WARNING

The President of the panel hearing this appeal directs that the following should be attached to the file:

An order restricting publication in this proceeding under ss. 486.4(1), (2), (3) or (4) or 486.6(1) or (2) of the Criminal Code shall continue. These sections of the Criminal Code provide:

486.4 (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

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

(2) 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.

(3) In proceedings in respect of an offence under section 163.1, a judge or justice shall make an order directing that any information that could identify a witness who is under the age of eighteen years, or any person who is the subject of a representation, written material or a recording that constitutes child pornography within the meaning of that section, shall not be published in any document or broadcast or transmitted in any way.

(4) An order made under this section does not apply in respect of the disclosure of information in the course of the administration of justice when it is not the purpose of the disclosure to make the information known in the community. 2005, c. 32, s. 15, c. 43, s. 8;2010, c. 3, s. 5;2012, c. 1, s. 29.

486.6 (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.

(2) For greater certainty, an order referred to in subsection (1) applies to prohibit, in relation to proceedings taken against any person who fails to comply with the order, the publication in any document or the broadcasting or transmission in any way of information that could identify a victim, witness or justice system participant whose identity is protected by the order. 2005, c. 32, s. 15.

COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hartman, 2015 ONCA 498

DATE: 20150706

DOCKET: C56949

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Hartman

Appellant

Danielle Robitaille, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: February 12, 2015

On appeal from the order of Justice Wolfram Tausendfreund of the Superior Court of Justice, dated December 5, 2012, dismissing an appeal from the conviction entered on May 24, 2012, by Justice Charles D. Anderson of the Ontario Court of Justice.

Doherty J.A.:

I

OVERVIEW

[1] The appellant, Ryan Hartman, was charged with sexually assaulting R.C. The Crown proceeded summarily. The appellant testified and denied that he had sexually assaulted R.C. The trial judge convicted. The appellant appealed to the Summary Conviction Appeal Court alleging various errors in the trial judge’s reasons. That court dismissed the appeal. The appellant was subsequently sentenced to 14 months’ imprisonment and 3 years’ probation by the trial judge.

[2] The appellant seeks leave to appeal the decision of the Summary Conviction Appeal Court. His position has changed dramatically. He now admits, contrary to his evidence at trial, that he sexually assaulted R.C. as she alleged, but contends that he was asleep when it happened. Relying on expert evidence developed by new counsel retained after the failed first appeal, the appellant submits that he was in a parasomnic state when he sexually assaulted R.C. and should be found not criminally responsible on account of mental disorder (“NCR-MD”).

[3] New defences advanced years after the relevant events, only when other defences have been tried and failed and the convicted offender stands at the prison gate, must be viewed with considerable judicial suspicion. However, there will be cases in which the interests of justice require that an appellant be allowed to present a new defence on appeal. For the reasons that follow, this is one of those rare cases. I would grant leave to appeal, admit the fresh evidence, allow the appeal and order a new trial. I would direct that the new trial be limited to a determination of whether the appellant is NCR-MD or guilty.

II

the evidence at trial

[4] The appellant and R.C. were at a party at a home in the country outside of Brockville, Ontario. The appellant knew the host and a few of the others present at the party. He did not know R.C. and they had minimal contact during the party. R.C. was with her boyfriend.

[5] Everyone, including the appellant and R.C., were drinking during the party. The appellant gave somewhat conflicting evidence about his alcohol consumption, but it is fair to say he had quite a bit to drink over several hours that evening. It was eventually decided that the partygoers should spend the night, rather than drive home.

[6] As the party was winding down, the appellant was seated on a chair in the living room watching television. His host gave him a pillow and he fell asleep in front of the television.

[7] R.C. and her boyfriend fell asleep on a double sized air mattress on the kitchen floor at about 2:30 a.m. R.C. was fully clothed, but had removed her shoes. She had her arm around her boyfriend and was sleeping facing him.

[8] Sometime later, R.C. woke up feeling a pain in her anus. Her belt was undone and her pants were pulled down to her upper thigh. R.C. felt a person’s hand on her hip and she pushed the person away with her hand. When R.C. touched him, the person behind her immediately removed his hand and withdrew from her body.

[9] R.C. stood up, pulling up her pants as she rose. She went into the bathroom. As R.C. turned the bathroom light on, she saw that the person who was behind her when she awoke had dark hair. Her boyfriend was blonde. R.C. identified the appellant as the person who was lying behind her when she awoke and felt something in her anus.

[10] R.C. realized what had happened to her. She became very upset and started to cry. When her boyfriend asked her what had happened, she yelled “I just woke up with that guy’s dick in my ass”. She repeated the same allegation to the host.

[11] The appellant heard R.C.’s allegation. In the presence of R.C., he said to her boyfriend:

I’m sorry man I just woke up making out with your girlfriend.

[12] In cross-examination, R.C. agreed that she told the police that the appellant “was just pretending like he was sleeping” when she awoke. She also told the police that the appellant was pretending to snore and breathe heavily.

[13] R.C. and her boyfriend left the party and returned to his house. Later that day, she went to the hospital and spoke with the police. Two samples were taken from R.C.’s underwear for DNA testing. One sample revealed DNA belonging to at least three individuals, one of whom was male and could have been her boyfriend, but not the appellant. The other sample was so small that the identity of the DNA contributors could not be determined.

[14] The appellant testified. According to him, as the party was coming to an end, he found himself in the chair watching television in the basement. He fell asleep only to awake sometime later with a sore neck. The appellant decided to find a place to lie down and sleep. He saw R.C. and her boyfriend on the air mattress in the kitchen. They were both on one side of the double air mattress, so the appellant decided to go into the kitchen and sleep on the other side of the air mattress. He testified that he made his way into the kitchen and fell asleep on the air mattress facing away from R.C. and her boyfriend. He was not touching R.C. when he fell asleep.

[15] The appellant woke up sometime later to the sounds of a commotion. He was lying on his back, alone on the double mattress. He noticed that his pants were unzipped and he had an erection. After some confusion, the appellant realized that R.C. was accusing him of raping her. The appellant turned to R.C.’s boyfriend and said, “I think I just made out with your girlfriend”. When asked by counsel to explain this statement, the appellant testified that it was in response to R.C.’s accusation. The appellant went on to testify that he had no reason to think that anything untoward had happened. Despite testifying that he had significant gaps in his memory of the relevant events, the appellant was adamant that he did not touch R.C. while she was asleep, did not pull her pants down and did not put his penis anywhere near her body.

[16] In closing submissions, counsel for the appellant argued that R.C. was “dreaming” and that the events she described had not actually occurred. On the defence theory, R.C. awoke from the dream and saw the appellant lying behind her. Thinking the dream was real, she immediately believed that the appellant had assaulted her. The defence argued that from that point forward, R.C. and her friends were convinced that the appellant had sexually assaulted her and shaped their testimony accordingly. Counsel also argued that the DNA results supported the appellant’s claim that he had not assaulted R.C. In fact, as recognized by the Summary Conviction Appeal Judge, those results were neutral. They did not advance the Crown’s case, but did not exculpate the appellant.

III

should the sexsomnia evidence be admitted on appeal?

[17] I need not address the trial judge’s reasons or the reasons of the Summary Conviction Appeal Court. Neither is challenged in this court.[^1] The appeal turns entirely on the admissibility of the evidence proffered by the appellant on appeal, and particularly the admissibility of Dr. Julian Gojer’s evidence opining that the appellant was asleep when he assaulted R.C. On Dr. Gojer’s evidence, the appellant’s conduct was involuntary and not culpable. If Dr. Gojer’s evidence is admitted, leave to appeal must be granted and the appeal allowed: R. v. Stolar, 1988 CanLII 65 (SCC), [1988] 1 S.C.R 480, at pp. 491-93.

(a) The legal principles

[18] Evidence is admissible on appeal if it is “in the interests of justice” to receive the evidence: Criminal Code, R.S.C., 1985, c. C-46, s. 683(1).[^2] The reliability of verdicts is an essential aspect of “the interests of justice”. When, as in this case, the evidence proffered on appeal challenges a factual finding essential to the verdict reached at trial, the admissibility of the evidence will depend on three inquiries (see R. v. Truscott, 2007 ONCA 575, 225 C.C.C. (3d) 321, at paras. 80-125; R. v. Reeve, 2008 ONCA 340, 233 C.C.C. (3d) 104, at paras. 65-68):

• Is the proffered evidence admissible under the generally applicable rules of evidence governing criminal proceedings?

• Is the evidence sufficiently cogent to warrant its admission?

• What is the explanation for the failure to tender the evidence at trial, and should that explanation affect the admissibility of the evidence on appeal?

[19] The first two inquiries address prerequisites to admissibility. It will never be in the “interests of justice” to admit evidence on appeal that is not legally admissible under the normal rules of evidence. Nor will the “interests of justice” ever be served by admitting evidence that lacks sufficient cogency. The third inquiry does not go to a prerequisite to admissibility, but instead considers the explanation for the failure to lead the evidence at trial and whether that explanation compels the exclusion of the evidence even though it would otherwise be admissible on appeal. This inquiry, often referred to as the “due diligence” inquiry, recognizes that the “interests of justice” in s. 683(1) embrace administration of justice concerns such as finality that go beyond the specific interests of the appellant. For example, it may not be in the “interests of justice” to receive evidence on appeal, even though it is legally admissible and could reasonably be expected to have affected the result, if that evidence was available at trial and a tactical decision was made to not lead that evidence: e.g. see R. v. Maciel, 2007 ONCA 196, 219 C.C.C. (3d) 516, at paras. 36-55, leave to appeal to S.C.C. refused, [2007] S.C.C.A. No. 258.

[20] The cogency inquiry addresses three features of the evidence tendered on appeal. The proffered evidence must be relevant, in that it bears upon a potentially decisive issue at trial. The evidence must also be credible, in that it is reasonably capable of belief. Finally, the evidence must be sufficiently probative, in that it could reasonably be expected to have affected the result when taken with the other evidence adduced at trial and on appeal. On this appeal, the Crown and appellant’s disagreement centres on the probative value of Dr. Gojer’s opinion. They otherwise agree that his evidence is legally admissible, relevant and reasonably capable of belief.

(b) The allegations against trial counsel

[21] Before turning to a consideration of the probative value of Dr. Gojer’s evidence, I will address a second aspect of the fresh evidence. The appellant, in an effort to explain the failure to lead the evidence at trial, contends that his trial lawyer (not Ms. Robitaille) provided ineffective legal assistance. He argues that because of that incompetent representation, a “sexsomnia” defence was not investigated and advanced as it should have been. The appellant submits that because the failure to lead the evidence at trial is attributable to counsel’s ineffective representation, that failure cannot adversely affect the admissibility of the evidence on appeal.

[22] The Crown takes issue with the appellant’s claim that trial counsel provided ineffective assistance. Trial counsel filed an affidavit and was cross-examined on that affidavit.

[23] There is no credible and admissible evidence establishing that the appellant or any member of his family spoke with trial counsel about the appellant’s alleged history of parasomnia before the trial, or suggested to trial counsel that the appellant may have been asleep when the incident occurred. The appellant’s sister, who apparently raised and spearheaded the advancement of the sexsomnia defence on appeal, did not file an affidavit.

[24] In cross-examination on her affidavit, trial counsel candidly acknowledged that she was unaware of the defence of sexsomnia. The defence is rare, but as a practising criminal lawyer, counsel should have been aware of its existence. However, I do not think trial counsel’s ignorance of the defence is significant in this case. Even if she were aware of sexsomnia, on the facts known to her, the failure to pursue it did not fall below the level of competence.

[25] I do not agree that the references in R.C.’s police statement about the appellant pretending to be asleep and snoring would have necessarily led a reasonably competent counsel to investigate the sexsomnia defence. Having regard to the entirety of the complainant’s statement and the detailed written statement given by the appellant to his trial counsel, there was little reason for trial counsel to believe that the appellant was asleep when he assaulted R.C.

[26] Nor do I accept that the appellant’s assertions in his statement to counsel that he had “no memory of how this happened” and that “everything is a bit of a blur” were sufficient to necessarily cause a reasonable counsel to investigate the defence of sexsomnia. In the same statement, the appellant described himself at various points in the evening as having been “pretty drunk”, “blacked out” and “really drunk”. The appellant’s admitted excessive alcohol consumption provided a more obvious explanation for his memory lapses and confusion at the time of the incident than parasomnia. Trial lawyers, like medical clinicians, are trained to look for horses, not zebras. While some lawyers may have twigged to the possibility of a parasomnia defence, in the circumstances, I cannot conclude that it was incompetent for counsel to fail to recognize it as a potential defence.

[27] Although I would reject the appellant’s contention that he was the victim of ineffective assistance of counsel at trial, I do not think that the failure to lead the sexsomnia defence at trial should preclude the admissibility of the evidence on appeal. There is no suggestion that the failure to lead the sexsomnia defence was the result of a tactical decision made by trial counsel. Nor is there any suggestion that the appellant deliberately withheld the relevant information from trial counsel for some ulterior reason.

[28] The appellant did not tell his trial lawyer about the information that is said to be relevant to the sexsomnia defence because he did not appreciate the availability of that defence. Trial counsel did not make the inquiries that might have revealed that information, first, because she did not know that sexsomnia was a defence and, second, because there was nothing in the information given to her that would cause a reasonable lawyer who was aware of the sexsomnia defence to make inquiries into the availability of that defence. In those circumstances, nothing relating to the failure to lead evidence of sexsomnia at trial requires that evidence which would otherwise be admissible on appeal be excluded “in the interests of justice”: see R. v. J.A.A., 2011 SCC 17, [2011] 1 S.C.R. 628, at para. 8.

[29] Dr. Gojer’s evidence should be admitted on appeal if, considered along with the rest of the evidence, his opinion could cause a reasonable trier of fact to conclude, on a balance of probabilities, that the appellant was asleep when he assaulted R.C.: see R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290, at para. 179.

(c) The evidence

[30] The appellant filed a sworn affidavit, as well as affidavits from his mother, his girlfriend, and two reports and three affidavits from Dr. Gojer. The Crown cross-examined on all of the affidavits. The Crown filed two affidavits and reports from Dr. Mark Pressman. Counsel for the appellant cross-examined Dr. Pressman. The affidavits and cross-examinations of Dr. Gojer and Dr. Pressman express their competing opinions. Dr. Gojer says the appellant was probably asleep when he assaulted R.C. Dr. Pressman says the appellant was awake, but drunk. The other affidavits filed by the appellant provide evidence of the appellant’s history of sleepwalking as a child, the family history of sleepwalking, and other incidents of sexsomnia witnessed by the appellant’s girlfriend. Dr. Gojer relied on some of that evidence in forming his opinion. Dr. Pressman discounted much of that evidence as having little, if any, value.

[31] Dr. Gojer defined parasomnia as the term used to describe complex motor behaviours originating during sleep. Sleepwalking, sleep eating and sleep sex (sexsomnia) are examples of parasomnia. People who engage in motor activity while asleep, even complex motor activity, have no ability to control that activity. In most cases, persons have no recollection of that activity, although fragmented awareness is possible.

[32] Dr. Gojer explained that a diagnosis of parasomnia is made based on clinical information. Sleep study results can sometimes offer support for the clinical diagnosis.

[33] Dr. Gojer interviewed the appellant, his mother, his sister and his girlfriend. He read the reasons for judgment, the evidence of the complainant and the appellant, and the complainant’s statement to the police. He also considered certain sleep studies done by Dr. Shapiro on the appellant at Dr. Gojer’s request, which concluded the appellant suffered from mild sleep apnea and other abnormal sleep arousals. Relying on all of this information, Dr. Gojer opined that it was more likely that the sexual activity reported by the complainant occurred when the appellant was asleep. During re-examination on his affidavit, Dr. Gojer said:

So it’s not just what the client tells you which would be a fatal error in a clinical setting or in a forensic setting. You want to look at what the bystanders have seen, what the victim reports and what family members report, so you have information intersecting from different areas merely to confirm the diagnosis of a parasomnia. So there is really no doubt in my mind that this individual had parasomnia. And given that we weren’t there on the day in question, the question is, “Would he have had a parasomnia on the day in question?” The answer is highly likely that he would have. And a parasomnia, in my opinion, would equate to a person not being in a state where he would be in control of his physical activities, which would also be labelled as an automatism for a legal purpose.

[34] My review of Dr. Gojer’s reports and evidence reveals nine factors relied on by Dr. Gojer in coming to his opinion:

1. the family history, including the appellant’s mother sleepwalking as a child;

2. the appellant’s sleepwalking as a young child;

3. the appellant’s other associated sleep disorders: e.g. nightmares and sleep paralysis;

4. the appellant’s girlfriend’s evidence that the appellant had engaged in sexual activity on prior occasions while he was asleep. On one occasion, she awoke to find the appellant, apparently asleep, masturbating beside her in bed;

5. alcohol consumption as a triggering factor for parasomnia and the appellant’s reported drinking before he went to sleep;

6. the appellant’s lack of recollection of any sexual interaction with the complainant;

7. the absence of other allegations of sexual misconduct and the inconsistency of the sexual assault with the appellant’s character;

8. some of the circumstances of the assault, as described by both the complainant and the appellant, were consistent with the appellant being asleep; and

9. the brazenness of the assault also suggested it was not volitional.

[35] In addition to the factors set out above, Dr. Gojer testified that the mild sleep apnea reported by Dr. Shapiro and some of the readings on the electroencephalograph administered by Dr. Shapiro supported his clinical diagnosis of parasomnia.

[36] Taken at face value, Dr. Gojer’s opinion that the appellant was asleep would clear the probative value component of the cogency inquiry. However, Ms. Bartlett-Hughes, Crown counsel, has marshalled a detailed and powerful attack on the probative value of that evidence. She points to weaknesses and failings in Dr. Gojer’s opinion which she contends undermine many of the nine factors he relied on. Crown counsel also relies on the evidence of Dr. Pressman. She accepts that both Dr. Gojer and Dr. Pressman are qualified experts, but submits that, on a fair reading, Dr. Pressman clearly knows a lot more about sleep disorders and the interpretation of sleep studies. She submits that Dr. Pressman’s opinion is entitled to much more weight than Dr. Gojer’s.

[37] To succeed on the appeal, the appellant does not have to convince the court that Dr. Gojer’s opinion should be accepted and preferred over Dr. Pressman’s. If the appellant satisfies this court that a reasonable trier of fact could, in the context of the entirety of the record, including Dr. Pressman’s opinion, accept Dr. Gojer’s opinion that the appellant was asleep on a balance of probabilities, the appeal must be allowed and the matter returned to the trial court. It would be for the trial court to decide whether Dr. Gojer’s evidence should ultimately be accepted.

[38] I think the appellant has cleared that hurdle. Given this conclusion and the relatively narrow function of this court, I am reluctant to engage in a detailed analysis of Dr. Gojer’s opinion. I do, however, acknowledge the force of several points made by Crown counsel in her analysis of Dr. Gojer’s evidence.

[39] Dr. Gojer appears to have uncritically accepted the appellant’s assertion that he had no recollection of any sexual interaction with R.C. (factor 6). This assertion is contradicted by the appellant’s evidence under oath at his trial and his description of the interaction with R.C. in his statement to trial counsel provided within days of the incident. Dr. Gojer mentions neither.

[40] Dr. Gojer’s opinion that alcohol is a trigger of parasomnia (factor 5) appears contrary to the current understanding of sleep disorder experts, as set out in the generally recognized authoritative literature. Dr. Pressman’s opinion contains an impressive summary of that literature.

[41] Dr. Gojer does not explain how his expertise in sleep disorders, and specifically sexsomnia, allows him to comment on the appellant’s character as it relates to sexual conduct, or the significance of the apparent brazenness of the assault (factors 7, 9). Both factors involve judgments that have nothing to do with an expertise in sleep disorders.

[42] Finally, there is merit to the Crown’s submission that Dr. Gojer’s unexplained and outright dismissal of intoxication as a possible explanation for the appellant’s conduct suggests a less than objective assessment of those events. Alcohol is perhaps the most obvious explanation.[^3]

[43] Despite these criticisms of Dr. Gojer’s opinion, I am satisfied the appellant has met his burden on the fresh evidence application. A reasonable trier of fact might well disagree with the criticisms outlined above. Furthermore, apart from those criticisms, there was believable evidence that the appellant had a family history of parasomnia, a personal history of parasomnia and associated sleep disorders, and that he had on other occasions engaged in sexual activity while asleep (factors 1, 2, 3 and 4).

[44] R.C.’s statement to the police and her evidence at trial also provided some independent support for the appellant’s sexsomnia claim. She described the appellant as sleeping and snoring at the time of the assault. Although she opined that he was “only pretending”, R.C.’s observations of the appellant, placed in the context of his personal and family history of parasomnia and the appellant’s other episodes of sexsomnia, could cause a reasonable trier of fact to accept Dr. Gojer’s opinion.

[45] For the sake of completeness, I should add that counsel for the appellant also made a vigorous and effective attack on several aspects of Dr. Pressman’s opinion. She argues that his insistence that the appellant’s activities in the course of the assault were too complicated to have occurred during sleep was unsupported by the evidence and based on a series of assumptions seemingly designed to make the incident appear much more complicated than it was. Counsel also refers to Dr. Pressman’s unwillingness to ascribe any significance to the complainant’s description of the appellant at the time of the incident, as not only inconsistent with Dr. Pressman’s earlier indication that independent eyewitness descriptions provide important, direct evidence of parasomnia, but as contrary to common sense.

[46] My analysis of the proffered evidence, considered in the context of the trial record, leads to the conclusion that there are valid reasons to accept or reject the opinions of Dr. Gojer and Dr. Pressman. That conclusion compels the finding that the appellant has met his onus of showing that a reasonable trier of fact could accept Dr. Gojer’s opinion and find on the balance of probabilities that the appellant was asleep at the time of the assault. That finding renders the verdict a miscarriage of justice. The evidence should be received under s. 683(1) and the conviction quashed.

IV

the appropriate order

[47] The Criminal Code provides for three possible orders when the Court of Appeal allows an appeal from conviction.[^4] The court may enter an outright acquittal, make a finding of NCR-MD, or order a new trial: see R. v. Warsing, 1998 CanLII 775 (SCC), [1998] 3 S.C.R. 579, at paras. 61-68. Counsel for the appellant does not suggest that an acquittal should be entered. She acknowledges that if the sexsomnia defence were to succeed, it would lead to a finding of NCR-MD and not an outright acquittal: see R. v. Luedecke, 2008 ONCA 716, 93 O.R. (3d) 89.

[48] This is also not a case in which this court should enter an NCR-MD finding: Criminal Code, s. 686(1)(d). As discussed above, the Crown and the appellant have presented competing opinions, either of which could reasonably carry the day. The evidentiary assessments necessary to determine which of the two opinions should carry the day can only be made in the trial venue: Warsing, at para. 65; Stolar, at p. 493.

[49] A new trial is the appropriate order in these circumstances.

[50] The question remains whether the new trial can and should be limited to a determination of whether the appellant is guilty as charged or NCR-MD. Counsel for the appellant takes the position that if the court has jurisdiction to make that order, the appellant does not oppose that order. Crown counsel takes the position that if the court is ordering a new trial, it should be limited to a determination of whether the appellant is guilty or NCR-MD.

[51] When this court allows an appeal and orders a new trial pursuant to s. 686(2) of the Criminal Code, the court may, under s. 686(8), “make any order, in addition, that justice requires.” In Warsing, at paras. 72-74, the Supreme Court held that where an NCR-MD defence was raised for the first time on appeal from conviction, the court could not, in ordering a new trial based on the evidence of mental disorder, rely on s. 686(8) to limit the new trial to a choice between a verdict of NCR-MD and a verdict of guilty. In so holding, the Supreme Court concluded that an order foreclosing the possibility of an acquittal on the new trial would interfere with the accused’s right to control his own defence and the presumption of innocence, and could not be in the interests of justice. In Warsing, the appellant wanted an opportunity at the second trial to secure an acquittal on the merits.

[52] In Luedecke, this court considered the Warsing analysis of the scope of s. 686(8) in circumstances that have some similarity to the present case. In Luedecke, the Crown appealed from an acquittal based on a sexsomnia defence. The court held that the appeal should succeed as the trial judge had misapplied Stone in entering an acquittal, as opposed to a finding of NCR-MD. The respondent (the accused) argued that the new trial should be limited to a choice between NCR-MD and not guilty. He took the position that the trial judge’s finding that his actions were not voluntary should stand and that he should not be exposed to the risk of a conviction at a new trial. This court accepted this submission holding, at paras. 137-38:

The accused supports the order limiting the scope of the new trial. He does not seek to re-litigate the voluntariness issue. In those circumstances, it cannot be said that a limit on the scope of the new trial would interfere with the accused’s conduct of his own defence. To the contrary, the proposed order would reflect the manner in which the accused wishes to conduct his defence.

The submissions made on behalf of the respondent have convinced me that s. 686(8) does authorize an order ancillary to an order for a new trial made under s. 686(4) limiting the scope of the new trial. That ancillary order may be made only where it does not interfere with any of the accused’s rights and is otherwise consistent with the demands of justice in the circumstances.

[53] Through counsel, the appellant has acknowledged the assault on R.C. in this court. He does not seek the opportunity to gain an acquittal at the new trial, but rather seeks an opportunity to show that he was not criminally responsible for the assault on R.C. In light of the position taken on appeal, I do not think an order limiting the new trial to a choice between NCR-MD and guilty would offend the presumption of innocence or interfere with the accused’s right to control his own defence. To the contrary, as in Luedecke, an order limiting the scope of the new trial would reflect the manner in which the appellant wishes to conduct his defence at the new trial.

[54] This is also not a situation in which an order limiting the new trial to a choice between NCR-MD and guilty could create practical problems, as in cases where evidence relevant to an NCR-MD finding would also be relevant to mens rea: see Warsing, at para. 74. Counsel for the appellant and the Crown agree, correctly in my view, that the sexsomnia-related evidence, if accepted, can lead only to an NCR-MD verdict and cannot justify an acquittal.

[55] Finally, I think an order limiting the new trial would serve the administration of justice in one additional way. R.C. has asserted from the moment it happened that she was sexually assaulted by the appellant. Now, after many years and contrary to the position taken throughout, the appellant acknowledges that he did indeed sexually assault R.C. He seeks an opportunity to show that he was not criminally responsible for that action because he was asleep. For the reasons set out above, I think the appellant should have that opportunity.

[56] That opportunity is not, however, in any way compromised by an acknowledgement of the validity of R.C.’s complaint. An order limiting the new trial to a determination of whether the appellant was NCR-MD or guilty as charged would provide that acknowledgement to the complainant and remove the possibility, however small, that at the new trial the validity of R.C.’s assertion that she was sexually assaulted would once again be tested, despite the admission made on behalf of the appellant in this court.

V

conclusion

[57] I would grant leave to appeal, allow the appeal and quash the conviction. I would direct a new trial, but limit the new trial to a determination of whether the appellant was NCR-MD at the time he assaulted R.C. or guilty as charged.

RELEASED: “DD” “JUL 06 2015”

“Doherty J.A.”

“I agree E.A. Cronk J.A.”

“I agree H.S. LaForme J.A.”

[^1]: In her factum, counsel argued that the trial judge should have raised the sexsomnia defence on his own motion. She did not pursue that argument in her oral submissions.

[^2]: Section 683 is incorporated into the provisions governing appeals to the Court of Appeal in Summary Conviction matters: see s. 839(2).

[^3]: Interestingly, Dr. Pressman takes the opposite but equally unequivocal position that because the appellant was drunk, he could not have been asleep.

[^4]: The remedial provisions in Part XXI of the Criminal Code, dealing with appeals in indictable matters are incorporated into s. 839: see s. 839(2).