



WARNING

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

An order restricting
    publication in this proceeding under ss. 486.4(1), (2), (2.1), (2.2), (3) or
    (4) or 486.6(1) or (2) of the
Criminal Code
shall continue.  These
    sections of
the Criminal Code
provide:

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    that any information that could identify the victim or a witness shall not be
    published in any document or broadcast or transmitted in any way, in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

(a)     any of the
    following offences;

(i)      an offence
    under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1,
    172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02,
    279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii)      any offence
    under this Act, as it read at any time before the day on which this
    subparagraph comes into force, if the conduct alleged involves a violation of
    the complainants sexual integrity and that conduct would be an offence
    referred to in subparagraph (i) if it occurred on or after that day; or

(iii)     REPEALED: S.C.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

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

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

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

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

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    that could identify the victim shall not be published in any document or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

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

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

(b) on application of
    the victim or the prosecutor, make the order.

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

(4)     An order made
    under this section does not apply in respect of the disclosure of information
    in the course of the administration of justice when it is not the purpose of
    the disclosure to make the information known in the community. 2005, c. 32, s.
    15; 2005, c. 43, s. 8(3)(b); 2010, c. 3, s. 5; 2012, c. 1, s. 29; 2014, c. 25,
    ss. 22, 48; 2015, c. 13, s. 18.

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

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




COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Wabegijig, 2021 ONCA 814

DATE: 20211116

DOCKET: C67789

Doherty, Pardu and Thorburn
    JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Jesse Wabegijig

Appellant

Jeff Marshman, for the appellant

Joan Barrett, for the respondent

Heard: November 9, 2021

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

REASONS FOR DECISION


[1]

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

[2]

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

[3]

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

[4]

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

[5]

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

[6]

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

[7]

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

[8]

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

[9]

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

[10]

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

[11]

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

[12]

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

[13]

The trial judge said, at para. 193:

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

[14]

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

[15]

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

[16]

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

[17]

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

[18]

The appeal is dismissed.

Doherty J.A.

G. Pardu J.A.

J.A. Thorburn J.A.





[1]

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


