ONTARIO
SUPERIOR COURT OF JUSTICE
CITATION: R. v. T.W., 2015 ONSC 960
COURT FILE NO.: 85-14
DATE: 20150211
BETWEEN:
Her Majesty the Queen
A. Shatto, for the Crown
- and -
T.W.
S. Fenton, for the Defendant
Defendant
HEARD: February 9 and 10, 2015
REASONS FOR JUDGMENT
Conlan J.
I. INTRODUCTION
[1] Imagine two accused persons who commit the exact same act - touching of a child in a sexual manner.
[2] One is found guilty of a criminal offence. The other is neither found guilty nor acquitted - he is found to be not criminally responsible for his actions.
[3] In Canada, for good reason, we permit the above to occur. We recognize that there are persons who are exempt from criminal responsibility on account of mental disorder.
[4] Is T.W. one of those persons?
[5] Yes he is.
[6] By the end of the evidence at this trial, the Crown, showing candour and responsible advocacy, conceded that T.W. ought to be found not criminally responsible on account of mental disorder.
[7] I so found. I gave some brief oral reasons for that verdict. Because of the importance of the matter to all of those involved, and to recognize the hard work and smart presentation of the case by counsel, I promised written reasons. These are those reasons.
[8] This trial, without a jury, took place in Owen Sound on February 9 and 10, 2015.
[9] A publication ban is in place regarding the name and identity of the complainant.
II. THE CHARGES, THEIR ESSENTIAL ELEMENTS AND THE BASIC LEGAL PRINCIPLES
Sexual Assault
[10] T.W. is charged with one count of sexual assault. The formal charge reads:
Her Majesty the Queen presents that T.W., on or about May 24, 2013, at the Town of Blue Mountains, Central West Region, did commit a sexual assault on K.P., contrary to section 271 of the Criminal Code of Canada.
[11] For me to find T.W. guilty of sexual assault, the prosecution must prove eachof these essential elements beyond a reasonable doubt:
i. that T.W. intentionally applied force to K.P.; and
ii. that the force that T.W. intentionally applied took place in circumstances of a sexual nature.
[12] Consent and honest but mistaken belief in consent are not relevant issues in this case given the age of the alleged victim at the material time.
[13] If the Crown has not satisfied me beyond a reasonable doubt of each of these essential elements, I cannot find the accused guilty of sexual assault. T.W. would either be acquitted of the charge or found not criminally responsible on account of mental disorder.
[14] If the Crown has satisfied me beyond a reasonable doubt of each of these essential elements, I must find T.W. guilty of sexual assault.
Sexual Interference
[15] T.W. is charged with sexual interference. The formal charge reads:
That T.W., on or about May 24, 2013, at the Town of Blue Mountains, Central West Region, did for a sexual purpose, touch K.P., a young person under the age of sixteen years, directly with a part of his body, to wit: his hands, contrary to section 151 of the Criminal Code of Canada.
[16] For me to find T.W. guilty of sexual interference, Crown counsel must prove each of these essential elements beyond a reasonable doubt:
i. that K.P. was under sixteen years old at the time;
ii. that T.W. intentionally touched K.P.; and
iii. that the intentional touching was for a sexual purpose.
[17] If I amnotsatisfied beyond a reasonable doubt of allthese essential elements, I cannot find the accused guilty of sexual interference. T.W. would either be acquitted of the charge or found not criminally responsible on account of mental disorder.
[18] If I am satisfied beyond a reasonable doubt of allthese essential elements, I must find T.W. guiltyof sexual interference.
Presumption of Innocence
[19] T.W. is presumed to be innocent of each charge that he is facing. He has no burden of proof, subject to the caveat described below regarding the issue of a verdict of not criminally responsible on account of mental disorder.
[20] T.W. testified at trial and denied any criminal wrongdoing. He did not deny that he touched K.P., however, he denied that he did so knowingly or intentionally.
[21] I may accept all, some or none of what a witness says. That includes the accused.
[22] If I believe T.W.’s evidence that he did notknowingly or intentionally touch K.P., then I cannot find him guilty of either offence.
[23] Even if I do notbelieve T.W.’s evidence, if it leaves me with a reasonable doubt about whether he knowingly or intentionally touched K.P., then I cannot find him guilty of either offence.
[24] Even if his evidence does notleave me with a reasonable doubt as to whether he knowingly or intentionally touched K.P., I may find him guilty only if the rest of the evidence that I do accept proves his guilt of the offence in question, beyond a reasonable doubt.
III. THE ISSUE AND THE POSITIONS OF THE CROWN AND THE DEFENCE
[25] There is only one issue – whether the accused ought to be found not criminally responsible on account of mental disorder.
[26] Pursuant to subsection 16(3) CCC, T.W. has the burden of proving, on balance, that he was suffering from a mental disorder such that he ought to be exempt from criminal responsibility.
[27] It was a pleasure having Mr. Fenton appear before me as counsel for the accused. Through his hard work, and the reasonable cooperation of the Crown, Mr. Shatto, the Crown’s case at trial was admitted on consent as a statement of agreed facts, with supporting documentation, marked Exhibit 1.
[28] Specifically, it is agreed that, at the place and on the date described in the Indictment, in the early morning hours, the accused entered a hotel room that was not his. He appeared to be disoriented. When confronted by the room’s adult occupants, he left. The child, K.P., disclosed that she had been touched sexually by T.W. while the accused was in her family’s hotel room. Specifically, she disclosed that, while she was lying in bed, the accused had placed his hand underneath her underwear and touched her vagina.
[29] There is no question that the Crown has proven, beyond a reasonable doubt, that the accused applied force to K.P., in circumstances of a sexual nature. He touched her bare vagina with his hand. The girl was well under 16 years old at the time (she was 6 years of age).
[30] There is no question that, in the ordinary course, findings of guilt would follow against the accused on both counts on the Indictment. The acts of the accused would ordinarily be found to have been voluntary and intentional.
[31] But this is not an ordinary case. It must be determined whether T.W. should be held criminally responsible for his actions. To make that determination, I must decide whether the accused was suffering from a mental disorder at the time that he touched the young girl.
[32] If he was, and if that mental disorder prevented him from having the capacity to have touched K.P. on purpose (intentionally), then T.W. cannot be found guilty of either offence.
IV. ANALYSIS
The Legislation – Mental Disorder
[33] Subsections 16(1) to (3) CCC tell us the following.
[34] First, an accused who, because of a mental disorder, was incapable of appreciating the nature of his act or knowing that it was wrong at the time that he committed it cannot be found criminally responsible for that act.
[35] Second, until proven to the contrary on a balance of probabilities, it is presumed that an accused is not exempt from criminal responsibility on account of mental disorder.
[36] Third, where the accused raises the issue of criminal responsibility, he has the burden of proving that he was suffering from a mental disorder so as to be exempt from a finding of guilt.
[37] If a verdict of not criminally responsible on account of mental disorder ("NCR") is rendered under section 672.34 CCC, then either the Court or the Ontario Review Board ("ORB") may hold a disposition hearing: subsections 672.45(1) and (1.1) CCC.
[38] If the matter is referred to the ORB, then the disposition hearing must be held within thirty days of the verdict being made, however, the Court may extend that deadline to ninety days: subsections 672.47(1) and (2) CCC.
The Jurisprudence – Mental Disorder
[39] The history of non-insane automatism can be traced through the line of cases from Parks, to Stone, to Luedecke, to Bouchard-Lebrun, to S.H.
[40] Let us begin with the decision of the Supreme Court of Canada in R. v. Parks, 1992 CanLII 78 (SCC), [1992] 2 S.C.R. 871.
[41] In Parks, supra, La Forest J., for the majority, set out two discrete tasks for a trial judge to undertake in determining whether automatism ought to be left with the trier of fact, whether the judge or a jury. First, it must be determined whether a proper foundation for a defence of automatism has been established. Put another way, has the evidentiary burden been met? Second, if a proper evidentiary foundation has been established (which will always require more than the mere assertion of involuntariness), the trial judge must determine whether the condition alleged by the accused is mental disorder or non-mental disorder automatism (page 897).
[42] Fundamentally, only voluntary acts can attract findings of guilt. Automatism is a sub-set of the voluntariness requirement – a part of the actus reus component of criminal liability. Thus, a successful automatism argument cannot result in a finding of guilt (page 896).
[43] Several years after Parks, supra was decided, the Supreme Court of Canada gave its ruling in R. v. Stone, 1999 CanLII 688 (SCC), [1999] 2 S.C.R. 290.
[44] In Stone, supra¸Justice Bastarache, for the majority, held that an accused, in order to satisfy his evidentiary burden to advance a defence of automatism, must assert involuntariness and present expert psychiatric evidence confirming its claim (paragraphs 183 and 184).
[45] There are two forms of automatism – mental disorder and non-mental disorder. A successful defence of mental disorder automatism will result in a special verdict of not criminally responsible on account of mental disorder. A successful defence of non-mental disorder automatism will result in an acquittal. The question is whether the condition alleged by the accused is indeed a mental disorder – “a disease of the mind” (paragraphs 194 and 195).
[46] More than a decade after Stone, supra, the Supreme Court of Canada had another occasion to return to the issues of mental disorder in R. v. Bouchard-Lebrun, 2011 SCC 58, [2011] S.C.J. No. 58.
[47] In Bouchard-Lebrun, supra, LeBel J., for the Court, reiterated the uniqueness of the defence of mental disorder. Rather than resulting in an acquittal, a successful defence of mental disorder results in a special verdict of not criminally responsible. In turn, that verdict triggers an administrative process which is aimed at protecting the public and helping the accused. Morally innocent offenders ought to be treated, not punished (paragraph 52).
[48] An accused who wishes to advance a defence of mental disorder must meet the requirements of a two-stage statutory test. The first stage deals with the mental state of the accused – was he suffering from a mental disorder, in the legal sense, at the time of the alleged event? The second stage concerns the effects of the mental disorder – owing to his mental condition, was the accused incapable of knowing that what he did was wrong? (paragraph 56).
[49] In the meantime, before Bouchard-Lebrun, supra had been decided, the Court of Appeal for Ontario had released its decision in the case of R. v. Luedecke (2008), 2008 ONCA 716, 93 O.R. (3d) 89. Justice Doherty, for the Court, clarified that automatism is not really a defence in the true sense but more accurately thought of as a denial of the actus reus of the offence (paragraph 56 of the Quicklaw report).
[50] An accused whose automatism is rooted in mental disorder will be found not criminally responsible on account of mental disorder – she will not be acquitted. This is not surprising. “Social defence concerns” focus on the risk that the accused may again do something dangerous while in a state of automatism. There will almost always be the need for further inquiry to assess the level of the accused’s dangerousness, treat her and protect the public. Hence, an acquittal is not appropriate (paragraphs 59 and 100 of the Quicklaw report).
[51] Finally, and most recently, we have the decision of the Court of Appeal for Ontario in R. v. S.H., [2014] O.J. No. 1890. Justice Watt, for the Court, reminded us of what “automatism” means – a state of impaired consciousness during which a person can act but has no voluntary control over that action (paragraph 62).
[52] Where an accused advances automatism to answer a charge, she must satisfy the evidentiary and legal burdens of proof. On the former, there must be evidence upon which a properly instructed jury could find, on balance, that the conduct of the accused was involuntary. On the latter, there must be evidence upon which the trier of fact could find, on balance, that the conduct of the accused was involuntary (paragraphs 66 through 68).
The Key Undisputed Facts
[53] There is no dispute that, in the early morning hours on May 24, 2013, T.W. exited his hotel room at the Westin in Blue Mountains, entered a room two doors down the hallway through the unlocked and malfunctioning door of that room, touched sexually a six-year old girl who was lying on a sofa bed with her older brother, entered the bathroom and urinated, was confronted by the girl's parents, left the room to return to his own room and was arrested by the police later that morning.
[54] The accused was a stranger to the girl and her family. They were at the hotel for completely different purposes. The accused was at the hotel for a conference. He works for an investment company. He had travelled alone from British Columbia, by airplane. The P. family (mother, father, K.P. and her older brother) was at the hotel for a youth hockey tournament.
[55] When T.W. was confronted by the girl's parents, the accused was very disoriented and confused. Although he had drank some alcohol between about 6:00 p.m. and 2:00 a.m., he did not appear to be intoxicated. A few hours had passed. K.P.’s father could not tell whether the accused had been drinking. The Blue Mountain Security – Incident Report indicates that, according to hotel staff, they were “not certain of his [T.W.’s] level of intoxication or if he even consumed at all”.
The Evidence in Support of a Verdict of NCR – Mental Disorder
(i) The Expert Opinion Evidence
[56] Other than the general principle that persons normally intend to do what they do, there is no positive evidence that T.W. intended to touch the girl sexually or that he acted voluntarily.
[57] To the contrary, there is a wealth of evidence that he was not fully conscious when he entered the girl's hotel room and up until when he was confronted by the girl's parents, at the earliest.
[58] I was fortunate to have the assistance at trial of Dr. Jonathan Fleming, a renowned expert in sleep disorders.
[59] Dr. Fleming testified for the Defence.
[60] On consent, Dr. Fleming was accepted by the Court as an expert witness entitled to give opinion evidence on a host of psychiatric issues that relate specifically to sleep disorders.
[61] Dr. Fleming is Professor Emeritus in the department of psychiatry, faculty of medicine, at the University of British Columbia (“UBC”).
[62] He has taught extensively in the areas of sleep, anxiety and mood disorders. He has taken post-graduate courses in the area of sleep disorders. He has attended and presented at several continuing education programs and workshops devoted to sleep disorders. He has been a visiting lecturer at other universities on topics related to psychiatry generally and sleep disorders specifically. He has conducted research and received grants for projects related to sleep disorders. He has held prominent positions with UBC’s department of psychiatry for many, many years. He has held prominent positions with scholarly societies devoted to psychiatry generally and sleep disorders specifically. He is the former co-editor of a journal, Sleep Disorders File. He has been an examiner and consultant for other universities and professional organizations. He has received many awards for teaching. He has published extensively in the area of sleep disorders in journals, conference materials and chapters in books. His Curriculum Vitae is, in a word, impressive. That word does not do it justice.
[63] Not only is Dr. Fleming impeccably qualified, but his presentation of the issues, both in writing his reports that were tendered as Exhibits and in his oral testimony at Court, was clear, thorough, balanced, credible and reliable.
[64] Those reports speak for themselves. To quote from them is unnecessary.
[65] In a nutshell, Dr. Fleming has diagnosed T.W. with Non-Rapid Eye Movement Sleep Arousal Disorders – Sleep Walking Type, with sleep related sexual behaviour (sexsomnia).
[66] According to Dr. Fleming's opinions, T.W. did not intend to touch the girl sexually. He did not know what he was doing at the time. He was "sleep walking" (this is my simplistic term; the Dr. explained it more delicately than that).
[67] Dr. Fleming's opinions are shared by the Crown's expert, Dr. Jeffrey Van Impe, whose report was also filed but who did not testify at trial.
[68] Dr. Van Impe is a forensic psychiatrist based in Penetanguishene, Ontario.
[69] Dr. Van Impe, an esteemed professional himself, in his report, described Dr. Fleming as “one of the preeminent experts on sleep disorders in our country”. In the words of Dr. Van Impe, “Dr. Fleming has an impeccable Curriculum Vitae and I certainly would not be in a position to contradict or refute any of the opinions or diagnoses he made as they relate to sleep disorders, including a diagnosis of Sexsomnia”.
[70] How refreshing. I credit Dr. Van Impe for not allowing hubris to get in the way of fair comment.
[71] As Dr. Van Impe put it in his report, what T.W. did to the girl was involuntary and unintentional and done in a state of automatism.
[72] Both doctors were present in Court and heard the other witnesses testify.
[73] I accept the opinions of the experts.
[74] Things spoken from the mouth of an expert need not be swallowed holus bolus just because they are cloaked in the mystique of a so-called "expert" witness.
[75] But, here, Dr. Fleming is extraordinarily talented. His opinions are endorsed by another highly regarded specialist, Dr. Van Impe. And their opinions find support in the other evidence at trial.
(ii) The Evidence of the Accused and His Former Girlfriend
[76] Both T.W. and his former girlfriend testified that they had several discussions about the accused having acted strangely during the night, while not fully awake.
[77] For example, he would grope her sexually and talk to her in a provocative and crude way. It was like he was a totally different person.
[78] There is evidence that those bizarre things have continued with T.W.'s present girlfriend, although not frequently over the last several months.
[79] Of course, the evidence of the accused and his former girlfriend is entirely consistent with the opinions expressed by the two experts and the factual underpinnings for those opinions.
[80] I found both T.W. and his former girlfriend to be credible and reliable witnesses. The former girlfriend was a little verbose, however, I think that was more nerves than anything else.
[81] I believe them.
(iii) The Crown’s Evidence by way of Agreed Facts
[82] As already noted previously herein, Exhibit 1 and its enclosures support the fact that the accused was confused, disoriented and did not appear to be intoxicated at the time that and shortly after he was in the bathroom of the room that he entered uninvited.
[83] He had alcohol in his system. He had consumed many drinks the evening before.
[84] Dr. Fleming agreed that alcohol consumption likely played some part in the incident in that it contributed to the onset of the sleep walking episode, along with sleep deprivation for several days, significant travel and a change in time zone.
[85] But self-induced intoxication was clearly not the governing, the primary or even a major factor.
The Bottom Line
[86] The inescapable conclusion is that T.W. did not intend to touch the girl sexually. He did not appreciate the nature of his actions. He did not know what he was doing. He did not voluntarily interfere with the girl. He did not knowingly assault her.
[87] The Defence has met its evidentiary and legal burdens. I am satisfied on balance that T.W. did not act voluntarily.
[88] In short, he was not really awake when the incident occurred. He was not fully conscious. He was suffering from a mental disorder as diagnosed by Dr. Fleming. He was in a state of automatism. He was, owing to his mental disorder, incapable of knowing that what he did was wrong.
[89] As such, the accused cannot be held criminally responsible for his actions.
[90] I recognize that this may be difficult to accept by those who have been traumatized by this serious incident.
[91] Nothing herein is meant to cheapen the significance of what happened to K.P. She was victimized. So was her family. But they were not victimized by a man who can be found guilty of a criminal offence.
[92] I also recognize that there are members of the public who would find a decision like this to be another example of criminal injustice.
[93] I beg to differ.
[94] NCR is not a common verdict. It has to be based on hard evidence. The accused has to meet his burdens on a balance of probabilities.
[95] When it is established, we owe no apologies for its consequences. Mental illness and mental disorders are real. They are not imaginary. They are not mere crutches for those who want to be excused for their penchant to commit crimes.
[96] T.W. will have a hearing at a specialized tribunal, the Ontario Review Board. The Board will consider all of the evidence and make a fit disposition.
[97] This is not a "free pass" for an otherwise guilty person. T.W. is not guilty.
V. CONCLUSION
[98] For the foregoing reasons, the verdict on count 1 (sexual assault) is NCR on account of mental disorder. That special verdict is rendered pursuant to section 672.34 CCC.
[99] Under subsections 672.45(1), 672.45(1.1) and 672.47(1) CCC, disposition is referred to the ORB. A hearing shall be held within 90 days of February 10, 2015.
[100] A conditional stay is entered on count 2 (sexual interference).
[101] On count 1, a Sex Offender Registry Order is made for a period of twenty (20) years.
[102] For the oral reasons delivered at Court on February 10, I decline to make a DNA Order.
[103] The ORB will receive a copy of these reasons, together with all documents required to be transmitted as per the provisions of the CCC.
[104] I thank Mr. Fenton, Mr. Shatto, Dr. Fleming and Dr. Van Impe for their able assistance with this difficult case.
Conlan J.
Released: February 11, 2015
CITATION: R. v. T.W., 2015 ONSC 960
COURT FILE NO.: 85-14
DATE: 20150211
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen
- and -
T.W.
Defendant
REASONS FOR JUDGMENT
Conlan J.
Released: February 11, 2015