Publication Ban Warning

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), (2.1), (2.2), (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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 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

(iii) REPEALED: S.C. 2014, c. 25, s. 22(2), effective December 6, 2014 (Act, s. 49).

(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) 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 victim of the right to make an application for the order; and

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

(2.1) Subject to subsection (2.2), in proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice may make an order directing that any information that could identify the victim shall not be published in any document or broadcast or transmitted in any way.

(2.2) In proceedings in respect of an offence other than an offence referred to in subsection (1), if the victim is under the age of 18 years, the presiding judge or justice shall

(a) as soon as feasible, inform the victim of their right to make an application for the order; and

(b) on application of the victim or the prosecutor, 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; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25, ss. 22, 48; 2015, c. 13, s. 18.

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

Date: 20211116 Docket: C67789

Doherty, Pardu and Thorburn JJ.A.

BETWEEN

Her Majesty the Queen Respondent

and

Jesse Wabegijig Appellant

Counsel: Jeff Marshman, for the appellant Joan Barrett, for the respondent

Heard: November 9, 2021

On appeal from the convictions by Justice V. Christie of the Ontario Court of Justice on July 24, 2019.

Reasons for Decision

[1] The appellant entered the home of the victim in the middle of the night. The victim and the appellant did not know each other. The appellant partially undressed and climbed into bed with the victim and her husband. He sexually assaulted the victim while she slept. The victim awoke and a struggle ensued. The appellant grabbed the victim’s cellphone from her as she attempted to take a picture of him. He then struck the victim in the face. Seconds later, the victim’s son and husband became involved in the struggle. The police arrived and arrested the appellant. He appeared disoriented and intoxicated.

[2] The appellant was charged with several offences, including sexual assault. The defence accepted that the appellant had committed the various alleged assaults, including the sexual assault. The defence argued, however, that the appellant did so in a state of parasomnia, rendering his conduct involuntary. The defence contended the appellant should be found not criminally responsible on account of a mental disorder (NCRMD). The defence called an expert witness in support of its position. The appellant also testified.

[3] The Crown maintained the appellant was not in a parasomnic state, but was highly intoxicated at the relevant time, although not so intoxicated as to render his conduct involuntary. The Crown called an expert in support of its position. There was substantial evidence from which the trial judge could conclude the appellant was heavily intoxicated when he entered the victim’s home.

[4] The trial judge reviewed the lengthy evidence in detail and with obvious care. She rejected the defence position. In coming to her conclusion, the trial judge examined the competing expert evidence at length. She preferred the evidence of the Crown expert in areas where there was some conflict between the evidence offered by the two experts. The trial judge explained why she preferred the evidence of the Crown expert. The trial judge also reviewed the appellant’s evidence at length. She found that he was not a credible witness on certain issues and, once again, explained how she came to that conclusion.

[5] On appeal, counsel alleges various material misapprehensions of the evidence by the trial judge in her reasons. We are not persuaded the trial judge made any material misapprehension of the evidence.

[6] The appellant claims the trial judge misapprehended the evidence concerning the appellant’s prior parasomnic events and that this misapprehension caused the trial judge to undervalue the evidence of those events when determining whether the appellant was in a parasomnic state at the relevant time. The trial judge reviewed the relevant evidence (paras. 177-80). She ultimately declined to give the evidence the probative value the appellant claimed it should have. The trial judge explained that the evidence of the prior parasomnic events was very different from the evidence of the circumstances surrounding the alleged offences. In light of those differences, she could not give the evidence of the prior events significant probative value.

[7] The process engaged in by the trial judge reveals no misapprehension of the evidence. It does reveal a reasoned assessment of the weight to be accorded the evidence of the prior parasomnic events.

[8] The appellant further submits the trial judge misapprehended the experts’ evidence concerning the use to be made of certain clinical manuals like the DSM-V and misapprehended the experts’ evidence as to the meaning of the word “diagnosis” as used in those manuals. The appellant contends these errors led the trial judge to misunderstand the relationship between parasomnia and alcohol intoxication.

[9] Counsel took us to several paragraphs in the trial judge’s reasons (e.g. paras. 191-92). We see no misapprehension of the evidence, or any misunderstanding as to the use the trial judge could make of material such as the DSM-V. As we understand these passages, the trial judge was critical of the defence expert’s evidence because, although the defence expert recognized that evidence of intoxication at the relevant time made a diagnosis of parasomnia more problematic, the defence expert did not take that factor into account in this case, despite the substantial evidence to the effect that the appellant was intoxicated when he assaulted the victim. The trial judge’s observation accords with the record and we see no error in this part of her analysis.

[10] Counsel further submits that the trial judge erred in making findings against the credibility of parts of the appellant’s testimony based on inconsistencies between the appellant’s evidence and other accounts he gave of the same events. Counsel submits these inconsistencies are relatively minor and can be explained by the appellant’s condition on the night of the events. The appellant points out, that from either the prosecution or defence perspective, the appellant was in a condition in which one could reasonably expect that his memory of events would not be clear or complete.

[11] The trial judge considered the appellant’s credibility (paras. 181-86). There were inconsistencies in the various versions of events provided by the appellant at different times. It was for the trial judge to assess the impact of those inconsistencies on the appellant’s credibility and the reliability of his evidence. She made no error in that regard.

[12] The appellant next submits the trial judge wrongly declined to take the appellant’s character into account when assessing whether the appellant was in a parasomnic state or acting under the influence of alcohol when he assaulted the victim. It is accepted that the appellant is not a violent person, has no history of sexually abusive conduct and finds that conduct abhorrent.

[13] The trial judge said, at para. 193:

He [the defence expert] went so far as to say that based on the unusualness of the behaviour, including the blatant and discoverable nature of the behaviour, it was more likely to be parasomnia or sexsomnia. In the view of this court, this opinion is overreaching on the part of the expert and an attempt to usurp the role of the trier of fact. It would also appear to be dangerous and illogical to suggest that because someone acts out of character, the actions are more likely to be involuntary.

[14] There was no doubt that the appellant’s conduct was totally out of character. The question was whether he acted totally out of character because he was asleep or because he was very drunk. Like the trial judge, we do not see how evidence of the appellant’s character can provide any insight into the reason he acted so uncharacteristically when he perpetrated the assaults.

[15] At trial, as an alternative position, the defence argued, that if the trial judge found the appellant was not in a parasomnic state, the trial judge should find he was in a state of extreme intoxication akin to automatism and did not act voluntarily. Counsel argued that s. 33.1(2) of the Criminal Code, which excludes automatism as a consequence of intoxication as a defence to assault, was unconstitutional and of no force and effect.

[16] The trial judge recognized that different courts had come to different conclusions with respect to the constitutionality of s. 33.1(2). She assumed the section was unconstitutional and considered the availability of the defence on its merits. [1] The trial judge found that, while the appellant was clearly intoxicated, there was no evidence to suggest the very high level of intoxication required to support a finding of intoxication induced automatism (para. 209).

[17] In his factum, counsel did not argue that the trial judge’s finding with respect to the level of intoxication was an unreasonable one. Counsel did submit, however, that the trial judge improperly focused on the quantity of alcohol consumed rather than its effect on the appellant, and that she misapprehended the evidence of the defence expert as to the degree of intoxication. Counsel did not advance oral arguments in support of these submissions. These arguments come down to a quarrel over the weight to be assigned to various parts of the evidence. Weighing evidence is the trial judge’s job and not the job of this court.

[18] The appeal is dismissed.

“Doherty J.A.”

“G. Pardu J.A.”

“J.A. Thorburn J.A.”

Footnotes

[1] Subsequent to the trial judge’s decision, this court declared s. 33.1(2) unconstitutional in R. v. Sullivan, 2020 ONCA 333. Sullivan is currently reserved in the Supreme Court of Canada.