one in the garage. There is also uneaten pizza in the kitchen. This is consistent with Mr. Hartman's evidence that they had pizza that night.

311There are two beer bottles on the freezer in the corridor leading from the apartment to the stairway, which is consistent with R.C.'s evidence that she picked up a beer bottle and started to drink from it after she had gone there following the assault.

312There is one air mattress on the floor in the living area. There are no blankets or pillows on this air mattress. There is one air mattress on the floor in the kitchen. There is one pillow on the air mattress and a red sleeping bag on the floor beside the air mattress. The air mattress has been folded over and is no longer laid completely flat. I note that in order to access the washroom, one would have to either walk on, or very close to the air mattress, or move it out of the way. One can see from photograph 38 of Exhibit 3, and from Exhibit 9, that the mattress is not folded exactly in two. I find, in viewing these two photographs, that two pillows would fit on this air mattress, with little room between them. I have looked at the space itself in the kitchen, and also looked at the air mattress in the living room, and in particular as these air mattresses are situated near other pieces of furniture. While I am not taking judicial notice that this is either a queen-size or double-size mattress, I do find that it would be a close fit for two adults to sleep comfortably, and that it would not comfortably accommodate three people. I accept R.C.'s evidence that she and M.T. took up at least 2/3 of that air mattress, as it is logical when one looks at the size of the air mattress as well as considers R.C. and M.T.'s height and build.

313I make the following factual findings:

314On February 11, 2011 Mr. Gordon and Ms. McDonald hosted a party.

315In attendance were R.C., M.T., Justin Dillabaugh, Ms. Healey, Trevor and Lisa. Mr. Hartman was also present. Two other women stopped in but did not stay. The party took place primarily in the garage as it was larger. This garage was heated.

316All of those who stayed the night consumed significant amounts of alcohol. During the evening, some engaged in various, including talking, dancing, socializing, drinking, music, pizza and games of beer pong. R.C. did not recall Mr. Hartman playing beer pong with them. It does not appear that the other witnesses were asked if Mr. Hartman played beer pong. I cannot reject Mr. Hartman's evidence that he did play beer pong.

317At some point during the evening R.C. and M.T. were kissing and dirty dancing. Mr. Hartman made a comment that they should get a room. Mr. Dillabaugh got upset about R.C.'s behaviour and called her white trash. This resulted in an argument between R.C. and M.T. when he did not stand up for her. Mr. Hartman spoke about sex with Mr. Gordon. I note that they had only met a few times before this party. I accept Mr. Gordon's evidence that Mr. Hartman said that he was horny and had not had sex in a while.

318Mr. Hartman spent most of the evening downstairs in the apartment. I accept the evidence of Ms. McDonald, Mr. Gordon and Mr. Dillabaugh that Mr. Hartman did not spend much time in the garage with the others. This is in significant contrast to the evidence of Mr. Hartman which suggested that he only went downstairs on two occasions – one to have pizza with the others and then at around 2:00 when he started to watch TV. If I was to accept Mr. Hartman's evidence, he would have only been alone downstairs for about 15 minutes during the evening. The remainder of the time others would have been with him. I reject Mr. Hartman's evidence on this issue.

319At around 2:00 a.m. Mr. Hartman came upstairs and started to paint the snowmobile. This caused fumes in the garage and the door had to be opened. This caused the garage to be cold and Mr. Hartman was asked to stop.

320Mr. Dillabaugh brought Ms. Healey downstairs to lay down during the evening as she was not feeling well. Ms. Healey went to sleep on the loveseat. Mr. Dillabaugh checked on Ms. Healey a number of times throughout the evening. On one occasion Mr. Hartman was seated in the armchair near the TV, watching TV. On a subsequent occasion Mr. Hartman had moved from the armchair to the loveseat, and was sitting there with Ms. Healey's legs on top of him. Mr. Dillabaugh asked Mr. Hartman to move and Mr. Hartman did so. Mr. Dillabaugh thought that it was weird that Mr. Hartman would sit with his girlfriend but there was no disagreement that ensued. Mr. Dillabaugh went back upstairs to the garage.

321At some point in the evening Mr. Gordon or Ms. McDonald got out the air mattresses and they were blown up. Lisa went to sleep on one of these air mattresses. M.T. and R.C. went to sleep on the other. They were already asleep when Ms. McDonald went to bed. Mr. Gordon also confirmed that R.C. and M.T. were asleep by the time he went to bed, and he was among the last to go to bed.

322Ms. McDonald came down to go to bed and Mr. Hartman was seated in the lazy boy. He came to her room and asked her for a pillow so she gave him one.

323Mr. Gordon, Mr. Dillabaugh and Trevor were the last to come down from the garage to go to sleep. The consensus of all but Mr. Hartman was that people were going to bed between 3:00 and 3:30.

324When Mr. Gordon came downstairs Mr. Hartman was in the lazy boy and Mr. Gordon asked him if that was where he was going to sleep and he said yes. Mr. Hartman was awake and seated in the lazy boy when Mr. Gordon went to bed.

325At some point after that Mr. Hartman got up off the lazy boy, turned off the TV, and joined R.C. and M.T. on the air mattress in the kitchen.

326I cannot reject that it was a kink in his neck that woke Mr. Hartman, but I find that it is unlikely that he was simply looking for another place to sleep as the lazy boy would have been more comfortable than sleeping on a very small portion of an air mattress.

327I find that there would have been very little space available on the air mattress where R.C. was sleeping. I disagree that there would have been half an air mattress available, regardless of how close R.C. was sleeping to M.T.

328I find that Mr. Hartman anally penetrated R.C. and when she felt the pain in her anus and reached back to push him away, Mr. Hartman he let his body go limp and he pretended to be asleep.

329R.C.'s belt had been undone and her pants were pulled down to her thighs. I accept that R.C. got off the air mattress and went to the washroom, while still in a state of confusion and not understanding what was going on. As indicated both in her evidence and in the text messages exchanged with Ms. McDonald, R.C. was hoping that the person laying behind her was M.T. Her evidence at the first trial was that M.T. was wearing a hood and she couldn't see him when laying on the air mattress as it was dark.

330R.C. came out of the washroom and a man was still laying on the air mattress. She was able to see from the light of the washroom that this was not M.T. She vigorously shook M.T. and told him to get up. She then went to the corridor and was hyperventilating and was very upset.

331As M.T. was getting off the air mattress he saw that Mr. Hartman was laying on the air mattress. Mr. Hartman's eyes were open but they did not make eye contact and M.T. did not say anything. Mr. Hartman may have mumbled something at this point about making out with M.T.'s girlfriend.

332M.T. joined R.C. in the corridor. She was yelling and crying and said that she woke up with that man's dick in her ass and that he had raped her while sleeping. Mr. Hartman came out into the corridor and walked past them. As he did, he said to M.T., "I'm sorry man, I think I just woke up making out with your girlfriend."

333Ms. McDonald came out and joined them and was consoling R.C. I find that Ms. McDonald did not come out until Mr. Hartman had already gone upstairs. M.T. went back in to the kitchen to get their belongings and they left.

334R.C. told Ms. McDonald that she woke up with that guy's dick in her ass. Ms. McDonald asked where Mr. Hartman was and R.C. or M.T. told her that he was upstairs.

335When R.C. and M.T. left, Mr. Hartman was sitting in the garage with his head in his hands.

336Ms. McDonald was not in the garage when R.C. and M.T. left (which is substantiated by the texts in which Ms. McDonald did not know what happened between R.C. and M.T. with Mr. Hartman's snowmobile when they hit it). At some point prior to them leaving, Ms. McDonald went up to the garage and Mr. Hartman was there. Ms. McDonald asked him what the fuck had happened and he replied, "I don't know. I woke up to your friend making out with me." She didn't say anything else to him.

337I find that Mr. Hartman recalled R.C.'s hand on his hip as he was awake. I find that he lay there on the air mattress after R.C. got off the air mattress, pretending to be asleep, and that he was most likely trying to figure out what to say. I find that he made the comment to M.T. that he woke up making out with his girlfriend to suggest that there was an element of consent.

338I also find that Ms. McDonald's evidence confirms this. Ms. McDonald was not present when Mr. Hartman made the comment to M.T. that he thinks he woke up making out with his girlfriend. The information Ms. McDonald had received was that R.C. had woken up with a guy's dick in her ass. For Ms. McDonald to use the same phrase, "making out" would be quite a coincidence if that did not happen. I reject Mr. Hartman's evidence as to the conversation with Ms. McDonald, and I find that he did in fact say to Ms. McDonald that he woke up to her friend making out with him. Again, I find that Mr. Hartman was trying to inject an element of consent into his actions.

339I reject Mr. Hartman's evidence that when he was awoken by the commotion in the corridor and heard the accusation that he (referred to by R.C. as "that man") had anally raped R.C., that his first thoughts would be that he would never do that so it must have been only making out. I find it incredible that if one was accused of such a horrific act, and one was truly sleeping and had no recall of same, one would not ask for answers and an explanation in order to understand what had happened.

340In concluding that Mr. Hartman was, in fact, awake and aware of his actions when he sexually assaulted R.C., I also considered his evidence on the issue of R.C. touching him. Mr. Hartman testified in examination-in-chief that he had no recollection of anything taking place between laying down on the air mattress and being awoken by a commotion in the corridor. It was not until cross-examination that Mr. Hartman admitted that he had felt R.C. touch his leg or hip before she got up off the bed. I found this to be extremely concerning that Mr. Hartman would leave this out of his evidence in examination-in-chief. I also find it very troubling that he would not advised Dr. Shapiro of same. I find that he did in fact feel R.C. touch him, and it was when she reached back to push him away. I find that he was awake and aware of his actions when he penetrated R.C., and that he continued to be awake and aware when he lay there after R.C. went to the bathroom, and when M.T. eventually got off the air mattress.

341It may very well be that there are some aspects of the assault that Mr. Hartman does not remember. If that is the case, I find that this is far more likely to be the cause of an alcoholic blackout than any other reason. It is also possible that Mr. Hartman recalls the details of the assault and his assertion that he was asleep and has no memory is a fabrication. Regardless, I do not accept Mr. Hartman's evidence that he was asleep.

CONCLUSION

342Mr. Hartman has not met his onus on this case. It is improbable that any lack of memory is a result of anything other than an alcoholic blackout associated with the consumption of a large amount of alcohol over a period of four hours.

343I do not accept that Mr. Hartman was asleep when he sexually assaulted R.C., and I do not find that he was suffering from a parasomnia at the time of the sexual assault. His actions were not involuntary. Mr. Hartman is criminally responsible for his actions.

344I find Ryan Hartman guilty of sexual assaulting R.C. on February 12, 2011.