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or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 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) 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

Court Information

ONTARIO COURT OF JUSTICE

DATE: 2018-08-14

COURT FILE No.: Central East Region: Oshawa Court File No. 16-35660

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

B.M.

Before: Justice Peter C. West

Evidence Heard on: June 5, 6, 7 and 26, 2017

Oral Submissions made on: February 12, 2018 and June 6, 2018

Reasons for Judgment released on: August 14, 2018

Counsel:

Ms. T. D'Eri and Ms. S. Thompson — counsel for the Crown

Mr. T. Balka — counsel for the defendant B.M.

REASONS FOR JUDGMENT

WEST J.:

Introduction

[1] B.M. is charged with sexually assaulting C.G. on July 9, 2016. The main issue in this case is not whether the sexual conduct occurred but whether B.M.'s actions were involuntary. In fact, B.M. does not dispute C.G.'s account of what happened and the defence conceded the type of touching would have violated the sexual integrity of C.G.

[2] The Crown called four witnesses, M.Y., B.M.'s girlfriend; C.G., the complainant; P.C. Scott Mitchell, the arresting officer and Ms. Kimberley Sharpe, CFS Biologist, Expert in DNA. The defence called three witnesses, B.M. testified on his own behalf, Dr. Kenneth Buttoo, who was qualified as an expert in sleep disorder, parasomnias and sexsomnias and C.M., B.M.'s mother. Four days were initially set for the trial but Dr. Buttoo's evidence was not completed on June 7, 2017 and he was not available on June 9, 2017, when the trial was scheduled to continue. Counsel attended the trial co-ordinator and they were able to set an early continuation date on June 26, 2017. Dr. Buttoo's evidence took the entire day to complete. The defence intended to call one further witness and unfortunately the earliest date for the final witness's evidence and for oral submissions to be heard was December 18, 2017. The case could not proceed because I was involved in a trial involving a defendant who was in custody and B.M.'s continuation was adjourned to February 12, 2018. The Crown's submissions were not completed on that date and a further date had to be scheduled. Once again, because of counsel and the Court's schedule the first continuation date was June 6, 2018. Mr. Balka advised in December 2017 that s. 11(b) of the Charter was not an issue in this case. When submissions were not completed in February 2018, Mr. Balka again advised that s. 11(b) of the Charter was not in issue.

[3] I also received extensive casebooks and written submissions in point form from both counsel, which addressed the main issue in this trial. I want to express my appreciation for the excellent work done by both counsel in their presentation of the evidence and in their final submissions. This was a very complicated and complex trial.

[4] These are my reasons for judgment.

Factual Background

Evidence of C.G.

[5] On July 9, 2016, C.G. was asleep in her friend, M.Y.'s parents' bedroom when she was awakened by feeling something touching her butt, inside her butt. She felt a little bit of pressure and then she woke up. She was laying on her right side on the side of the bed closest to the bathroom door. She was not sure what was going through her mind at that time. She had absolutely no idea what might have been touching her. She turned around and saw B.M. standing beside the bed. He was behind her and she believed he had no clothes on. She did not know what time it was.

[6] When she went to bed she had on her black leggings, panties and a green tank top and bra. When she saw B.M. standing by the bed she did not see his penis as she did not look specifically in that direction. There was sunlight coming in through the window into the room.

[7] She had a pretty good view of B.M. She was speaking to him and was looking at his face. She did not look down. She saw an image of a body with no clothes on and she did not see his penis.

[8] She asked him, "What are you doing?" and he did not reply. His eyes were open. He was looking directly at her and she asked him a question and he simply did not answer her. When she first saw him he was standing beside the bed and was not on the bed. She moved to the other side of the bed, pulled up her pants and threw the covers over herself. When she felt the pressure her leggings and underwear were down to her knees. B.M. got into the bed and tried to pull the covers off of her. He did not say anything to her and his eyes were still open. C.G. got out of the bed and went to M.Y.'s bedroom. B.M. did not follow her or try to stop her from leaving.

[9] She woke up M.Y. and told her what had happened. M.Y. went to her parents' room and asked B.M. to leave. They went downstairs and she could hear them arguing. B.M. was saying, "Why?" when Y.M. was telling him to leave. He ultimately left the house.

[10] C.G. called 911 at 6:23 a.m. C.G. saw B.M. standing and waiting by his truck. When B.M. left the house he had on his clothes. C.G. knew M.Y. had to get him a shirt from her bedroom but other than that she was not sure what he was wearing.

[11] C.G. told the police when M.Y. was telling B.M. to get leave he was acting like he did not know what was going on. He said, "Why, I don't understand." It seemed to her B.M. had no idea what M.Y. was talking about. He kept asking, "Why do I have to leave" and "I don't understand." "I don't understand what's going on." He acted like he did not know what happened. She heard him telling M.Y. he had to find his clothes.

[12] She told the police on 911 she was not really sure what to do and that she did not need the police right away. She just wanted to get some advice.

[13] Only 15 or 20 minutes passed from the time she felt the pressure until B.M. left the house. The police arrived fairly quickly. C.G. attended the hospital afterwards and was examined. She felt a burning sensation in her bum hole, which she attributed to what had happened earlier that morning.

[14] Earlier on July 8, 2016, C.G. and M.Y. were at C.G.'s house hanging out. She consumed two beers and a shot of vodka. They had plans to go out to the Tartan Bar with B.M. later in the evening. B.M. and M.Y. had been dating for some time. He came to C.G.'s home and drove them around eleven o'clock to the Tartan Bar. M.Y. and C.G. were mostly in the back room where there was a dance floor and B.M. was with them for some parts of the night. When they first arrived they each had a bottle of beer.

[15] C.G. had three more bottles of beer and a Jagerbomb. She did not see B.M. drink any more alcohol. A Jagerbomb is a shot of Jagermeister and an energy drink. They left the Tartan Bar around two in the morning. B.M. ordered "Keys to Us" to drive his vehicle back to M.Y.'s house. They sat at the kitchen table, had another bottle of beer and played cards. C.G. went to bed first.

[16] When C.G. went to bed she testified B.M. seemed okay to her in terms of his level of intoxication or sobriety, he was not overly intoxicated. She had seen B.M. on previous occasions when he was intoxicated, slurring his words, having a hard time walking and this was not one of those times.

[17] C.G. testified she and M.Y. and B.M. were close friends, they cared about each other. B.M. would be someone she turned to in times of trouble. She considered him to be a very good friend. B.M. knew her before he started to date M.Y., in fact, C.G. introduced them. B.M. never showed any romantic interest in her at all. At no point did he ever try to date her. He had never made any pass or inappropriate text or anything to her. This incident was an absolute shock to her because it seemed to be out of character for B.M.

[18] When B.M. picked them up it was clear to her he had not had anything to drink before coming to C.G.'s house.

[19] When the police arrived she was absolutely fine to explain to the police what happened. She had told the police between nine o'clock July 8 and July 9 at 2 a.m., she had five beers and two Jager shots. She also had some vodka. This did not affect her ability to recount what happened when she went to the hospital. She also had a bottle of beer back at M.Y.'s house before going to bed. She did not believe anyone was intoxicated, including B.M.

[20] The leggings C.G. was wearing were easy to get off as they were a looser brand.

[21] When C.G. was speaking to the 911 operator they asked if this had happened before with B.M. and C.G. mentioned a previous incident with another friend, E.G. This happened at B.M.'s house. E.G. was sleeping in a second floor bedroom and B.M. was in his bedroom on the second floor. C.G. was sleeping on a couch on the first floor with M.Y. At some point E.G. woke her up and said B.M. had touched her and they had to leave. She did not believe what E.G. was saying but after what happened to her she thought back to this incident. C.G. did not speak to B.M. about it but M.Y. did.

[22] C.G. provided a statement to the police. At the conclusion of her statement the officer asked her, "So as far as you know he (referring to B.M.) was completely unaware of what happened," and she replied, "Yeah." She agreed with the officer's statement. Her answer to the officer was based on all of her observations of B.M. during that evening.

[23] In her police statement she told the officer it was her belief from what she experienced in terms of the pressure that "Someone had put something, at least like a little bit inside of me, and that's when I felt it."

[24] At the time of this incident she had a steady boyfriend for quite some time and B.M. was aware of that. B.M. had met her boyfriend before.

[25] In re-examination the Crown asked the following questions of C.G. and received these answers:

Q. Ma'am, Mr. Balka just asked you about something the officer had asked you about in the statement when the officer said something like, "As far as you knew B.M., was completely unaware of what happened." And you said, "Yes."

A. Yes

Q. Do you remember when Mr. Balka was putting that to you, the question and answer from the statement.

A. Yes

Q. When you agreed to that, that as far as you know he was completely unaware of what happened, what were you basing that on?

A. I was basing it on in the morning he just didn't seem like himself.

Q. What part of the morning?

A. When he was acting like he didn't know what was going on.

[26] It is my view, in giving her statement to the police, her answers concerning B.M.'s actions and conduct when she discovered him in the bedroom and her answers in re-examination, that C.G. was describing how on the morning the incident occurred B.M. was unaware of what had happened and he did not seem like himself.

Evidence of M.Y.

[27] M.Y. first met B.M. in August 2014. They were dating for approximately two years. C.G. was one of M.Y.'s closest friends for many years, since Girl Guides.

[28] On July 8, 2016, she was at C.G.'s house in Oshawa where they had a barbeque. B.M. picked them up later and the three of them went out to the Tartan Bar. M.Y. believed they had a beer with their dinner. M.Y. and B.M. had been texting each other. He picked them up around 11 o'clock in the evening.

[29] M.Y. and C.G. were with each other the entire night but B.M. was in the front of the bar and would come occasionally and hang out with them. M.Y. believed she had three beers at the bar. They left together around last call at 2 a.m. They had a designated driver service take them back to M.Y.'s house on […] Drive in Oshawa. Her parents were at the cottage. They each had another beer and played cards.

[30] C.G. was the first person to go to bed and she was sleeping in M.Y.'s parents' bedroom. At some point B.M. laid down on the couch and started to get undressed. He took his shorts off. He had boxers underneath. M.Y. wanted him to come upstairs to her bedroom. She believed B.M. had four bottles of beer at her house. M.Y. testified B.M. "didn't seem coherent" with what she was asking him – he "wasn't really responsive" to what she was saying. She helped him put his pants on. He appeared as if he had too much to drink – he was tired. She helped him because he did not seem able to do it himself, as he was drunk.

[31] After getting his pants on M.Y. kind of helped B.M. upstairs as she felt he needed help. This was around 3 a.m. They went to her bedroom. She believed he just lay on the bed with his pants and boxers on, although she could not say for sure what he was wearing. The next thing she remembered was C.G. waking her up. B.M. was not in the bed at that time. C.G. told her she woke up to B.M. over her in the bed. She told M.Y. she woke up to feeling something inside of her but did not know what it was. She was frantic, scared and upset. M.Y. would not describe C.G. as angry, she was afraid and upset as in sad. C.G. was in her bedroom for probably two minutes.

[32] M.Y. went to look for B.M. and saw him exiting the en suite bathroom into her parents' bedroom. They are two separate doorways to this bathroom, one from the bedroom and one from the hallway. It is the only bathroom upstairs. Exhibit 1 is a diagram drawn by M.Y. of the upstairs of her residence.

[33] M.Y. said to B.M., "What are you doing?" and "That's my best friend, how could you do that." M.Y. testified she just wanted to get him out of her house. She was shocked. She was yelling for him to get the fuck out of the house. She went with him downstairs to the laundry room side door and she repeated "Get out" over and over.

[34] B.M. was calling her, "C.G." and he started to get emotional. He was tearing up and saying, "I'm sorry C.G. I'm sorry." M.Y. was saying to him, "I'm not C.G., why are you calling me C.G."

[35] B.M. did not have a shirt on but she believed her was wearing black shorts. These were the shorts he was wearing when he went to bed. She cannot recall for sure what he had on the bottom. M.Y. did not know what time it was, she believed it was eight or nine o'clock.

[36] As B.M. was leaving he was saying to her, "Where's my shirt?" and she told him, "I don't know where your shirt is." M.Y. went upstairs and grabbed one of her work shirts and threw it outside and locked the door. She walked by the kitchen and saw his shirt and jacket on a kitchen chair so she grabbed them and threw them outside to him. B.M. was on the phone, his cell phone. M.Y. testified it sounded as if he was speaking to a car service and giving her address.

[37] M.Y. testified that B.M. seemed to be just as much intoxicated, if not more. When she looked into his eyes she testified, "I didn't feel like – I didn't know – I don't think he – I don't know how to explain it. He was for sure intoxicated in the morning."

[38] She saw him pacing back and forth by his truck and staggering. He was not walking in a straight line. He appeared to be having a hard time walking, staggering, leaning as he walked she believed, which she attributed to his still being highly intoxicated. The police arrived very quickly, maybe ten minutes after the 911 call. M.Y. described her and C.G. being upset in a sad way seeing B.M. being handcuffed on the street.

[39] C.G. went to the hospital and M.Y. went to the police station to provide a video statement. M.Y. testified there were other occasions that B.M. would drink alcohol to the point of passing out, not remembering things that had happened or were said or how he got to bed. This happened five to seven times during the time they dated. On these occasions he was as intoxicated as the night of the incident. M.Y. described it had something to do with the "way his eyes looked – when he was in that state." They had talked about his drinking previously. M.Y. described B.M. as "very, very intoxicated" on the night of the incident.

[40] There was a previous incident where they were at his house with some friends and B.M. began taking his clothes off on a couch. She could not remember if he was asleep or not at the time. He was laying down on the couch and began to take his pants off. There were people around and he was stripping to nothing. M.Y. could not say whether he was asleep or not. There had been alcohol involved. On that evening B.M. could not really "gather his words" – "like if [she] asked him a question it didn't seem as if he understood what [she] was saying," and "he didn't seem coherent with what was going on." This incident happened within the same year.

[41] There were many times she stayed at B.M.'s house in his room and a number of times he stayed at her house in her room. She was aware that he got up in the middle of the night to use the washroom or to get something to eat.

[42] M.Y. described another incident where B.M. touched someone without their consent, similar to what happened with C.G. It was about a year before this incident. It happened at B.M.'s house. M.Y., B.M., C.G. and a former friend of M.Y.'s, E.G. M.Y. could not describe exactly how B.M. was that night. He was tired and went to bed and the three young women were still awake. She and C.G. slept on a couch on the main floor and E.G. was sleeping in the spare room.

[43] During the course of the evening when they were in the kitchen, E.G. had removed her top, she had on a bra and she put on a housecoat she brought with her. M.Y. felt she was being flirtatious with B.M. The three women went to bed and the next thing M.Y. remembered was being awakened by E.G. who told her she had been awakened by B.M. touching her inappropriately. E.G. was crying and was very upset. The three women left the house without M.Y. speaking to B.M. She spoke to him later about what E.G. said had occurred and he denied anything happened, he did not remember doing anything with E.G. or going into her room. M.Y. and C.G. accepted what B.M. told them.

[44] M.Y. described B.M. as a regular user of marihuana, daily having a joint or a puff – not a huge amount. She did not remember him smoking marihuana on the night in question.

[45] C.G. was involved in a long term relationship at the time. B.M. knew this. B.M. never showed any romantic interest in C.G. He never made any inappropriate advances towards her. B.M. knew C.G. before he knew M.Y. He was good friends with C.G. She was introduced to B.M. by C.G. and they hit it off and began dating. This incident was an absolute shock to her. Both she and C.G. were absolutely shocked by B.M.'s behaviour.

[46] M.Y. was never aware that B.M. had a catastrophic brain injury in a car accident in 2006. He never talked to her about this. She agreed B.M. talks rather slowly. One would describe his speech as slow and deliberate. B.M. never told her he had been in a coma after the car accident.

[47] When she went to the police station she was not intoxicated, the alcohol had worn off by then. M.Y. believed she had six beers. She did not recall having any shots that night, which was inconsistent with C.G.'s evidence. In cross-examination M.Y. agreed it was possible she had some shots during the evening, particularly when she was told C.G. told the nurse at the hospital she and M.Y. had two Jager shots. M.Y. did not recall drinking any vodka at C.G.'s house.

[48] M.Y. agreed the police officer questioning her was interested in B.M.'s level of intoxication. The following questions and answers are contained in M.Y.'s police statement:

Q. Would you say he was that drunk last night?

A. Yeah, he was – I – I guess, I didn't think he was that drunk. Like we were just all sitting around the table playing cards. We were all talking, went out for a smoke.

Q. So he seemed fine before you went to bed?

A. Yeah. Like we were all, you know, not 100 percent sober, obviously, but he – yeah, he was fine. He was just…

Q. He wasn't staggering down?

A. Well, we were just, when we did get up, no he wasn't.

Q. No, okay. So you've seen him drunker is basically what you're saying.

A. Yeah.

Q. Yeah, okay. So that night would have been one of – it wouldn't have been one of those worst nights that you've seen him have in the past?

A. Not the worst.

Q. Yeah.

A. He was – he was definitely drunk for sure. He was definitely drunk.

Q. But he could get up and go out and have a cigarette?

A. Yeah

Q. And open the door and…

A. Yeah.

Q. Yeah.

A. He had those basic skills still.

Q. Yeah, yeah. It wasn't like he needed assistance or anything to go out there and have a cigarette or anything?

A. No.

Q. Okay.

A. Just when I was pulling his pants back up for him.

Q. Yeah, okay. Um, but then he could still walk on his own, right?

A. Yeah.

[49] M.Y. agreed those were her answers to the officer and they were accurate. She testified when she was pulling his pants back up, she noticed more of an intoxication from him. She agreed he had not consumed anything after sitting at the kitchen table.

[50] M.Y. agreed she had told B.M. in the past he should stay away from hard liquor. She did not know if he had any Jager shots that evening. She knew a smaller amount of hard liquor seemed to affect him more than someone else. Sometimes he would do things that would make him seem drunk even though he had not had very much to drink. When he was in that state he would have a different look in his eyes. There were times he would not drink very much and she would not expect there to be a problem and then he would do some odd things with that different look in his eyes.

[51] She did not know if this was one of those times because she did not know what he had to drink. She agreed this could have been one of those times he did not drink very much and was consistent with what she had seen previously.

[52] When she was helping him go upstairs he was walking on his own. He was not staggering, he was putting one foot in front of the other. She did not know if he was asleep, to her knowledge he was awake.

[53] M.Y. agreed that B.M. had nothing alcoholic to drink prior to picking her and C.G. up to go to the Tartan Bar. He had his first drink at the Tartan. B.M. was always very responsible in terms of not driving when he had been drinking alcohol.

[54] When M.Y. testified B.M. had four beers at the kitchen table this was an estimate, it could have been less.

[55] On this evening after C.G. had gone to bed, B.M. lay down on the couch and took his pants off. He had done this at his own house. He had that look in his eye. M.Y. testified she did not realize how drunk he was until the couch. On the prior occasion when he lay on the couch at his house and took off his pants she could not say he was overly intoxicated. It could be one of those occasions where he was showing effects even though he had not had much to drink.

[56] M.Y. agreed she had come to the conclusion since this incident the only explanation for why he would do that to C.G. was he was drunk. Looking back on this incident she thought perhaps alcohol had something to do with it because the other things she had observed with B.M. that she found to be totally out of character had involved alcohol.

[57] M.Y. recalled an occasion where she told B.M. he got up in the night and had urinated on a futon, He told her that he had no recollection of doing it.

[58] When C.G. came into her bedroom she was wearing the same clothes from the night before. She told M.Y. she thought something had been inserted into her butt but she did not know if it was a part of the body or something else. C.G. apologized to M.Y. because she felt bad for her. M.Y. believed her.

[59] She went into her brother's room first because she was half asleep and then she went into her parents' room through the hallway door. She saw B.M. coming into the bedroom from the en suite bathroom. When she first saw him he did not have a shirt on and she was unsure as to whether he had on his black shorts or his boxers but when she was getting him out of the house she did not have to find his shorts.

[60] She was upset and hurt after C.G. told her what happened. She just wanted him out of the house. She did not ask him any questions. She remembered saying, "That's my best friend. How could you do that?" B.M. was saying to her, "What do you mean C.G.? What are you talking about C.G.?" He was looking her right in the eye when he said these things. She told the police "Like he looked totally out of it." She asked him, "What's wrong with you?" This was because he was looking her in the eye, calling her C.G. and looking completely out of it. There was something definitely weird going on. B.M. kept saying sorry to her several times after she had told him to get the fuck out of her house.

[61] At some point B.M. started to cry, she saw his eyes tearing. He was not acknowledging what he had done even though he was saying sorry because he kept saying he did not know what she was talking about. It did not make sense to her.

[62] There was an earlier incident involving E.G. They were staying at B.M.'s house. E.G. woke up M.Y. and C.G. who were sleeping on a couch on the main floor. She told them she was awakened by B.M. touching her buttocks area and her front. They did not believe her at the time. This incident did not make sense to them. Why would B.M. do something like this. M.Y. cannot say B.M. was overly intoxicated on this night. He told them he had no memory of doing anything like E.G. said.

[63] It was M.Y.'s evidence that on the night of the incident involving E.G., B.M. was really tired because he went to bed before anyone else. M.Y. agreed B.M. had worked all day on July 8 and was very tired.

[64] When she and B.M. went to bed on July 8, she was tired and fell right asleep. B.M. was lying next to her and she assumed he went to sleep right away as well.

[65] In re-examination M.Y. testified B.M. was walking up the stairs on his own, she really only held his arm gently. She felt like he really did not know what he was doing.

Evidence of P.C. Scott Mitchell

[66] P.C. Mitchell received call from dispatch at 6:26 a.m. respecting a sexual assault call and arrived at 729 Greenbriar at 6:31 a.m. He parked behind a black pickup truck. He observed a male lying down in the backseat. When he knocked on the window he exited the truck through the passenger side front door. When he came outside the alarm on the truck started going off. The individual grabbed the keys off the passenger side rear tire and turned off the alarm.

[67] The officer could smell the odour of alcohol on the person's breath. His speech was slow and deliberate and he had glossy eyes. He detained this person for investigative detention. P.C. Richardson, who was a sexual assault officer advised there were reasonable and probable grounds to arrest this person for sexual assault. P.C. Mitchell read him his right to counsel and cautioned him. He then transported him to 17 Division. They arrived at the station at 6:49 a.m. The individual had identified himself verbally as B.M.

[68] B.M. was paraded before the booking sergeant and placed in a cell. P.C. Mitchell made no other observations and this concluded his involvement with B.M. When the individual got out of the car he went to the back passenger tire to retrieve the keys and he was a little unsteady on his feet.

[69] P.C. Mitchell testified someone who puts their keys on a tire is attempting not to be in care or control. P.C. Mitchell testified he would not have allowed B.M. to drive a vehicle. He thought he was impaired and intoxicated.

[70] In cross-examination P.C. Mitchell conceded when he knocked on the window he had no trouble arousing B.M. B.M. had no difficulty exiting the truck. When alarm went off he went immediately to rear passenger tire and retrieved the keys and turned off the alarm. The officer conceded B.M. had put the keys in a specific spot and had no difficulty retrieving them or turning off the alarm. B.M. told the officer he had no intention of driving.

[71] B.M.'s speech was not slurred. P.C. Mitchell agreed he would not know if B.M.'s speech was normally slow and deliberate. B.M. was co-operative with the officer. P.C. Mitchell agreed B.M. was not seriously unsteady on his feet. He completely understood right to counsel and caution.

[72] The booking video, Exhibit 4, was played in court. B.M. speaks slowly and deliberately throughout. His responses to questions asked by the sergeant were appropriate, responsive and indicated an understanding of the questions asked. B.M. appeared to be crying when asked for his father's phone number and he was told he would be held for a bail hearing.

[73] It was my view after hearing the evidence of P.C. Mitchell and watching the booking video that B.M. was not showing any of the usual signs of impairment. His speech pattern is always slow and deliberate, both on the booking video and the day and a half he testified on the trial. He was not unsteady on his feet during the booking video at all. In my view there was nothing in the officer's evidence or what I observed from the booking video that would supported the officer's opinion B.M. was impaired or intoxicated.

Evidence of Kimberley Sharpe

[74] Kimberley Sharpe is a Forensic Biologist at the Centre of Forensic Science and she testified as to the results of DNA testing of C.G.'s underwear with DNA known to come from B.M. B.M. had provided on consent samples of his DNA, see Exhibit 9.

[75] There were two contributors of DNA to the back of the underwear, Profile 1 (male) and DNA assumed to come from C.G. There was no DNA profile suitable for comparison on the front of the underwear. B.M. cannot be excluded as the source of Profile 1 (1 in 1.1 quadrillion), which was taken from an area on the back of the underwear. Ms. Sawyer was unable to say whether the DNA was on the outside of the underwear or the inside of the underwear. Exhibit 8 is a photograph of C.G.'s underwear seized by police. A further Profile 2 (male) was collected from an external genitalia swab taken from C.G. at the hospital. Ms. Sharpe testified B.M. could not be excluded as the source of Profile 2 (likelihood of the DNA results is 779 times greater if B.M. is the contributor). However, Ms. Sawyer cannot say where the DNA first came from, either on the underwear or on the genital swab because of the possibility of it being transferred. Further, it was not known exactly where swab was taken by the nurse, if it was taken closer to rectal area it would have been closer to the DNA found on the back of the underwear. Ms. Sawyer testified DNA is not specific to bodily fluid, all she can say is it came from some type of cellular material.

[76] As I indicated at the outset of my reasons, B.M. is not disputing he came into contact with C.G.'s buttocks. The DNA evidence in my view confirms that B.M. did come into contact with C.G.'s buttocks as she described given his DNA cannot be excluded.

Evidence of B.M.

[77] In July 2016, B.M. was 28 years old. He grew up in […] and has an older sister and two younger brothers. When he was 10 his parents separated. He currently owns his own house in […]. He was doing an apprenticeship for elevator technician and also attended school for this. He completed his second year and was writing his final exam on June 15, 2017. He is not married. He does not have a criminal record.

[78] After high school he had planned to take a three course in electrical mechanical at Durham College but this changed. Just after completing high school he was driving his car and another car turned left in front of him, which resulted in a serious accident where he suffered a severe, catastrophic head injury. He was taken to Oshawa Hospital and then taken to St. Mike's Hospital in Toronto. He was in a coma for a week and then was put into a medically induced coma for a second week. He spent 12 weeks in hospital.

[79] After the accident he was unable to swallow, eat or talk. His skull was fractured, he had a severe, severe brain injury. His shoulder, collarbone and jaw were also broken. He ultimately was transferred to Toronto Rehab and that was where he relearned how to walk and talk. His speech therapy continued for many years after his release from hospital.

[80] He changed his plans for school and decided to take a fitness and health two-year program at Durham College. He had developed a learning disability from the accident and he was provided a support worker, who attended class with him and the two year course took him four years to complete because of his reduced course load.

[81] He knew C.G. first and met her through work and school in 2014. He met M.Y. through C.G. His relationship with both women was very good and they spent a lot of time together. He knew C.G.'s boyfriend and they were friends. B.M. testified he never had any interest in C.G. romantically.

[82] On March 20, 2015, a Friday night, there was an incident involving another woman, E.G. It was E.G.'s birthday. She was a friend of M.Y.'s and C.G.'s. They were together all night. They had gone out and returned to his house. B.M. described the evening as a good night. Everyone stayed at his house. When he woke up in the morning, some flowers he had bought for M.Y. were all torn up. He called M.Y. immediately and she told him E.G. had told them something had happened, that B.M. had violated her personal space. He had no recollection of doing anything to E.G. B.M. testified he had no recollection whatsoever of pulling E.G.'s pants down and inappropriately touching E.G. by rubbing her buttocks while she was sleeping. B.M. testified he would never do something like that and he thought it was untrue and E.G. made it up. He talked to M.Y. about this and she accepted what he said.

[83] As time went on B.M. began to experience problems with his sleep and feeling fatigued. On February 18, 2016, he was involved in a sleep study with Dr. Buttoo. The report was marked as Exhibit 9. The report reflected that B.M. was complaining of fatigue and migraines occurring after his head injury. B.M. described experiencing extreme levels of fatigue and when he would get migraines his vision would be distorted. He saw a number of doctors concerning these issues until he was referred to Dr. Buttoo.

[84] As a result of the sleep study he was diagnosed with sleep apnea. Prior to this he had never been diagnosed with sleep apnea. He now uses a C-PAP machine every night. He did not obtain his C-PAP machine until November 2016, which was after this night with M.Y. and C.G. He uses this machine every night and he brings it with him if he is staying somewhere other than his house.

[85] B.M. works for […] currently and worked with them back in 2016 as well. July 8, 2016, was a Friday. He got up at his usual time, 5:20 or 5:30 a.m. He worked in Toronto and his work day started at 7 a.m. He worked a full day. He met up with M.Y. after work, they went shopping at the mall together. After this M.Y. was meeting up with C.G. He drove her to C.G.'s. M.Y. had a six-pack of beer and a 26 oz bottle of vodka that she brought into C.G.'s house. He went to visit with his mom who lives fairly close to his house. He was feeling very tired, his eyes were feeling heavy and he was sitting on a couch at his mom's relaxing but he did not fall asleep.

[86] He had spoken to M.Y. by phone and she and C.G. wanted to go out and play pool or dancing and he said he wouldn't mind going too, so he picked them up at C.G.'s house. He thought he got there around 10 and he called and told them he was there and they came outside, got in his vehicle and he drove to the Tartan Tavern. B.M. testified he had nothing to drink prior to getting to C.G.'s house. When they arrived at the bar it was close to 11 p.m. and they each ordered a beer. M.Y. and C.G. stayed in the back room dancing and B.M. stayed mainly in the front of the bar as he is not a good dancer.

[87] He believed he had a couple of pints of beer, probably four pints of beer. At that time he usually drank Canadian or Bud Light. He recalled having a Jager shot with M.Y. and C.G., with a half can of an energy drink, Red Bull. When he spoke to Dr. Buttoo about what he had to drink he believed he wavered on the high side, he believed he had three or four but could he have had five – yes that was possible. He did not think he had two Jager shots but could he have had two – he didn't think so but he could have. So he wavered on the high side again.

[88] He testified he was slightly feeling the effects of alcohol and he would not drive in those circumstances. When they left the bar he called "Keys to Us" and they were not able to come for 30 to 40 minutes, which was quite a long time. They saw another service drive up and they were able to drive his vehicle to M.Y.'s house. They left the bar close to last call, 1:50 to 2:00 a.m.

[89] When they got to M.Y.'s they sat at the table and played cards. They all had a beer together and then he had a second one. B.M. testified he was feeling a buzz but did not think he was very intoxicated. His level of tiredness was very high. It came to a point he just had to lie down. He remembered saying to M.Y. and C.G. while they were sitting at the table he was really exhausted and had to lay down. He went to the couch and fell asleep relatively quickly. The next thing he recalled was being shoved out the side door. He remembered being yelled at and then shoved out the door. He did not know why this happened. B.M. did not dispute what C.G. said happened but he did not remember it.

[90] He had absolutely no memory of touching C.G. and that was something he would never do to anyone. He had no intention of touching C.G. in any way that night. He knew he was not welcome at M.Y.'s when he was thrown out. He had his phone so tried to call someone to pick him up but he had no luck. It is possible he mentioned the address of M.Y.'s house as she said.

[91] He decided to get into his truck to sleep and try to call for a ride again later. He put his keys on top of the rear passenger tire because he learned you cannot have your keys with you if you are in your vehicle waiting for a ride and you have been drinking. He locked the doors and it is more difficult to get out the back door if they are locked. This was why he climbed through to the front passenger side door to exit his vehicle when the officer woke him up. He opened the door by pushing the power button on the front door but the alarm still went off, so he had to retrieve the keys and push the unlock button to turn off the alarm, which he did with no difficulty.

[92] B.M. agreed on the booking video he got choked up part way through and began to cry. He did not feel intoxicated at all when he was at the police station. Since the charge was laid it has been difficult for him. He's lost his girlfriend and a very close friend. He has continued to get treatment for sleep issues. He uses the CPAP machine every night.

[93] He has been seeing Dr. Buttoo for quite some time but before he first went to see Dr. Buttoo he saw his neurologist, Dr. Ouchtrelony, from his stay at Toronto Rehab. He approached her about concerns he had that his head injury was getting worse and told her about the problems he was having with fatigue and migraines. She was the one who suggested he go and get a sleep study as she was concerned that maybe he had some sort of sleep problem. At that point B.M. was not aware of sleepwalking or getting up in the middle of the night and not being awake. He has now become aware there is a family history and at some point he told Dr. Buttoo about his charge. He thought Dr. Buttoo would be able to provide him with some insight into why he didn't have any recollection about what happened and be able to provide the answer for why he didn't remember anything.

[94] B.M. testified he began to think about what had really happened in the incident with E.G. He has now come to the conclusion that something may have happened.

[95] B.M. was aware of the incident where he peed on a futon at his house. He described how M.Y. had told him he had got up in the middle of the night and gone into the spare room and peed on the futon, she had led him back to bed and in the morning when she questioned him about what had occurred he had no memory of doing it. He went to the spare room and saw he had peed on the futon as there was a big stain.

[96] B.M. testified he was asked if he would provide a DNA sample to the police and he voluntarily provided it. The consent form identified by B.M. was marked as Exhibit 10.

[97] B.M. has undertaken a number of steps in his life to prevent a further incident from happening in the future. He now schedules his sleep, does not overdo things by becoming fatigued and has a proper sleep hygiene. He uses his C-PAP treatment on a nightly basis. He bought a door alarm for his bedroom door. If someone is staying in his house he advises them he has a history of sleepwalking and he has the alarm that he tells them about. He has not consumed alcohol since July 9, 2016. He does not drink stimulant drinks, like energy drinks. He has regular appointments with his therapist to assist him in preventing stress. He works out on a regular basis. He had quit smoking from January until May 2017 but had started smoking a bit before the start of the trial.

[98] In cross-examination B.M. agreed there were a few times in the past where he had consumed too much alcohol. He agreed he had blackouts from consuming alcohol. He agreed there were evenings in the past where he drank beer and shots. He agreed he smoked marihuana and he has smoked marihuana daily when he was dating M.Y. He holds a medical card to legally possess and smoke marihuana. He agreed he has consumed 12 beers and a couple of shots in a weekend. There were times he had become intoxicated in C.G.'s presence. It is possible C.G. was with him when his speech was slurred. He agreed there were occasions he drank beer and had shots on the same night.

[99] On the night of the incident involving E.G. he did not recall exactly what amount of alcohol he consumed. They had drinks at his house and then they went to the Tap in Whitby. B.M. testified he drank moderately all night. He was not over-intoxicated in any way. B.M. said if he was drinking alcohol of any amount he did not drive and would call a service.

[100] On July 8 to July 9, B.M. testified he believed he consumed four pints of beer. He indicated there was a possibility of his drinking five pints but six – absolutely not. He told Dr. Buttoo he had two shots of Jager. He has a clear recollection of doing one shot but again he wavered on the higher side because he was not trying to tell the Court he had less than he did but he was sure when he was testifying he only had one shot. He knew Dr. Buttoo was asking questions about his consumption that night for his report. He agreed it could have been two. He had two more bottles of beer back at the house. He spent some of his time alone in the bar and some of it with M.Y. and C.G. They all went outside for a cigarette. They would not be able to say exactly how much B.M. had to drink because they were not together for the entire time at the bar.

[101] B.M. testified he went to the bar after being charged and spoke to the bartender, J.S., because he was very confused with being accused of such a thing, which was something he would never do. She did not recall serving me very much that night but that was all she could say. She had served a lot of people and it was a week later when he spoke to her. She could not locate a bill for him because he paid in cash.

[102] He did not agree what he did to C.G. had anything to do with his consumption of alcohol. He did not agree his lack of memory was because of the amount of alcohol he drank. It was B.M.'s position, "100% not a chance on this night that alcohol affected my memory in any way." He agreed he was extremely tired that night. He did not know if he would agree with the Crown's suggestion if you are tired and drink a lot of alcohol that the alcohol and fatigue combined could affect his level of impairment. He agreed when he was at his mother's house he was very tired and could have had a nap.

[103] B.M. said he got up from the table and went and lay down on the couch. He was wearing his boxers, shorts and socks. He had taken off his t-shirt earlier and put it on the back of the chair he was sitting in because of the heat.

[104] He agreed there was a conversation where M.Y. told C.G. she could sleep in her parents' bedroom. B.M. believed he had slept over at M.Y.'s house seven to ten times. They mostly stayed together at his house. He had always slept in M.Y.'s bedroom when he stayed over at her parents' house.

[105] When he lay down on the couch he was tired and there was a slight effect from alcohol he had consumed. He did not agree with the Crown he was "pretty intoxicated." He did not recall M.Y. putting on his boxers and pants as he would have been asleep at that point. He does not dispute being completely naked because he does not remember. He believed going up the stairs he was asleep or if M.Y. got him up the stairs he was asleep again very quickly. He did not recall being unsteady going up the stairs.

[106] He did not deny going to bed in M.Y.'s room. He does not recall getting out of bed at 6 a.m. on July 9, 2016. He has zero recollection of going to the bedroom C.G. was sleeping in. He did not recall using the washroom. There was never a reason for him to be in her parents' bedroom. He did not recall C.G. wearing yoga pants on this night. He did not remember pulling down her yoga pants and underwear and penetrating her anus. This was something he would never do. He had no memory of C.G. turning around and saying to him, "What are you doing?" He had no memory of getting on the bed and pulling down the blankets. He was not disputing he did these things. These are things he absolutely would not do. He did not believe alcohol would cause him to do these things.

[107] B.M. testified since this incident he has learned that alcohol can play a role in confusional arousal, it can affect your sleep. He did not believe alcohol alone could play any part in this. Alcohol can be one of the factors that can contribute to confusional arousals happening. It might have caused a confusional arousal. There had been times in the past where he had drunk too much and it affected his memory but that did not happen of this occasion.

[108] He remembered being shoved out of the house and the door closing behind him. Then he remembered being outside and trying to get a ride. He remembered people being upset and flustered, that is what he meant by a commotion. He remembered M.Y. being there but did not know where C.G. was. He was very upset and confused by what was happening.

[109] When he lay down on the couch he had his boxers and shorts on. When he was pushed out the door he had on his boxers and shorts. He did not recall asking for his shirt when he was being pushed out the door. He could not remember any words being spoken when he was being pushed out the door.

[110] He called the DD service but nobody answered and he called a cab company and provided M.Y.'s address. He had these numbers programed into his phone. He smoked a cigarette by his truck. He was inside his truck very soon after he finished the cigarette.

[111] B.M. did not knock on the door and ask M.Y., "What's going on?" or "What did I do?" It was upsetting but he did not try to talk to her.

[112] He would not have driven. He had no idea of what his blood alcohol level would have been at that point. He did not know the police were on their way. He was still feeling the effects of alcohol. He knew he had some beers and a shot the night before and there had not been enough time for the blood alcohol to be completely out of your system. He did not dispute he would have had the smell of alcohol on his breath. When the officer knocked on the window he had no trouble hearing it and getting up. Mr. Mitchell went out the front passenger door because the doors were locked with the clicker, which was on the rear passenger tire, so an alarm would sound if he tried to go out the back door. It still went off when he went out the front passenger door but he immediately got the clicker and turned the alarm off.

[113] B.M. did not dispute what E.G. said happened about a year before. He had consumed alcohol on that occasion. E.G. was a friend of M.Y.'s, he had not met her before. E.G. was being a bit flirty towards him and at one point she had taken off her shirt and was sitting there with just her bra on. There was no planned sleeping arrangements. When he woke up in the morning he found the flowers he had given to M.Y. were all torn up. M.Y., C.G. and E.G. were all gone from the house. He called M.Y. and she told him she had been wakened by E.G. and C.G. E.G. was upset and said something had happened involving him. He learned E.G. had accused him of coming into her room at night while she was sleeping and pulled down her pajama pants and rubbing her bum area. He found this out on Saturday morning when he called M.Y. He told M.Y. this was not something he would do. He told her that he did not do that to E.G. He never occurred to him that he might have done it but could not recall.

[114] At some point the police contacted him but he could not recall the date. He was aware of E.G.'s allegation when the police contacted him. He was aware after speaking to the police that E.G. did not want to proceed with charges. He never called E.G. to ask her why she would accuse him of doing this because he and M.Y. decided this was not something he would have done, it was not who he was.

[115] He testified he is learning more about confusional arousal and as a result, he has learning it was possible it happened. He was not disputing now that it may have happened. He had no memory of touching E.G. in an inappropriate way.

[116] He agreed at the time of E.G.'s allegation he was a regular user of marihuana. He was also a regular user of marihuana at the time of the incident involving C.G. On the night they went to the Tartan Tavern he had not used any marihuana. He never used marihuana during the day time.

[117] After the incident involving C.G., B.M. stopping drinking alcohol. This was his decision and it was also a condition of his bail. B.M. testified the court can tell you not to consume alcohol but he had to make his own decision not to consume alcohol because it would be easy to ignore the court order if he did not make this decision for himself as well.

[118] He did not remember the date of the urinating incident on the futon. Only he and M.Y. were in his house. He only recalled M.Y. telling him that he peed on the futon during the night. He did not recall if he had consumed alcohol or not before or if it was a week night or a weekend. M.Y. asked him if he remembered doing it and he told her he did not. The next morning it was still wet and there was a big stain.

[119] B.M. testified he did not have any attraction towards C.G. She did not have a romantic interest in him – they were very close friends.

Evidence of Dr. Kenneth Buttoo

[120] Dr. Kenneth Buttoo was called by the defence as an expert witness. At the conclusion of a voir dire to determine whether he could be qualified as an expert pursuant to the four part threshold test for admissibility in R. v. Mohan, [1994] 2 S.C.R. 9, the Crown conceded his expertise in sleep and sleep disorders and abandoned her challenge to the admissibility of his evidence.

[121] Dr. Buttoo's CV was filed as part of Dr. Buttoo's Report, Exhibit 11. After completing his medical degree at Manchester University in 1976, Dr. Buttoo worked and trained in a number of hospitals in Manchester from 1976 to 1978 when he moved to Canada to continue his post-doctoral training. His post-graduate training is in the areas of Internal Medicine, Clinical Immunology Allergy, Critical Care Medicine and Sleep. He is a Fellow of the Royal College of Physicians and Surgeons, 1982; a Fellow of the Royal Canadian College of Physicians and Surgeons of Canada, Clinical Immunology and Allergy, 1984; a member of the American Board of Internal Medicine, 1997; a member of the American Board of Sleep Medicine, 1997 and a member of the American Board of Critical Care Medicine, 1999. From 1993 until the present, 25 years, he has been the Director of the Centre for Sleep Disorders in Pickering and Bomanville, Ontario.

[122] B.M. was referred to Dr. Buttoo in early 2016 because of sleep difficulties he was experiencing, namely, insomnia, difficulty sleeping, maintaining sleeping and the possibility of sleep apnea. A sleep study was conducted in February 2016 and Dr. Buttoo saw him in consultation in April 2016 and then treatment was instigated where B.M. returned for a further sleep study, with a C-PAP machine and mask to determine what pressures were needed to keep his air passageways open when he was experiencing sleep apnea. This sleep study was conducted in May 2016 and B.M. purchased a C-PAP machine in November 2016.

[123] Dr. Buttoo described generally confusional arousals or parasomnias, such as sexsomnias and sleepwalking behaviours. Confusional arousal usually occur in non-REM sleep, in the N3 deep sleep phase. There are predisposing factors, which include family history of parasomnias, previous incidents of confusional arousals or whether the individual had suffered a serious head injury. A head injury often is related to post-traumatic migraines, which can cause sleep disorders and this includes sleep breathing disorders, nightmares, sleep talking and sleepwalking. This was followed by examining the individual's history to determine priming factors, such as alcohol, caffeinated products, a sleep disorder, such as sleep apnea. Sleep apnea is made worse by the consumption of alcohol or stress or smoking. Dr. Buttoo testified there then needed to be a trigger, which triggers the parasomnia or confusional arousal episode. Triggers include things such as a touch, a noise, someone turning over in bed, stress, an undiagnosed sleep apnea disorder, an urge to urinate because of a full bladder or sleep apnea, all could trigger a parasomnia. If the predisposing factors are there and there are other priming factors, then the stress does not necessarily have to be extreme. One must look at the whole picture. It is difficult to determine what a specific trigger was in a certain case. Further, there is no scientific research to show just how sleep sex or sexomnia is triggered.

[124] The prevalence of sleepwalking disorder in the general adult population is extremely low, one to four percent. It is much higher in children than in adults. A brain injury, such as occurred with B.M., is one of the causes, a predisposing factor, in adults for sleepwalking. The majority of sleepwalking episodes are very short in duration, from a couple of minutes to up to ten to fifteen minutes and have been known to last up to a half hour but this is rare. Sleepwalking episodes can occur in the bedroom but can occur outside the bedroom. The sleep partner of an individual does not have to provide evidence of parasomnia behaviour. A person's sleep partner may be experiencing their partner engaging in inappropriate touching during the night but this is not required. A sleepwalking individual does not seek out the person they are going to touch. A criteria of sleepwalking is that there is ambulation during sleep. The individual is able to walk and there is difficulty in awakening the person. There is complete or partial amnesia of the conduct or behaviour engaged in by the person sleepwalking. Persons who are sleepwalking can perform complex behaviours and the person can appear to interact with others yet still be asleep.

[125] Prior to the commencement of B.M.'s trial, Dr. Buttoo was provided with the Crown disclosure, including the witness statements of M.Y. and C.G. and the various police officers involved in the investigation, which he reviewed. He was also provided with medical reports relating to B.M.'s catastrophic head and brain injury caused by his car accident in 2006, as well as follow up reports of doctors and specialist who addressed B.M.'s continuing difficulties respecting sleep issues, depression and anxiety and neurological issues arising from his head injury.

[126] Dr. Buttoo generated a report dated May 2, 2017, Exhibit 11, in which he concluded that – due to several factors including: a family history of sleepwalking where his brother had a history of sleepwalking or sleep terrors and his mother had a history of sleep eating; B.M. suffered a catastrophic head injury on July 10, 2006; B.M. had continuing difficulties from that event until the incident in terms of fatigue, migraines, sleep problems and anxiety and depression leading to sleep deprivation; B.M. had prior episodes of most likely sleepwalking, one similar to incident in question involving E.G. and another involving his urinating on a futon while asleep; a diagnosis of sleep apnea on April 28, 2016; B.M. had no recollection of the event; the two witnesses, C.G., the victim and M.Y., B.M.'s girlfriend described behaviour and conduct that showed at the time of event and shortly after B.M. was confused; B.M. had no romantic interest in C.G. and both witnesses, who were close good friends described his behaviour as completely out of character; B.M. made no attempt to try and conceal the crime and the use of alcohol and caffeine, which would have exacerbated B.M.'s sleep apnea – on the early morning of July 9, 2016 around 6 a.m. the episode involving B.M. was most likely a confusional arousal, in particular sexsomnia.

[127] Dr. Buttoo also observed B.M.'s evidence in-chief and cross-examination before he testified as an expert witness. It was Dr. Buttoo's repeated position that it was important to look at everything that was going on together, in terms of the predisposing factors, the priming factors and the various triggers that existed, to be able to arrive at an opinion. One cannot look at factors in isolation, it is important to examine the whole of the evidence – see the whole picture.

[128] Dr. Buttoo testified it would be rare for him to see any evidence of confusional arousal or parasomnias during a one night sleep study in his clinic. Dr. Buttoo testified he examined all of the disclosure and the evidence in this case he did not see anything respecting B.M.'s actions that indicated some kind of planning that would be beyond what someone suffering from a confusional arousal might be able to do.

[129] Dr. Buttoo agreed that determining future dangerousness is outside his area of expertise. He agreed sexual assault was a crime of violence. He agreed he was aware of a possible sexual assault allegation from March 2015. He was aware B.M. was still smoking cigarettes despite being diagnosed with sleep apnea. As of March 2017 he was still complaining of fatigue to Dr. O'Brien. Dr. Buttoo testified if one looked at all the factors and if they were eliminated then there was a low probability this would happen again but this was not something within his control. It was only within B.M.'s control. One of the issues was avoiding stress, which was very difficult to do. Dr. Buttoo testified the factors could still be present and there would still be issues with sleepwalking so it was still a very difficult issue.

The Law

[130] In R. v. Stone, [1999] S.C.J. No. 27, at paras. 171 and 180, the Supreme Court held the law presumes an individual's acts are voluntary. This presumption is rebuttable. Therefore, because a claim of automatism amounts to a claim that the conduct of a person charged was not voluntary, the defendant bears the burden of rebutting the presumption of voluntariness on a balance of probabilities (see also R. v. S.H., [2014] O.J. No. 1890 (C.A.) at para. 64).

[131] In a recent case, R. v. Desrosiers, [2017] O.J. No. 2295 (OCJ) at para. 51, Justice Gage summarized the principles to be derived from R. v. Stone, supra, which I adopt:

• 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." (Stone, para. 155)

• In cases involving claims of automatism the burden is on the defence to prove involuntariness on a balance of probabilities. (Stone, para. 179)

• 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. (Stone, paras. 169 and 187)

• 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 dependent on the accuracy and reliability of the account of the events provided by witnesses including the accused. (Stone, para. 186)

• 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. (Stone, para. 189)

• 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. (Stone, para. 190)

• 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. (Stone, para. 191)

• 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. (Stone, para. 192)

• 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. (Stone, paras. 193-199)

[132] A recent decision by Watt J.A. in R. v. S.H., supra, also provided a comprehensive review of the burden and standard of proof where automatism is asserted by the defence, see paras. 60-72. Justice Watt held that the term "burden of proof" is used in two senses in cases of automatism (at para. 65):

The first, often described as the "evidentiary burden", refers to the obligation of a party to adduce evidence sufficient to warrant consideration of an issue by the trier of fact. The second, referred to as the "legal burden" or "persuasive burden", describes the obligation of a party to prove or disprove the fact at issue. Both apply to claims of automatism. As a matter of general principle, the legal burden follows the evidentiary burden. This is so for automatism: Stone, at paras. 173 and 182.

[133] It was agreed by both defence and Crown that in order for the defence to satisfy the evidentiary burden, the defendant must adduce evidence upon the basis of which a properly instructed jury could find, on a balance of probabilities that B.M.'s conduct was involuntary.

[134] As held in R. v. Stone, supra, the next step is for the trier of fact to determine whether the automatism established is mental disorder automatism as opposed to non-mental disorder automatism. In R. v. Luedecke, 2008 ONCA 716, [2008] O.J. No. 4049, Justice Doherty dealt extensively with the question of the determination of non-mental versus mental disorder automatism. Once again, Justice Gage in Desrosiers, supra, at para. 52, provides a helpful summary of the legal principles that can be derived from that decision, which I adopt:

• The distinction between non-mental disorder automatism and mental disorder automatism depends on whether the automatistic state is the product of a "mental disorder". That term is defined in section 2 of the Criminal Code as a "disease of the mind". That phrase describes a legal and not a medical concept. (Luedecke, para. 60)

• Canadian courts have adopted a very broad definition of what will constitute a mental disorder. (Luedecke, para. 62)

• The fundamental question of mixed law and fact which is at the centre of the disease of the mind inquiry is whether society requires protection from the accused and the risk of recurrence is central to that inquiry. (Luedecke, paras. 85 and 86)

• The trial judge begins from the premise that the automatism is caused by a disease of the mind and looks to the evidence to determine whether it convinces him that the condition is not a disease of the mind. (Luedecke, para. 90)

• In evaluating the risk of repetition and hence the danger to the public, trial judges must not limit their inquiry only to the risk of further violence (driving while impaired) while in an automatistic state. The trial judge must examine the risk of recurrence of the factors or events that triggered the accused's automatistic state. (Luedecke, para. 91)

• At the pre-verdict state, social defence concerns dominate. Those concerns focus on the risk posted by the potential recurrence of the conduct in issue. (Luedecke, para. 100)

• A genetic predisposition is the epitome of an internal cause which increases the risk of recurrence. (Luedecke, para. 106)

• The Stone decision directs the trial judge to look to the likelihood of recurrence of the triggering events and not just the likelihood of the recurrence of the criminal acts in issue (here, driving while impaired) while in an automatistic state. (Luedecke, para. 111)

Legal Principles Applied

[135] B.M. testified he had no recollection of any of the events from the time he lay down on M.Y.'s couch around 3 a.m., due to exhaustion, until he was being shoved out the door by M.Y. around 6:20 a.m. He maintained any actions or conduct he engaged in during that time were involuntary and of which he was completely unaware.

Was B.M. Intoxicated on July 9, 2016?

[136] The Crown argued this was a case involving intoxication and not sleepwalking or parasomnias/sexsomnia. She submitted B.M. was an unreliable historian as to how much he had to drink on the evening of July 8, 2016 into the early morning hours of July 9, 2016. She points to the evidence of M.Y. and P.C. Mitchell.

[137] Dealing first with the evidence of P.C. Mitchell, it is my view his evidence was clearly wanting and deficient in providing support for his eventual conclusion or opinion, which the Crown pointed out was "emphatic," that B.M. "would have been intoxicated or impaired at that point," referring to when he arrested him. P.C. Mitchell based this emphatic opinion on the following pieces of evidence, odour of alcohol, B.M. spoke slowly, his eyes were glossy and he noted B.M. was a little unsteady when he retrieved his keys. What was particularly illuminating concerning P.C. Mitchell's evidence was what he noted in his typed report as compared to his evidence in court. During the Crown's cross-examination of Dr. Buttoo she read what P.C. Mitchell had noted in his typed report (not his notebook): "I could detect a strong odour of an alcoholic beverage emanating from B.M.'s breath. He was unsteady on his feet and his words/speech appeared slow. I observed his eyes to be glossy." Dr. Buttoo had this report. What is missing from the typed report and P.C. Mitchell's handwritten police notebook was his "emphatic" opinion that B.M. was intoxicated or impaired. It is my view this omission is significant, especially when one considers all of the actions of B.M. that the officer would have noted but left out when giving his "emphatic" opinion. In addition, although a small point, in his evidence in court he did not describe the odour of alcohol as being strong, it was just an odour of alcohol.

[138] P.C. Mitchell's involvement and interaction with B.M. was very brief. He completely ignored the fact of B.M. being aroused easily when he knocked on the truck's window, he ignored the fact B.M. had no difficulty in moving from the backseat to the front passenger seat or in exiting the truck, he ignored the fact B.M. did not stumble or have difficulty exiting the truck, he ignored B.M.'s immediate response in retrieving his keys from the top of rear passenger tire or in turning off the alarm once he had the keys, he ignored the fact that B.M. clearly understood his right to counsel and caution as well as all of the questions asked by the booking sergeant, he ignored the fact B.M.'s answers were responsive, appropriate and demonstrated he understood the questions being asked, he ignored the fact B.M.'s speech was not slurred and he ignored the fact B.M. was not unsteady on his feet at any other time after retrieving the keys or while he was at the police station. P.C. Mitchell conceded in cross-examination that his observation of B.M. being unsteady was not written in his handwritten police notebook. He testified this was likely because the unsteadiness he observed was only slight.

[139] It is my view P.C. Mitchell would not have had reasonable and probable grounds, subjectively or objectively, to arrest B.M. for the offence of impaired care or control based on his observations. I recognize P.C. Mitchell was responding to a sexual assault allegation, however, if grounds truly existed to arrest B.M. on an impaired charge, the officer would have arrested him for this offence as well, which he did not do. B.M.'s blood/alcohol concentration would have been an important piece of evidence in respect of the sexual assault allegation. In considering the whole of the evidence available to P.C. Mitchell I find his conclusion had no basis in reality and I would not accept his evidence on this issue.

[140] Further, the booking video demonstrated the falsity of P.C. Mitchell's opinion as to B.M.'s level of intoxication. The booking video was very close in time to P.C. Mitchell's first observations of B.M. It was also close in time to B.M. inappropriately touching C.G. B.M. was clearly upset by his circumstances but his speech was not slurred. It was slow and deliberate on the video, which was consistent with his manner of speaking when he testified on this trial for a day and a half. B.M. was asked for a contact number and he had no difficulty remembering his father's cell phone number, which he told the sergeant. B.M. was not unsteady on his feet when he was at the police station on video. It is my view the video demonstrates B.M. was not intoxicated.

[141] The Crown pointed to the evidence of M.Y. respecting evidence of B.M.'s level of intoxication. First, there were inconsistencies between M.Y.'s statement to the police, where she said she did not think B.M. was that drunk and her evidence in-chief, where she maintained B.M. level of intoxication was the same as what she had previously witnessed during their relationship where he had consumed alcohol to excess, passed out and did not remember anything the next day. It is my view M.Y. was attempting to understand and explain for herself why B.M. would touch C.G. in an inappropriate sexual manner, something she viewed as inexplicable. She expressed on a number of occasions how his conduct was incomprehensible and completely out of character. She had great difficulty trying to articulate or explain what happened to C.G. and what she observed of B.M. when she was pushing him out of the house. M.Y. admitted the only explanation that made sense to her was that B.M. was intoxicated. It is my view M.Y. was endeavouring to find an explanation as to why B.M. would do what he did to C.G. and believing he was intoxicated provided that explanation. She did not know of his catastrophic head injury and did not have any understanding of parasomnias.

[142] M.Y. agreed in cross-examination that there had been a number of occasions when B.M. had not had much to drink yet he would appear to be drunk. When he was in that state he had a different look in his eyes. She agreed this incident could have been one of those times, which was consistent with what she had seen before.

[143] Further, M.Y. herself had a similar amount of alcohol to drink on the night in question, although she had no recollection of consuming two Jager Bombs at the Tartan Bar or earlier in the evening consuming some vodka shots at C.G.'s house. She conceded she may have consumed the Jager shots. She testified she was not under the influence of alcohol or feeling its effects in the morning when she spoke to the police. She testified she was clear headed and the effects of the alcohol she had consumed had worn off, she was not intoxicated.

[144] Finally, the Crown pointed to M.Y.'s evidence where she described seeing B.M. walking by his truck and he appeared to be staggering and unsteady on his feet. C.G. was also watching B.M. outside when he was by his truck and she did not observe the unsteadiness or staggering that M.Y. said she observed. It is difficult to reconcile these two observations of the same conduct of B.M. walking beside his truck before he went into the backseat to go to sleep. He was bending down at some point to put his keys on the rear passenger side tire. Whatever observations were made it was not for a lengthy period of time given the police arrived very shortly after the 911 call made.

[145] In contrast, C.G. testified she believed B.M. was fine in terms of his level of sobriety. She did not believe B.M. was intoxicated. When C.G. went to bed on July 9, 2016, she testified B.M. seemed okay to her in terms of his level of intoxication or sobriety, he was not overly intoxicated. She had seen B.M. on previous occasions when he was intoxicated, slurring his words, having a hard time walking and this was not one of those times. C.G. had a similar amount to drink during the evening and early morning as did M.Y. and B.M. and she testified she was not intoxicated and in the morning the effects of the alcohol had worn off.

[146] B.M. testified he was not intoxicated on the evening he was out with M.Y. and C.G. He conceded in cross-examination there had been occasions in the past when he had passed out but this was not one of those occasions. He testified he felt a "buzz" from the alcohol he consumed but he knew what he was doing and it was not similar to those occasions he had passed out.

[147] It was the Crown's position B.M. was suffering from an alcohol-induced blackout from the time he lay down on the couch and removed his pants and boxers, M.Y. helped him put these clothes back on, he went upstairs to bed, got out of bed around 6 a.m., went into the bedroom where C.G. was sleeping, sexually assaulted her, M.Y. confronted him, brought him downstairs to get him to leave, displayed confusion with M.Y., called her C.G., did not understand what had happened and immediately after he was pushed outside he was suddenly no longer in an alcohol-induced blackout, his confused state was over as demonstrated by his ability to call for a ride, provide M.Y.'s and then lit up a cigarette. Firstly, it is my view the Crown should have called an expert to testify about the symptoms of an alcohol-induced blackout, its typical duration and how much alcohol would be needed to cause this to occur. She did not call any expert evidence. Ms. D'Eri provided portions of the DSM 5 that discussed how alcohol-induced blackouts (the portion was only 5 lines) may be indistinguishable from behaviours seen in N-REM sleep arousal disorders, however, it is my view a qualified expert should have been called to properly explain the interaction and interplay between those two situations. Second, the submission in my view does not accord with common sense as the submission presupposes B.M. was suffering from an alcohol-induced blackout for an extended period of time (from 3 a.m. to 6 a.m.) and as soon as he was outside the house he was no longer involved in the alcohol-induced blackout. The booking video, which was taken only a short time after the incident itself, in my view demonstrated B.M. was not intoxicated as alleged by the Crown at the relevant times and put a lie to P.C. Mitchell's opinion.

[148] It was further the Crown's position during the cross-examination of Dr. Buttoo that "alcohol intoxication is a huge factor in this case" yet despite recognizing that Dr. Buttoo was not a toxicologist the Crown attempted to elicit evidence from him that would more properly have been led through a toxicologist. Further, Ms. D'Eri questioned Dr. Buttoo about the inter-relationship between fatigue and alcohol consumption and whether fatigue could contribute to impairment when someone was drinking. Again, the Crown argued Dr. Buttoo was not qualified as an expert on issues involving an alcohol-induced blackout and the same could be said as to whether fatigue could contribute to impairment when someone was consuming alcohol. If the Crown wanted to address these issues, as I have already held, a toxicologist should have been called by the Crown to address alcohol-induced blackout, level of impairment, intoxication or the absorption and elimination of alcohol in an individual's body and based on consumption what the blood/alcohol concentration for B.M. was and its relationship to his level of impairment. These were not issues a judge would be permitted to take judicial notice of.

[149] On the totality of the evidence on this issue, I find B.M. was not intoxicated to the point of passing out and therefore not remembering events. The Crown knew the importance of this issue for this trial and did not call as an expert witness, a toxicologist from the Centre of Forensic Sciences (CFS), who could have, based on the evidence of B.M., determined his blood/alcohol concentration and provide evidence on the inter-relationship between those percentages and level of impairment. Further, a toxicologist could also have opined what the impact and effects of that blood/alcohol concentration would have been for B.M. in terms of his ability to recall events and the interplay between other factors such as fatigue or tiredness when coupled with alcohol consumption. Finally, a toxicologist would have been able to address the issue of alcohol-induced blackout. As indicated these are issues I do not believe I can take judicial notice of and would need the evidence of a qualified expert to assess the other witness' evidence. In R. v. D.M., 2013 ONCJ 589, [2013] O.J. No. 5232 (OCJ), Harris J. relied upon the evidence of the Crown toxicologist, Dr. Robert Languille, of the CFS, who calculated D.M.'s blood/alcohol concentration based on the evidence, in assessing the reliability of D.M.'s account of the events to the defence expert. Further, the Crown could have called an expert in sleep disorders such as parasomnias and sexsomnia to discuss the issue of intoxication versus automatistic-like dissociative states but again, chose not to.

[150] In the end it is my view, on the whole of the evidence on this issue that B.M. was not intoxicated on July 9, 2016.

[151] A final issue in this area was the Crown's position that a doctor cannot diagnose parasomnia when the individual has been drinking alcohol. This position is in conflict with the factual circumstances of a number of cases: R. v. Hartman, [2015] O.J. No. 3554 (C.A.); R. v. S.H., supra; R. v. Luedecke, supra; R. v. Desrosiers, supra, and R. v. T.W., [2015] O.J. No. 742 (SCJ, Conlan J.). The issue is not whether a diagnosis of a confusional arousal disorder (parasomnia) can be made where an individual has been drinking – it can, rather, disorders of confusional arousal (parasomnia) should not be diagnosed in the presence of alcohol intoxication.

Was there documented history of previous automatistic-like dissociative states?

[152] C.M. provided evidence that there was a history in the M. family of parasomnia episodes. She described how over the years she has been subject to night eating. C.M. testified she has severe sleep apnea and now uses a C-PAP machine nightly. M.Y. gave evidence as to B.M. engaging in night eating behaviours. Further, B.M.'s brother, X.M., suffered from night terrors as a young child to the age of 12. C.M. testified X.M. would get up at night, run around the house, she could not talk to him and finally he would go back to bed and fall asleep. The next day he would have no recollection of what he had done. She took him to a doctor. He eventually outgrew this. When C.M. moved to her mother's house, she described how B.M. was getting up and peeing on the steps while he was asleep. This behaviour also occurred once at the cottage. B.M. would have no recollection of engaging in this behaviour. All of these behaviours were described by Dr. Buttoo as parasomnias.

[153] There was also evidence of other similar incidents that B.M. was involved in. The incident involving B.M. urinating on a futon during the night provides some evidence of a previous episode of parasomnia. M.Y. recalled an incident where she discovered in the morning a futon that someone had urinated on overnight. B.M. had no recollection of engaging in this behaviour. M.Y. knew she had not done this and no one else was in the house overnight. The Crown argued this was not brought to the attention of Dr. Buttoo and was therefore not outlined in his report, however, Dr. Buttoo did refer to this incident in his evidence because he heard about it during B.M.'s testimony. M.Y. testified she did not discuss this in her police statement because she only remembered the incident when Mr. Balka questioned her about it. In my view what is important was that the incident did occur as it was recalled by M.Y. It is another piece of the puzzle as argued by Mr. Balka. By itself it might not be very significant, however, taken as part of all of the incidents described in the evidence, its significance in my view is increased. It also dovetails with C.M.'s evidence of her son peeing on the steps of her mother's house on occasion at her mother's house and once at their cottage.

[154] M.Y. described two incidents, similar in nature, separated by some time, where B.M. complaining of tiredness lay down on a couch, first at his parents' house, and began removing his clothes until he was naked in the presence of a number of friends who were there. B.M. had no memory of his doing this. M.Y. testified B.M. was not intoxicated, although he had consumed some alcohol. M.Y. described how B.M. had a different look in his eyes when he engaged in this behaviour and his eyes were open. She could not remember if he was asleep or not. He did not seem coherent as to what was happening when she spoke to him.

[155] This was similar to July 9, 2016, when B.M. lay down on the couch on the main floor, after C.G. had gone to bed, and began taking his clothes off. M.Y. talked in her evidence about B.M. being very tired when he worked on Fridays because it was the end of the week and it was a full day of work. These two incidents occurred after B.M. had worked a full day on a Friday, at the end of a full week of work. Again, these two incidents occurred and are inexplicable as to why he would engage in this type of behaviour. On the first occasion at his house M.Y. testified he was not overly intoxicated. M.Y. testified when B.M. did this in the early morning hours before the incident it caused her to think she had not realized how drunk he was. She also agreed, as I indicated above, she was attempting to come up with an explanation for why he sexually assaulted C.G. because she did not understand why he would do that.

[156] M.Y. also described a number of occasions when B.M. had shots of liquor and it would seem like he had much more to drink than he actually had. There were occasions where drinking liquor would make him seem more drunk even though he had not had much to drink. He would get a kind of a different look in his eyes.

[157] Both M.Y. and C.G. described an incident where a friend of theirs, E.G., who stayed over at B.M.'s house in the spare room, woke M.Y. and C.G., who were sleeping on a couch on the main floor and alleged B.M. had sexually assaulted her. E.G. told the two women that she had awakened to find B.M. touching her inappropriately. She was crying and very upset. According to M.Y., B.M. had not consumed much alcohol that evening and had gone to bed early because he was so tired. When M.Y. spoke to B.M. about E.G.'s allegation he told her he did not do it, he had no memory of doing anything to E.G. At the time M.Y. and C.G. accepted B.M.'s word he did not do anything to E.G. C.G. testified B.M. seemed okay on this night.

[158] E.G. asked M.Y. and C.G. to leave with her immediately, which they did. They did not speak to B.M. about E.G.'s allegations that night. C.G. testified she never spoke to B.M. about E.G.'s allegation but she knew M.Y. had and she knew B.M.'s response was that nothing happened. As a result, she did not believe E.G. After B.M. had touched her inappropriately C.G. thought back to this earlier incident because it was so similar to what happened to her. In my view it is telling that C.G., M.Y. and B.M. all thought back to the E.G. incident because it was so similar to the incident involving C.G. In Stone, the significance of the similarity between a previous incident and the current incident was commented on by Justice Bastarache, at para. 189, "the more similar the historical pattern of dissociation is with the current claim of automatism, the more persuasive the evidence will be on the issue of involuntariness."

[159] These previous instances of automatistic-like dissociative states as described by the witnesses and referred to by Dr. Buttoo should be given more weight than if the expert was simply confirming that the claim of automatism is plausible. I will discuss in greater detail Dr. Buttoo's evidence later in my reasons but suffice it to say now, a number of witnesses observed behaviour by B.M. consistent with his being in an automatistic-like dissociative state on earlier occasions.

Was there corroborating evidence of bystanders?

[160] Both M.Y., B.M.'s girlfriend, and the complainant, C.G., were present before, during and after the alleged involuntary act. C.G. is awakened by a feeling of a little pressure inside her butt. She was lying on her right side at the edge of the bed. When she turned to look behind her she saw B.M. standing beside the side of the bed she was laying on.

[161] The observations of C.G. concerning B.M.'s actions and his condition – his lack of response to her questioning, looking at her with his eyes open but not responding, when she moved to the other side of the bed pulling the covers over herself he got into the bed and tried to pull the covers off her, the whole time not saying anything, when she left the bedroom B.M. did not follow her or try to stop her – are, as testified to by Dr. Buttoo, supportive of the existence of a dissociative state. C.G. told the police officer in her statement as far as she was aware B.M. was completely unaware of what happened. When the Crown asked what she meant by her answer to the officer, she testified "he just didn't seem like himself, when he was acting like he didn't really know what was going on." It seemed to C.G. B.M. had no idea what M.Y. was talking about when she was telling him to leave the house as he was unaware of what happened.

[162] M.Y.'s evidence was similar to C.G.'s evidence. When she was telling B.M. to leave the house, he kept asking "Why," "What was she talking about?" He was calling her C.G. and saying, "C.G., I'm sorry C.G.," even after she said to him, "I'm not C.G., why are you calling me C.G." B.M. was looking her right in the eye when he was saying these things. M.Y. described B.M. as looking "totally out of it." She asked him, "What's wrong with you?" M.Y. testified she said this because he was looking her in the eye, calling her C.G. and looking completely out of it. She testified there was something definitely weird going on.

[163] It is my view these observations of B.M. where he was unresponsive, his eyes were open, he appeared to be out of it and completely unaware of what he had done afterwards are indicative of B.M. being in a dissociative state.

Did B.M. have a motive to sexually assault C.G.?

[164] It was Ms. D'Eri's position an apparent lack of motive should be given little or no weight when deciding whether B.M. had met his burden to prove his actions were involuntary on a balance of probability. She argued, based on R. v. Bernard, [1988] 2 S.C.R. 833, at para. 84 that sexual assault was a crime of violence and there was no requirement of an intent or purpose beyond the intentional application of force. I agree there is no requirement for the Crown to prove B.M. had a motive to commit a sexual assault on C.G. However, this is not what the Supreme Court in Stone was referencing when Justice Bastarache stated, "A motiveless act will generally lend plausibility to an accused's claim of involuntariness."

[165] Motive has nothing to do with determining whether the sexual assault behaviour occurred, the issue is the relationship between motive and the plausibility of the claim that the act was involuntary. In Stone, Justice Bastarache held "if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased." The question therefore becomes "whether the crime in question is explicable without reference to the alleged automatism, if this question can be answered in the negative, the plausibility of the accused's claim of involuntariness will be heightened." Justice Bastarache refers to the case of R. v. Parks, [1992] 2 S.C.R. 871, where there was no explanation for why the accused would attack his in-laws, with whom he had a good relationship, except automatism induced by a state of somnambulism.

[166] This was the case here, where B.M. was a very close friend of C.G.'s. All of the witnesses, including C.G. testified he had no romantic interest in her. At no point did he ever try to date C.G. He had never made any pass towards her or sent her an inappropriate text or done anything inappropriate to her. This incident was an absolute shock to C.G. and M.Y. because it was out of character for B.M. He knew C.G. was in a long term relationship and he knew her boyfriend. C.G. introduced B.M. to her friend M.Y., who he dated for two years. His behaviour towards C.G. was completely inexplicable and out of character.

Expert Evidence

[167] The Crown submitted the only type of expert evidence contemplated by R. v. Stone was that of a psychiatrist. It is my view this position is far too restrictive. In R. v. Stone, supra, Justice Bastarache made the following comments concerning the expert evidence necessary to support the defence assertion of involuntariness:

In addition to an assertion of involuntariness, the defence must present expert psychiatric evidence confirming its claim (see para. 184).

In order to satisfy the evidentiary or proper foundation burden, all cases will require an assertion of involuntariness and confirming expert evidence. However, this burden will generally require more than an assertion of involuntariness on the part of the accused accompanied by confirming expert evidence that automatism is plausible assuming the account of events given to the expert by the accused was accurate and truthful (see para. 187).

To sum up, in order to satisfy the evidentiary or proper foundation burden in cases involving claims of automatism, the defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion. However, it is an error of law to conclude that this defence burden has been satisfied simply because the defence has met these two requirements. The burden will only be met where the trial judge concludes that there is evidence upon which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. In reaching this conclusion, the trial judge will first examine the psychiatric or psychological evidence and inquire into the foundation and nature of the expert opinion. The trial judge will also examine all other available evidence, if any. Relevant factors are not a closed category and may, by way of example, include: the severity of the triggering stimulus, corroborating evidence of bystanders, corroborating medical history of automatistic-like dissociative states, whether there is evidence of a motive for the crime, and whether the alleged trigger of the automatism is also the victim of the automatistic violence. I point out that no single factor is meant to be determinative. Indeed, there may be cases in which the psychiatric or psychological evidence goes beyond simply corroborating the accused's version of events, for example, where it establishes a documented history of automatistic-like dissociative states. Furthermore, the ever advancing state of medical knowledge may lead to a finding that other types of evidence are also indicative of involuntariness. I leave it to the discretion and experience of trial judges to weigh all of the evidence available on a case-by-case basis and to determine whether a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities. (para. 192)

[168] In R. v. S.H., supra, at para. 26 and 40, Justice Watt made reference to the fact the defence called a neurologist rather than a psychiatrist as their expert witness, however, he pointed out the Crown did not raise any objection. Justice Watt did not hold that the defence could only call a psychiatrist as their expert. In fact, the Crown conceded there was evidence adduced at trial upon which the foundational finding by the trial judge that S.H.'s conduct was involuntary was available. The issue on appeal was the judge's application of the governing legal standard to the determination of whether S.H.'s condition amounted to a "mental disorder" within s. 2 of the Criminal Code.

[169] The Crown's initial position was that Dr. Kenneth Buttoo was not a properly qualified expert based on the threshold requirements for admissibility established in Mohan and White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182, by the Supreme Court of Canada. A voir dire was held to determine whether Dr. Buttoo could be qualified as an expert. At the conclusion of the voir dire, Dr. Buttoo's expertise in sleep and sleep disorders was conceded by the Crown and I qualified him as an expert in these areas.

[170] Despite conceding Dr. Buttoo's expertise, Ms. D'Eri argued during her final submissions that because Dr. Buttoo was not a psychiatrist his evidence could not provide the confirmation of B.M.'s assertion of involuntariness.

[171] In answering the Crown's submission Mr. Balka read the dictionary definition of "psychology," which indicates:

1. The scientific study of the human mind and its functions, especially those affecting behaviour in a given context;

2. The mental or behavioural characteristics of an individual or group;

3. The study of the mind and behaviour in relation to a particular field of knowledge or activity.

[172] As I have indicated, it is my view the Crown's position is too restrictive and after hearing Dr. Buttoo's evidence, I am of the opinion he was and is extremely educated and knowledgeable about sleep and sleep disorders, such as parasomnias that include sexomnia and sleepwalking. As I expressed to the Crown when she conceded Dr. Buttoo's expertise, I agreed with her concession, given Dr. Buttoo's CV and his extensive training, education and work in the areas of sleep and sleep disorders.

[173] I have outlined above Dr. Buttoo's evidence, what he relied upon to come to his conclusion it was likely B.M. at the time of the sexual assault was in a confusional arousal, in particular sexomnia. His expert evidence and expert opinion is uncontradicted.

[174] The Crown provided me with a number of areas where she submitted features existed in the evidence that were inconsistent with sleepwalking.

[175] The first was the length of time from when B.M. first touched C.G. until he was pushed out the side door. The only evidence as to the length of a confusional arousal came from Dr. Buttoo's evidence. The crown did not produce any authoritative texts or articles dealing with this issue that were accepted by Dr. Buttoo. His evidence was a confusional arousal could last for a couple of minutes to up to ten to fifteen minutes on average but there were cases in the literature of episodes lasting up to a half an hour. In R. v. Parks, [, 1992] 2 S.C.R. 871, the Supreme Court of Canada accepted an automatistic-like dissociative state of sleepwalking (sleep driving) where an accused drove 23 km from his home to his in-laws home, where he attacked his in-laws and killed his mother-in-law and seriously injured his father-in-law. Dr. Buttoo testified the timing was consistent with a confusional arousal. There was no definitive time as to when the sexual touching occurred, the best estimate, on the evidence, was around 6 a.m. It could have been a few minutes after 6 a.m. B.M. was pushed out of the house and shortly after he was outside C.G. called 911. It was clear that none of the witnesses were looking at their watches or a clock or keeping track of when the different events took place. The time the 911 call was made came from a question suggested by the Crown, 6:23 a.m.

[176] The Crown also submitted that B.M. engaged in complex behaviours that required planning, which would be inconsistent with someone being in a confusional arousal. Dr. Buttoo agreed with this general statement, however, the Crown did not put the specific factual scenario she alleged involved preplanning to Dr. Buttoo for his comment. The Crown referred to C.G.'s evidence that she believed B.M. was naked when he was standing beside the bed. However, C.G. testified she never looked at B.M. below his waist. She looked at his face and his eyes, which were open. She did not see his penis. It is my view, on her evidence, that B.M. was not naked and therefore when M.Y. saw him coming from the bathroom wearing his black shorts, he did not remove them before touching C.G. and did not have to put them back on after she left the bedroom. Further, I do not know whether this type of activity would qualify as a complex behaviour that required planning. Certainly in the Parks case, driving 23 km on city streets with stop signs and traffic lights and other traffic would appear to be complex behaviours that would require preplanning, yet it was accepted Mr. Parks was involved in a sleepwalking episode.

[177] The Crown also pointed to the fact B.M. left the house with his keys and cell phone. He was not asked where he normally kept these items. A logical inference would be he kept these things in his pants' pockets. M.Y. was asked where he normally kept his keys and she said in his pocket. M.Y. was asked if she saw his keys, she testified she did not. Once again, Dr. Buttoo was not asked about this specific factual scenario would amount to preplanning. In my view the fact B.M. had his keys and cell phone in the pockets of his black cargo shorts does not amount to complex behaviour that required preplanning. The Crown also referred to the fact B.M. as he was being pushed out the side door asked where his shirt was. B.M. testified he did not recall asking for his shirt. Again, I do not believe this amounts to the type of complex behaviour that required him to preplan.

[178] The Crown also submitted the fact B.M. told M.Y., as he was being pushed outside, that he was sorry and was tearing up amounted to higher level emotions that someone who was involved in a sleepwalking episode would not display. Again, the Crown did not put these specifics to Dr. Buttoo and I do not know whether he would have agreed this was the type of higher level emotion he referred to. M.Y. testified she told the police "Like he looked totally out of it" and asked him, "What's wrong with you?" This was because he was looking her in the eye, yet he was calling her C.G. and he looked completely out of it. There was something definitely weird going on according to M.Y. B.M. was not acknowledging what he had done even though he was saying sorry because he kept saying he did not know what Mr. Young was talking about. None of this exchange made any sense to her.

[179] In cross-examination B.M. was asked by the Crown if he was upset at the moment he was being told he had to leave and get out and he responded he was upset and confused as he was being led to the side door and pushed outside. Dr. Buttoo testified when an individual who was involved in an episode of confusional arousal, such as sleepwalking, woke up they would be confused for a period of time. The fact B.M. was aware he was upset and confused during the time period M.Y. was telling him to get out of the house, to just leave, may be the moment in time when he was awakening from his confusional arousal. Further, there was evidence from M.Y. as to the fact B.M. was confused when she described him saying he was sorry, he was calling her C.G., which given they had dated for two years, in my view clearly demonstrated just how confused he was. This is not what I would describe as higher level functioning by B.M.

[180] M.Y. testified she heard B.M. call for a cab to come to her house when she threw out his shirt and jacket that she found on the chair in the kitchen after already running up to her room and getting one of her t-shirts, which she had already thrown outside. All of this would have taken some time and no one was keeping track of time. The fact he was able to call for a cab and provide M.Y.'s address does not prove he did not have an episode of sleepwalking at the time he touched C.G.

[181] Dr. Buttoo answered the Crown's concerns as to M.Y. not experiencing any incidents of B.M. being in a confusional arousal, such as sexsomnia. He testified the bed partner of the individual did not need to experience incidents of sexomnia in their bed. An individual who is sleepwalking would be ambulatory or walking and could come into contact with other persons in the house. His answers were uncontradicted and he was not shown any authoritative texts or articles, which suggested his position was incorrect. What the Crown relied upon were the court decisions in three cases of sexsomnia where this factual situation of the bed partner being the victim of the episode of sexsomnia occurred. In my view this does not call into question the reliability of Dr. Buttoo's opinion or his evidence, nor does it suggest a feature inconsistent with sleepwalking that involved sexsomnia.

[182] With respect to the Crown's submissions respecting the E.G. incident, it is my view the Crown completely ignored the evidence of M.Y. and C.G. that B.M. was not intoxicated on that occasion, he was very tired and he went to bed long before any of the three young women turned in for the night. It is my view the incident involving E.G. was extremely similar to that described by C.G. B.M. had no recollection of the evening after he went to bed until he got up in the morning and found the flowers he had bought for M.Y. all torn up. Further, from the cases provided by counsel, the details provided by the witnesses concerning this incident were consistent with the prior incidents of parasomnia described in those cases. In my view, M.Y. and C.G. both provided fairly detailed accounts of the events of that evening, which occurred 16 months earlier. They described E.G.'s allegation in detail, which was a very similar incident to what happened to C.G. They described being shocked by the allegation as B.M. had no romantic interest in E.G. and it was, on their evidence, the behaviour was completely out of character for him. This was also similar to the facts in the incident involving C.G., in terms of there being no motive on B.M.'s part to engage in the behaviour.

[183] With respect to the urinating incident by B.M. on his futon in the spare bedroom of his house, M.Y. provided details of how this was discovered and her discussion with B.M. about it. In cross-examination B.M. provided further details of what he recalled relating to the discovery the next day by M.Y. It is my view the manner in which M.Y. recalled the incident increased her testimony's reliability. It was my belief from her evidence that she genuinely had forgotten about the incident until her memory was refreshed by Mr. Balka's questioning. Further, B.M.'s mother's evidence of B.M. urinating on his grandmother's steps on a number of occasions after they moved there and the one occasion a similar incident happened at their cottage, supported M.Y.'s testimony concerning this incident. This was important evidence, as I have already indicated above, because this demonstrated a prior history of B.M. experiencing similar automatistic-like dissociative states. His family history is also supportive of this and both of these were relied upon by Dr. Buttoo in coming to his opinion.

[184] The Crown provided me with White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23, [2015] 2 S.C.R. 182 and R. v. Abbey, 2017 ONCA 640, [2017] O.J. No. 4083 (C.A.) dealing with how trial judges should assess expert evidence.

[185] The test in White is now the governing test for the admissibility of expert evidence. It adopts a two-stage approach: the first stage focuses on the threshold requirements of admissibility and the second stage focuses on the trial judge's discretionary gatekeeper role. Justice Laskin, for the Court in Abbey set out the test as follows at para. 48:

Expert evidence is admissible when:

It meets the threshold requirements of admissibility, which are:

a. The evidence must be logically relevant;

b. The evidence must be necessary to assist the trier of fact;

c. The evidence must not be subject to any other exclusionary rule;

d. The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert's duty to the court to provide evidence that is:

i. Impartial,

ii. Independent, and

iii. Unbiased.

e. For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,

and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a. Legal relevance,

b. Necessity,

c. Reliability, and

d. Absence of bias.

[186] As I have indicated the Crown conceded Dr. Buttoo's expertise after a voir dire into whether he met the threshold requirements set out in Mohan and White Burgess.

[187] The fact this was the first time Dr. Buttoo testified as an expert on sleep disorders or parasomnias in no way diminishes the reliability of his review of the materials he was provided from the disclosure, the gathering of medical records and reports to provide information concerning B.M.'s head injury in 2006, his rehabilitation following his initial hospitalization and the continuing difficulties B.M. had experienced to the date of the incident and afterwards, including sleep, fatigue, nausea, vertigo, anxiety and depression. He was also present in court and observed B.M.'s evidence.

[188] It is my view that Dr. Buttoo correctly summarized the statements of the two witnesses, M.Y. and C.G., as it related to the incident before the court, as well as their evidence respecting the prior incident involving E.G. He became aware of another incident involving B.M. urinating on a futon from the evidence called during the trial. It is my opinion Dr. Buttoo was entitled, based on the literature and studies he was aware of concerning parasomnias, to rely on the previous family history of parasomnias in B.M.'s family and other similar incidents of parasomnias described by the witnesses relating directly to B.M., as predisposing factors supportive of B.M.'s assertion his acts towards C.G. were involuntary. Further, it is my view Dr. Buttoo was entitled to rely on the history of B.M.'s catastrophic head injury in 2006 and the subsequent difficulties he experienced relating to sleep and fatigue, anxiety and depression, as a predisposing factor supportive of B.M.'s assertion his acts towards C.G. were involuntary.

[189] I have already dealt with whether there was corroborating evidence of bystanders and whether B.M.'s act was motiveless, which will generally lend plausibility to an accused's claim of involuntariness. In my view both of these areas identified in Stone were present in this case.

[190] I have already dealt with above the Crown's argument respecting whether B.M. was intoxicated. This was by far the Crown's main area of focus in attacking the reliability of Dr. Buttoo's opinion, however, as I found, the evidence of P.C. Mitchell was woefully weak in terms of his opinion B.M. was intoxicated. Further, C.G.'s evidence did not support the position that B.M. was intoxicated. M.Y.'s police statement and her evidence was inconsistent and it is my view she was attempting to explain B.M.'s actions towards C.G., which she testified were incomprehensible and inconceivable to her, by believing he was intoxicated.

[191] Dr. Buttoo did not in his evidence attempt to give evidence with respect to elimination rates, his evidence respecting alcohol-induced blackout was in respect of an article he referred to which indicated an alcohol-induced blackout occurs when there is a rapid rise in an individual's alcohol level. His evidence was that a blackout would be unlikely to occur around 6 a.m. after three hours of sleep and where there was no further consumption of alcohol. It is my view Dr. Buttoo was not attempting to give an opinion on areas outside his expertise. He was responding to questions put to him by the Crown suggesting he had not properly considered an alcohol-induced blackout, which could mimic the same behaviour and loss of memory claimed by B.M.

[192] When Dr. Buttoo referenced a serious head injury as a predisposing factor in an individual having episodes of confusional arousal or parasomnias, he was referring to the texts on sleep disorders and not as a neurologist. Ms. D'Eri put to Dr. Buttoo this was one of the "triggers" for sleepwalking, when in fact Dr. Buttoo testified this was a predisposing factor like a family history of parasomnias and the previous similar incidents of parasomnia involving the B.M. Again, it is my opinion Dr. Buttoo was not straying into an area outside his expertise. The serious head injury or brain injury, which was suffered by B.M., according to the literature (this was not challenged by the Crown) was within the area of expertise Dr. Buttoo was approved to testify as an expert as it is a predisposing factor necessary to consider whether there are priming factors and triggers, which could cause an individual to have a parasomnia episode.

[193] The Crown alleged in her submissions that Dr. Buttoo became an advocate for B.M. and that his report and testimony showed a clear bias in favour of B.M.'s assertion of involuntariness. No specific examples were provided to support this allegation. It is my view Dr. Buttoo did not demonstrate any clear bias in favour of B.M., rather, it is my finding that on occasion, he was clearly attempting to support his conclusions by repeating the underlying basis of his opinion that B.M. was most likely involved in an episode of confusional arousal, in particular sexsomnia. His answers may have appeared to not be responsive to the Crown's questioning, however, I do not find this demonstrated bias on his part. Further, I do not believe Dr. Buttoo in his testimony became an advocate for B.M. As recognized by the Supreme Court in White Burgess, at paras. 32 and 54:

Underlying the various formulations of the duty are three related concepts: impartiality, independence and absence of bias. The expert's opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert's independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party's position over another. The acid test is whether the expert's opinion would not change regardless of which party retained him or her…These concepts, of course, must be applied to the realities of adversary litigation. Experts are generally retained, instructed and paid by one of the adversaries. These facts alone do not undermine the expert's independence, impartiality and freedom from bias.

Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan which I have discussed earlier, the judge must still take concerns about the expert's independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence.

[194] I had the opportunity of hearing Dr. Buttoo's evidence and listened carefully to the answers he gave during a very difficult and challenging cross-examination by an experienced Crown. I was of the view Dr. Buttoo provided helpful and generally objective evidence relating to the factors he considered in arriving at his conclusion. Was his evidence perfect, did his report meet the standard set by an expert who has testified in court on numerous occasions? Probably not but I believe Dr. Buttoo was endeavouring to do his best to explain the very complicated medical area of sleep disorders, parasomnia and sleepwalking and he was addressing the factors identified in Stone and the cases that have followed. Dr. Buttoo's evidence, in my view, did not come anywhere close to the evidence of the expert in Abbey, where the Court of Appeal was not prepared to find the fresh evidence established a clear case of bias. In both White Burgess (para. 49) and Abbey (para. 109), the courts held it would be a rare case where an expert's evidence would fail to meet the threshold requirement of being impartial and unbiased.

[195] It is significant in my view that the Crown chose not to call their own expert dealing with sleep disorders or parasomnias. Dr. Buttoo's evidence was uncontradicted. What is also significant in this case is that the facts based on the whole of the evidence and my findings, support Dr. Buttoo's conclusion.

[196] Based on the whole of the evidence set out above I am satisfied on a balance of probabilities that B.M. was in a dissociative state of automatism when he inappropriately touched C.G.'s buttocks.

Mental Disorder Automatism or Non-Mental Disorder Automatism

[197] In R. v. Stone, supra, at para. 199, Bastarache J. went so far as to take judicial notice "that it will only be in rare cases that automatism is not caused by mental disorder". Bastarache J. further observed, at para. 199 that trial judges should start with the assumption that the condition constitutes a disease of the mind. Trial judges will then have to determine whether that presumption has been rebutted (see also R. v. Luedecke, 2008 ONCA 716, [2008] O.J. No. 4049 (C.A. Doherty J.A.) at paras. 6 and 63).

[198] In this case I have found a prior incident of sexsomnia occurred in March 2015 respecting E.G. This is important when assessing the risk posed by B.M.'s conduct. The fact that B.M. was involved in a prior incident of sexsomnia demonstrates that his conduct toward C.G. is not an isolated "one-off" incident. B.M. was both unaware and unable to control himself in both cases. The risk is heightened because in both incidents B.M. was unable to distinguish between a consenting partner and a non-consenting victim. As indicated in Luedecke, at para. 108, "The identity of the subject of the sexual activity was a matter of chance, not a matter of choice."

[199] I recognize B.M. was unaware of his susceptibility to parasomnia or sexsomnia and that he has taken a number of steps to prevent this situation from recurring in the future. However, both incidents involved someone he was not in a relationship with, although there is also a risk to anyone he is in a relationship with in terms of his determining consent with his partner before sexual activity occurs. This would be problematic if he was in a parasomnia state.

[200] Further, it is my view the evidence of B.M.'s catastrophic head injury, which is a predisposing factor in causing parasomnia, raises concerns about the future risk of B.M. towards those he is in a relationship or others who happen to be in his house in a guest room or when he was visiting relatives or friends. His difficulties with fatigue, sleep problems, stress, anxiety and depression, which have been caused by his injury continue to this day and are all triggers for the onset of a parasomnia state.

[201] B.M. has chosen not to consume alcohol since the charge was laid, which is a significant step on his part. He also recognizes the importance of his sleep apnea diagnosis and the need for him to use his C-PAP machine nightly. Alcohol has a worsening effect on his sleep apnea condition, as does smoking. B.M. stopped smoking for five months, however, he testified he started smoking again due to the stress of this trial. He recognizes smoking exacerbates his sleep apnea and had determined not to smoke, however, stress caused him to change this decision. Consequently, it is my view that it could not be said with any assurance any of these triggers are unlikely to recur singly or in some combination.

[202] I find therefore the presumption of mental disorder automatism has not been overcome. The automatism or parasomnia in this case is a disease of the mind. The comments of Justice Doherty in Luedecke, at para. 6 are appropriate to be reproduced here.

The respondent personifies one of the most difficult problems encountered in the criminal law. As a result of his parasomnia, he did a terrible thing, he sexually assaulted a defenceless, young victim. The reason for his conduct -- automatism brought on by parasomnia -- renders his actions non-culpable in the eyes of the criminal law. That very same explanation, however, makes his behaviour potentially dangerous and raises legitimate public safety concerns. An outright acquittal reflects the non-culpable nature of the conduct but does nothing to address the potential danger posed by the respondent's condition. The Canadian criminal law responds to the public safety concerns by treating almost all automatisms as the product of a mental disorder leading not to an acquittal but to an NCR-MD verdict. That verdict acknowledges that the accused committed the prohibited act but is not criminally culpable. An NCR-MD verdict also permits an individualized post-verdict dangerousness assessment of the accused leading to a disposition tailored to the specifics of the individual case.

[203] The resulting verdict is Not Criminally Responsible.

Released: August 14, 2018

Signed: Justice Peter C. West