



WARNING

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

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

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the complainant or a witness shall not be published in any document or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

(a)     any of the following offences;

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

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

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

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

(2)
In proceedings in respect of the offences referred to
in paragraph (1)(a) or (b), the presiding judge or justice shall

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

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

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

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

486.6     (1)
Every person who fails to comply with an order
made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an
offence punishable on summary conviction.

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





COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Hartman, 2015 ONCA 498

DATE: 20150706

DOCKET: C56949

Doherty, Cronk and LaForme JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Ryan Hartman

Appellant





Danielle Robitaille, for the appellant

Christine Bartlett-Hughes, for the respondent

Heard: February 12, 2015

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



Doherty J.A.:


I



OVERVIEW

[1]

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

[2]

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

[3]

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


II



the evidence at trial

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

[11]

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

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

[12]

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

[13]

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

[14]

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

[15]

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

[16]

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


III



should the sexsomnia evidence be admitted on appeal?

[17]

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

(a)

The legal principles

[18]

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

·

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

·

Is the evidence sufficiently cogent to warrant its admission?

·

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

[19]

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

[20]

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

(b)

The allegations against trial counsel

[21]

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

[22]

The
Crown takes issue with the appellants claim that trial counsel provided
ineffective assistance. Trial counsel filed an affidavit and was cross-examined
on that affidavit.

[23]

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

[24]

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

[25]

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

[26]

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

[27]

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

[28]

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

[29]

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

(c)

The evidence

[30]

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

[31]

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

[32]

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

[33]

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

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

[34]

My
review of Dr. Gojers reports and evidence reveals nine factors relied on by
Dr. Gojer in coming to his opinion:

1)

the family history, including the appellants mother sleepwalking as a
child;

2)

the appellants sleepwalking as a young child;

3)

the appellants other associated sleep disorders: e.g. nightmares and
sleep paralysis;

4)

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

5)

alcohol consumption as a triggering factor for parasomnia and the appellants
reported drinking before he went to sleep;

6)

the appellants lack of recollection of any sexual interaction with the
complainant;

7)

the absence of other allegations of sexual misconduct and the
inconsistency of the sexual assault with the appellants character;

8)

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

9)

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

[35]

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

[36]

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

[37]

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

[38]

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

[39]

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

[40]

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

[41]

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

[42]

Finally,
there is merit to the Crowns submission that Dr. Gojers unexplained and outright
dismissal of intoxication as a possible explanation for the appellants conduct
suggests a less than objective assessment of those events. Alcohol is perhaps
the most obvious explanation.
[3]

[43]

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

[44]

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

[45]

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

[46]

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


IV



the appropriate order

[47]

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

[48]

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

[49]

A
new trial is the appropriate order in these circumstances.

[50]

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

[51]

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

[52]

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

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



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

[53]

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

[54]

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

[55]

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

[56]

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


V



conclusion

[57]

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





RELEASED:  DD  JUL 06 2015

Doherty J.A.

I agree E.A. Cronk
J.A.

I agree H.S. LaForme
J.A.





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



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



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



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



