R. v. McKendrick, 2013 ONCJ 589

Citation: R. v. McKendrick , 2013 ONCJ 589 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DANIEL McKENDRICK Before Justice P. Harris Judgment delivered on October 22, 2013 C. Sweeny ...….................................................................................................... for the Crown J. Hechter …....................................................................................................... for the Defence Harris, J.: [ 1 ] Daniel McKendrick was charged with sexual assault and unlawfully in a dwelling on the 26 nd day of January, 2012. The Crown proceeded by

summary conviction and the defendant pleaded not guilty. [ 2 ] The trial began on December 10, 2012 and was completed on, September 6 th , 2013.

At the outset, identity was in issue and after certain contested evidentiary issues were determined and the statement of the defendant admitted along with fingerprint evidence, the focus of the trial turned to the defence of automatism in the form of parasomnia or “sexomnia.” In other words the defendant initially took the position he was not the male who sexually assaulted the complainant T.H. and later conceded that he likely was the intruder, but that his actions were involuntary by reason of the fact he was he was asleep or in a state of somnambulistic automatism at the time. [ 3 ] If there is any question of identity remaining ─ that is whether Daniel McKendrick was the male who entered the bedroom and sexually assaulted the sleeping T.H. ─ I will conclude that issue by stating that I have applied the leading credibility formula to all of the testimony heard and I am satisfied to the usual criminal standard of proof that the defendant was the individual who entered the complainant’s apartment and sexually assaulted her while she slept.

I have arrived at that conclusion on the basis of the defendant’s fingerprint located close to the complainant’s bedroom and the observations and descriptions provided by the complainant T.H. and her roommate K.E.. Most telling is T.H.’s description of the individual who accosted her as having a piercing through the bridge of his nose, a feature of his appearance that was noted by police at the time of his arrest. Additionally, Daniel McKendrick had access to her second floor apartment because he lived in the building, in an apartment at the base of the stairs inside the locked front door.

In fact he has given evidence that he went upstairs and knocked at the apartment door earlier in the evening on which the assault occurred. The male who entered her bedroom and bed and began touching her said his name was “Daniel.” Both young women had seen Mr. McKendrick “poke his head” in their apartment door prior to January 26th, 2012.

That morning on the way into the building, K.E. saw a male come “barefoot” out of the front door of the triplex and enter the side door, just before being contacted by T.H. telling her “something really messed up just happened.” T.H. was referring to having been touched by a male in her bed while she was asleep. Both witnesses’ description of him that morning closely matched the appearance of Daniel McKendrick in the police photos on arrest (see exhibits 1A and 1B). THE EVIDENCE T.H. [ 4 ] T.H. and two female roommates (one of which was K.E.) lived on the second floor of a triplex at B[…] in Toronto.

Daniel McKendrick and his father lived on the main floor. The three young women on the second floor often left their apartment door at the top of the stairs unlocked because the front door to the building was always locked (and could only be opened by a key or by using a keypad entry system). T.H. testified that on January 25th, 2012, she and her best friend Caitlyn and Caitlyn’s boyfriend Lewis, were watching a video in her bedroom (she was in bed and they were on the couch).

Eventually she fell asleep at about 1:00 to 1:30 am January 26th, and her friends left without locking the apartment door because they did not have a key. She said she awoke to find a male in her bed “in his boxers” “with his arm around me trying to get into my underwear.” She stated he was touching “around my butt area” “with his index and middle finger”, “inside”; “there was no actual penetration”, but “that’s what woke me up.” She stated that he was doing this with what “would have been his left [hand], I believe.” “She testified she said to him: “Who the fuck are you?” And he answered: “I’m

Daniel.” And she said: “Well you need to leave right now.” “Get the fuck out.” “Leave.” [ 5 ] According to T.H., before leaving the second floor apartment, the male “kept on asking me where he was.” She said he asked me if he was on B[…] Street or Dundas, and I said, “It doesn’t matter. Just get out. I’m calling the cops. Get the fuck out of my house.” T.H. stated: “He seemed like he was a little bit embarrassed and confused.” “I didn’t smell booze on him.” “He didn’t apologize or anything.

It didn’t seem like it was a mistake.” Very soon after he left K.E. came into the apartment and they had a discussion about what they had both observed. T.H. was shocked and upset and they decided to contact the police. T.H. gave evidence that she had seen the defendant on a previous occasion. About a month before this incident, she said they had a few people over one evening and “he just ran upstairs and opened the door” and asked for cigarettes.

She said they “were a little creeped out” that “a strange person comes into your apartment unannounced.” She remembered the fact that the bridge of his nose was pierced. T.H. was asked if anything else in the apartment had been disturbed and she said she noted that K.R.’s bedroom door was open, and she always kept it closed because “she didn’t want the cats inside her room.” T.H. testified that she had not been drinking (alcohol) that night. Further, she stated that the police came to her apartment about a noise complaint on one occasion in the past, the night of her birthday, April 2nd.

K.E. [ 6 ] K.E. gave evidence that she was just coming home to the apartment she shared with T.H. and when she was about fifty metres from their building she saw a white male wearing knee length shorts and a black shirt (see police photos on arrest, Ex. 1A and 1B) “leave our front door and go back inside.” As she was walking upstairs she received a call from “T.H.” and this was about 2:00 am. K.E. found her “on her bed a little freaked out….she was in shock… didn’t know what just happened.” They both discussed who they had just seen and they concluded it was the young male who lived downstairs.

K.E. testified she had seen him twice in the past four months. The first time he asked for cigarettes and the second time he asked us “to be a little bit quiet.” “Both times he didn’t knock, he just barged in.” K.E. said they discussed whether it was serious enough to call the police and about 45minutes to an hour later they had a friend call the police. Police Evidence [ 7 ] At 3:22 am, officers from 14 Division were dispatched to investigate a “sexual assault at B[…]”.

After obtaining a description of the individual who had entered the apartment and the name he used, and a reference to him having “some connection to the building”, police officers located a young man by the name of Daniel in the apartment downstairs from T.H.’s residence. He was wearing a black shirt and shorts, was barefoot, and was sitting asleep at a computer with his pants down and his penis in his left hand. There was a pornography image on the screen.

After having been awakened, it did “appear that he had been drinking.” The bridge of his nose was pierced and he removed the bar and studs at the officer’s request. Police observed there were footprints in the snow “leading from the front door to the north side of the building.” The defendant was transported to the police division where he gave a statement to the officers. Daniel McKendrick [ 8 ] Mr. McKendrick was advised of the allegations and provided an audiotape statement to police.

He stated he was 22 years of age and had lived with his father Patrick on the first floor of the building at B[…] for two months. He stated he could enter his apartment from either the front door or the side door using keypad combination locks. He said he had met the three female roommates living in the apartment upstairs on a number of occasions about noise complaints. Mr. McKendrick was told about the complainant’s allegation and asked if he “went up to her apartment last night.” He said, I did go up to complain, about 8:00 p.m. last evening, knocked at the door and nobody answered.

He stated, “Then I got locked out of my apartment and went in the side door.” He was asked if he had been in her bedroom today and he replied that that was “impossible.” He was asked, “Did you lie next to her?” and he answered, “No.” He said he was “never in their room for three weeks” and described an incident three weeks before when he complained about noise. He walked into their apartment after knocking and receiving no answer. “There was 5, 6 girls at the table and they screamed in surprise.” “I asked them to be quiet.” They said, “Thank you” and “Sorry”. Mr.

McKendrick asserted that everything the complainant said from “entering the apartment and after that is a lie.” [ 9 ] Daniel McKendrick gave evidence at his trial and testified that he first moved into the building in the summer of 2011; then about a month later moved to the first floor in order to share an apartment with his stepfather, Patrick. He testified that he had probably been upstairs twice, once to “bum a cigarette” and once another night when his girlfriend had complained about the noise and he went to speak to the tenants upstairs that night.

When he moved in with his stepfather, who was a heavy drinker, they usually drank about five or six drinks a night and one time ….”like 20.” He stated “I was probably an alcoholic.” He stated he was working at a restaurant called Karine’s as a chef and it was 10 to 12 hours a day “with one day off a week usually.” He said I “enjoyed it as stressful as it was.” “I would usually work or drink myself to exhaustion to fall asleep.” He gave evidence that he had trouble placing events in chronological order and remembering simple things like what day of the week or month it was.

The day before the incident, January 25, 2012, he stated he got off work anywhere “between six and nine.” “My memories of it are pretty clear. The times are not, but the details are quite vivid.” [ 10 ] Mr. McKendrick testified that on the way home from work he stopped to “grab a drink” and stayed for what “felt like a couple of hours.” By the end of the night, he stated he “had at least 10 drinks in me”.

After that he said he went directly home and went to his room after about 15 minutes because his mother, who was visiting his stepdad, said, “I was looking tipsy.” “She told me I looked drunk.” He retired to his room changed into shorts and a tank top and turned on his computer. He was asked how long he was online and he replied, “Maybe 20 minutes to an hour before I heard a loud crashing upstairs”. “It sounded like a pot falling or something being knocked down”.

He testified, “I got a bit irritated…noise was a regular thing upstairs…I thought this was the beginning of, you know, more noise.” So I went upstairs to complain. I knocked on the door. Nobody answered. I went back downstairs to realize that I had locked myself out of my apartment, because it closed behind me and the door locks automatically”. He stated he went around through the side door which requires a keypad access. Back in his room he stated that he went back on the computer and fell asleep, “Looking at porn”.

The defendant stated that, “The next thing I knew I was in a cop car for 20 minutes in the parking lot at 14 Division.” Mr. McKendrick was asked, “When you’re up there how much noise were you able to hear?” He replied, “None.” “It was just one really loud

noise”. [ 11 ] He was asked about prior issues with sleep and he testified that he has been known to sleepwalk and sleep-talk and said his brother saw him walk to the washroom and fall asleep in the bathtub once. He commented that, “Different girlfriends have told me that I’ve groped them in the middle of the night”. Under cross-examination he stated he had read about “parasomnia” before the incident and when he went to see Dr.

Shapiro he agreed he said he was there, “Because of parasomnia.” The one incident involving a former girlfriend, Nicky (Nicole Ineese), he recalled was when he was camping with her and her friend’s family and (she later told him) “I started to grope her in her sleeping bag and her friend’s family was nearby.” He also commented that there were a few times with a girlfriend Melissa, “When I woke up during intercourse.” He stated that he had no medically reported history of sleepwalking but his brother told him he “Had got out of bed, went to the bathroom, turned on the tap and fell asleep ” when he was 11 or 12 years of age, but he had no personal recollection of any sleepwalking incidents. [ 12 ] The Defendant gave evidence that he believed he bought and drank 6 pints of beer ― 20 ounce drinks ― over the course of a couple of hours.

He believed he was home at midnight. He stated he was regularly inebriated after work and on the night of the incident, “I was a little more inebriated than usual.” He testified that the number of drinks he had at the bar, “Was pretty high and I would say over 15, somewhere between 15 and 20”. He was asked, “The noise you heard upstairs didn’t wake you up?” He replied, “No the noise actually annoyed me a little bit. It..it brought me to. I was dozing off and suddenly there’s this noise going on upstairs”.

Later in his testimony he was asked what he meant and he said, “The noise startled me.” “After I knocked there was complete silence. Maybe an animal possibly knocked something over. I know that I was still awake. I went upstairs”. He testified he “could not dispute the evidence” that he was in her apartment, and that he touched one of the door handles to another woman’s bedroom. He said. “I was not aware. I have no memory”. Mr. McKendrick agreed it was possible his memory loss was from a blackout caused by the fact he was extremely intoxicated. Dr. Colin Shapiro [ 13 ] Dr.

Colin Shapiro was qualified as an expert witness in psychiatry, neuropsychiatry and sleep disorders, including parasomnia and sexual behaviors that occur in the context of sleep disorders. In his report, (Exhibit 12), Dr. Shapiro concludes that on the basis of the evidence he reviewed, Daniel McKendrick likely performed the act of which he is accused while he was asleep. Dr. Shapiro states in his report Page 20) that: He has never performed a sexual assault before.

The likelihood is that in his sleep and notably at the beginning of the sleeping period if his estimate is that he gets to bed at 1:00 and the episode is completed by 3:00 which is the time at which most deep sleep would have occurred, he probably got up in his sleep, went upstairs, possibly went into the bedroom that was unoccupied, then walked into the bedroom of the woman who now accuses him of the assault, got into bed with her and started to touch her, including putting his finger between her buttocks.

She would almost certainly have been awoken by this fairly shortly thereafter and Daniel declares his name and then leaves the room. He is somewhat incredulous when confronted by the information that he is later given by the police. He does not come across as someone who is calculating to misrepresent. That is both on the clinical impression and based on the formal psychological testing that was done. [ 14 ] Dr. Shapiro indicated in his report that the defendant stated at the outset that the reason for attending for an assessment was “sleep sexomnia.” He told Dr.

Shapiro that he had initiated sexual activity with a partner while asleep and that his brother has on occasion done that as well. The Doctor states that the defendant told him he was drinking 15 – 20 drinks a day for a month at around that time of the incident and that on that night of the incident he had a maximum of 20 drinks. [ 15 ] Dr.

Shapiro testified that “parasomnia” is behaviour engaged in while asleep that individuals are not aware of and “their acts are not conscious or censored in any way by the part of the brain that would normally control those behaviours.” “Sexomnia is just a parasomnia which has a sexual component.” He postulated that since Mr.

McKendrick regularly had markedly fragmented sleep as a result of a very high number of arousals (an average of 43/hr.) in the sleep study he conducted, and he had been drinking very heavily in the evening before this incident resulting in a deep sleep attributable to the alcohol consumption, the stage would have been set for parasomnia. “The deep sleep and the arousal mixed together….that’s the situation I think sets the stage for parasomnia.” His conclusions could be summarized as follows: (at page 72) The difference is that the man in court has so many arousals that he can’t get into the deep sleep very much…so if he catches a deep sleep, one has to think, and this is speculative I have to accept , that he is going to have a burst of very deep sleep which might set the stage for the behaviours that are the issues. (Emphasis added). [ 16 ] Besides the clinical assessment and the extensive testing to which Mr.

Mckendrick was subjected, there were features of the case that were typical of a parasomniac, according to Dr. Shapiro. He gave evidence that: (at pages 80, 81 of the May 16 th , 2013 transcript) …if you’re somebody who is intent on a sexual criminal act giving your name and trying to work out what your address its, is not what your first thought is. The instinctive behaviour would be to be mum and to try and get out of there and not stand there for a questioning. So, to me, it says to me that, you know, he was confused and he is trying to be informative and then he leaves.

There’s a further suggestion that the police find him walking around -- well, found him later, but there’s some evidence that he was going outside without shoes on, again, suggesting some confusion. If someone is going to commit a sexual, an intentional sexual act on someone, you might remember to take your key with you to be able to get back into your house. So things seem to --- it seems to me from what I read into this situation, it is a bit of reading in, that he was confused at the time as would be typical of a parasomniac. [ 17 ] Asked how confident he was that this was

an act of parasomnia, Dr. Shapiro stated that, "You can never be 100 per cent confident but, you know, in your jargon on a balance of probabilities, I think it's very likely." [ 18 ] Under cross-examination, he said that he thought the defendant had probably gone to sleep at about one in the morning. Dr. Shapiro quotes Mr. McKendrick who stated he had the following memory of the night of the event: (page 107-108) "He said he dozed

off, he wakes up feeling cold in the police car at 6:00 a.m…..my one memory is outside in the cold without shoes." Dr.

Shapiro wasasked, "if he testified that he had a vivid recollection of going to her apartment and knocking on the door, her not answering and thengoing back downstairs and noticing that he was locked out, going around the house in his bare feet and back into his apartment, thatwould not be consistent with a parasomniac event" and he replied: "That part of the behaviour would not be typical of parasomnia." Dr.Shapiro was asked to assume he had been sleepwalking when he went upstairs and was asked, "Isn't it likely that he would have beenwoken up during confrontation with the complainant" and he answered, "I suspect he was.

I think that he --- when she screamed, I thinkhe came to in a somewhat confused daze kind of way, and responded to questions somewhat semi-automatically…" Dr. Robert Languille [19] Dr. Robert Languille, C.F.S.

Forensic Toxicologist, gave opinion evidence of projected blood alcohol concentrations, given theconsumption of 10, 15 to 20 or 20 drinks between 7:00 pm and 12:00 am, at 12:00 am and at the time of the incident (approximately 2:50am), as well as an opinion regarding consequent intoxication and possible behavioural impairment at the time of the sexual assault — onthe basis of an elimination rate of between 10 and 20 mgs. of alcohol in 100 mls. of blood per hour. [20] He stated that following the consumption of 10 standard drinks the projected blood-alcohol concentration at 12:00 am would bebetween 196 to 246 mgs. % and 136 to 216 mgs. % at 2:50 am.

Following the consumption of 15 - 20 standard drinks the projectedblood-alcohol concentration at 12:00 am would be between 344 to 546 mgs. % and 284 to 516 mgs. % at 2:50 am. Following theconsumption of 20 standard drinks the projected blood-alcohol concentration at 12:00 am would be between 492 to 546 mgs. % and 432to 516 mgs. % at 2:50 am. He stated that the absolute level of intoxication not only increases with the b.a.c. achieved but also depends onthe individual's tolerance to alcohol.

He concluded by stating that an individual who regularly consumes 15 - 20 drinks a night wouldhave a degree of tolerance and would be expected to show fewer outward signs than a person with less tolerance to alcohol. (See Exhibit13). POSITIONS OF COUNSEL [21] The defence takes the position the defendant's actions were the result of behavior engaged in while asleep that he was notaware of. In other words, his acts were not conscious or censored in any way by the part of the brain that would normally control thosebehaviours.

The defence advanced is non-insane automatism, one form of which is “sexomnia" — a parasomnia which has a sexualcomponent.” Consequently, the issue to be determined is whether he was in a state of automatism at the time of the sexual assault onT.H..

If his actions were not voluntary or the exercise of his conscious will, no criminal act has taken place and the defendant is entitledto be found not guilty on the basis of this common law defence. [22] The Crown maintains that the defendant has not demonstrated on a balance of probabilities that he was in a state of automatismon the night in question while committing the sexual assault. In the alternative, the Crown submits that notwithstanding this assertion ofthe defendant, the Crown has, on all the evidence, proven voluntariness beyond a reasonable doubt.

APPLICABLE LEGAL PRINCIPLES [23] The leading case in this field is R. v. Stone, (SCC), [1999] 2 S.C.R. 290 in which Basterache J. for themajority, defines the elusive concept we refer to as automatism: 155 The legal term “automatism” has been defined on many occasions by many courts. In Rabey, supra, Ritchie J., speaking for themajority of this Court, at p. 518, adopted the following definition of the Ontario High Court of Justice in R. v.

K. (1970), (ON SC), 3 C.C.C. (2d) 84, at p. 84: Automatism is a term used to describe unconscious involuntary behaviour, the state of a person who, though capable of action, is notconscious of what he is doing. It means an unconscious, involuntary act, where the mind does not go with what is being done. 156 The reference to unconsciousness in the definition of automatism has been the source of some criticism. In her

article “Automatismand Criminal Responsibility” (1982-83), 25 Crim. L.Q. 95, W. H. Holland points out that this reference to unconsciousness reveals thatthe law assumes that a person is necessarily either conscious or unconscious. However, the medical literature speaks of different levelsof consciousness (p. 96). Indeed, the expert evidence in the present case reveals that medically speaking, “unconscious” means “flat onthe floor”, that is, in a comatose-type state.

I therefore prefer to define automatism as a state of impaired consciousness, rather thanunconsciousness, in which an individual, though capable of action, has no voluntary control over that action. (Emphasis added). [24] This decision sets the test to be met for automatism as one in which the evidence establishes that the individual had “novoluntary control.” Stone also describes the procedure that should be adopted as well as the factors to be considered in the assertion of adefence of automatism: 171 The law presumes that people act voluntarily.

Accordingly, since a defence of automatism amounts to a claim that one’s actionswere not voluntary, the accused must rebut the presumption of voluntariness. An evidentiary burden is thereby imposed on the

accused. ………. 179 The foregoing leads me to the conclusion that the legal burden in cases involving claims of automatism must be on the defence to prove involuntariness on a balance of probabilities to the trier of fact. [ 25 ] Consequently, the first step is that the defence must establish a proper evidentiary foundation for a defence of automatism ─ the “defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion:” R. v. Stone , supra, para 187 .

The positing of these two requirements in and of themselves is not sufficient to discharge the burden of the defence. “ 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.

In the second step, the trier of fact, in evaluating that evidence, must make a determination as to whether there is sufficient evidence upon which a properly instructed jury could find on a balance of probabilities that the accused acted involuntarily:” R. v. Stone , supra, para 187 . An enquiry as to the foundation and nature of the expert opinion as well as other available evidence is required. The Court in R. v.

Stone offered some guidance on what additional evidence is relevant to the determination of whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities : (1) 190 Corroborating evidence of a bystander which reveals that the accused was uncharacteristically glassy-eyed, unresponsive and or distant immediately before, during or after the alleged involuntary act will also be relevant to the assessment of whether the defence has raised evidence on which a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities….. (2) 191 Another factor which trial judges should consider in assessing whether the defence has raised evidence which would permit a properly instructed jury to find that the accused acted involuntarily on a balance of probabilities is motive.

A motiveless act will generally lend plausibility to an accused’s claim of involuntariness…..Dr. Murphy also noted that if a single person is both the trigger of the alleged automatism and the victim of the automatistic violence, the claim of involuntariness should be considered suspect. I agree that the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question or if the “trigger” of the alleged automatism is also the victim.

On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased; (3) 192 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. [ 26 ] Finally, the leading international authority on the subject of non-insane automatism is Bratty v AG for Northern Ireland

(1963) All E.R. 523 (House of Lords), a case in which Lord Denning stated that automatism exists when the defendant is unable to control his muscles because they acted without the control of his mind. In these circumstances he will not be held blameworthy: (4) …'automatism' - means

an act which is done by the muscles control by the mind such as a person who is not conscious of what he is doing such as

an act done whilst suffering from concussion or whilst sleepwalking. ... . [However] to prevent confusion it is to be observed that in the criminal law

an act is not to be regarded as an involuntary act simply because the doer does not remember it... Nor is

an act to be regarded as an involuntary act simply because the doer could not control his impulse to do it. [ 27 ] As well, it is noteworthy that, in the recent decision of the Ontario Court of Appeal in R. v. Luedecke 2008 ONCA 716 , Doherty J. concluded that a finding of not guilty by reason of automatism brought on by parasomnia should, in most cases, result in a finding of NCR-MD: 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. On a proper application of the principles developed in the Canadian case law, the respondent’s automatism is properly characterized as a mental disorder and should have led to an NCR-MD verdict.

ANALYSIS [ 28 ] While the ultimate burden rests with the Crown of proving every element of the offence beyond a reasonable doubt, I have concluded that the defendant has not established a proper evidentiary foundation for a defence of automatism in accordance with the Supreme Court’s decision in Stone , the leading authority in Canada on the subject. The “defence must make an assertion of involuntariness and call expert psychiatric or psychological evidence confirming that assertion”. The defence therefore must meet the

evidentiary burden of establishing that the facts in combination with the medical evidence support a finding that the defendant had novoluntary control at the time of the assault as a result of having been asleep. This state of automatism known as parasomnia must beproven on a balance of probabilities. [29] To begin this analysis, I will weigh the evidence and make appropriate findings of credibility utilizing the formula in R. v. W.(D.) (SCC), [1991] 1 S.C.R. 742, the leading decision of the Supreme Court of Canada on assessing guilt based on thecredibility of witnesses in a criminal trial.

I have made the appropriate adjustments to the formula to account for the evidentiary burdenon the defendant with regard to the defence of automatism. [30] As Basterache J. pointed out in R. v. Stone, supra,

(5) The weight to be given to expert evidence may vary from case to case. If the expert testimony establishes adocumented history of automatistic-like dissociative states, it must be given more weight than if the expert is simply confirming that theclaim of automatism is plausible. In the former case, the expert is actually providing a medical opinion about the accused. In the lattercase, however, the expert is simply providing an opinion about the circumstances surrounding the allegation of automatism as they havebeen told to him or her by the accused.

Trial judges must keep in mind that an expert opinion of this latter type is entirely dependent onthe accuracy and truthfulness of the account of events given to the expert by the accused. Indeed, in the present case, Dr. Janke, thedefence psychiatrist, qualified his opinion by noting that it was based almost exclusively on the accuracy and truthfulness of theappellant’s account of events: I think that, that when, in offering the [expert psychiatric] opinion, it is, in this circumstance, it’s contingent upon the person beingaccurate in representing what they recall from that event.

There are circumstances where you do have other witnesses who can give yousome supportive evidence, but in this situation, you have to rely on a person. If they’re not telling the truth, then the opinion isworthless. (Emphasis added) [31] In my view, the defendant has not satisfied the evidentiary burden of proving on a balance of probabilities that the sexualassault on T.H. was not a voluntary act, for the following reasons: (

A) The Absence of a Reliable Evidentiary Foundation

(1) First, the expert testimony in this case was not able to establish a documented history of automatistic-like dissociative-state behaviour in the form of sleepwalking, and consequently, the evidence of Dr. Shapiro was, for the most part, simply confirmatoryof the plausibility of a claim of automatism. Second, Daniel McKendrick's evidence at its highest was variable and inconsistent as towhat actually took place. Simply put, I cannot with any degree of confidence and reliability, establish the facts. In the process ofdetermining whether the account of events given by Mr.

McKendrick to the expert was accurate and truthful, I have endeavoured todetermine the number and timing of the drinks he had that night. He first testified that by the end of the night, he “had at least 10 drinksin me.” He later testified that the number of drinks he had at the bar, “Was pretty high and I would say over 15, somewhere between 15and 20”. Dr. Shapiro stated that the defendant told him he was drinking 15 – 20 drinks a day for a month at around that time of theincident and that on that night of the incident he had a maximum of 20 drinks.

It was not clear on the evidence when these drinks wereconsumed, but if the time frame was between 7:00 pm and 12:00 am., according to Dr. Languille, the defendant could have achieved ablood alcohol concentration of between 136 mgs. % and 546 mgs. % by 12:00 am. The variation in potential alcohol levels is such thatno meaningful evaluation of the defendant's level of intoxication is possible.

(2) Equally troubling were the different versions of what he recalled doing during the time frame of the assault. Version 1:Mr.

McKendrick was asked by police if he “went up to her apartment last night.” He said, "I did go up to complain about 8:00 p.m. lastevening, knocked at the door and nobody answered." He stated, “Then I got locked out of my apartment and went in the side door.”Version 2: He testified that he arrived home after midnight and within about 15 minutes he retired to his room and went online: “Maybe20 minutes to an hour before I heard a loud, crashing upstairs”. “It sounded like a pot falling or something being knocked down”. Hetestified, “I got a bit irritated… So I went upstairs to complain. I knocked on the door.

Nobody answered. I went back downstairs torealize that I had locked myself out of my apartment, because it closed behind me and the door locks automatically”. He stated he wentaround through the side door which requires a keypad access. Back in his room he stated that he went back on the computer and fellasleep, “Looking at porn”. The defendant stated that, “The next thing I knew I was in a cop car…" Version 3: Dr. Shapiro quoted thedefendant as stating: "he dozed off, he wakes up feeling cold in the police car at 6:00 a.m.…..my one memory is outside in the coldwithout shoes." Additionally, Dr.

Shapiro's evidence calls into question the credibility of the defendant. The Doctor testified that hebelieved that had Mr. McKendrick been sleepwalking when he went upstairs he would have been "woken up during the confrontation"with the complainant. "I suspect he was. I think that he --- when she screamed, I think he came to in a somewhat confused daze kind ofway…" Mr. McKendrick said he had no memory of this confrontation. Given so many inconsistent versions from which to choose, thefact is that there is no reliably accurate and credible factual foundation on which to base the expert opinion. (

B) The Absence of Relevant Automatistic Factors (from R. v. Stone)

(1) The absence of classic conditions for sleepwalking: It is sheer speculation that Mr. McKendrick achieved the deep sleep that wouldset the stage for a parasomniac episode and was suddenly awakened by some unknown stimulus. According to his evidence, he neverwent to sleep. He testified that the noise he heard upstairs didn't wake him up: "Maybe an animal possibly knocked something over. Iknow that I was still awake." There is no evidence to support the notion that he entered a deep sleep phase from which he was suddenlyaroused on this version of events.

It is highly speculative to suggest that on a different occasion, later on in the morning, the defendantachieved some type of alcohol-fuelled deep sleep from which he was suddenly aroused resulting in a “parasomatic” tour of the upstairsapartment.

(2) The lack of corroborating evidence of bystanders: I have considered the evidence of T.H. who testified that when the defendant was

leaving, he " kept on asking me where he was." “She said he asked me if he was on B[…] Street or Dundas, and I said, “It doesn’t matter. Just get out. I’m calling the cops. Get the fuck out of my house.” T.H. stated: “He seemed like he was a little bit embarrassed and confused.” “I didn’t smell booze on him.” “He didn’t apologize or anything. It didn’t seem like it was a mistake.” While there are aspects of her evidence that may suggest he was lost and confused, and in an altered state of mind, these observations are indistinguishable from intoxication to the untrained eye and must be approached very cautiously.

It was notable that an arresting officer recorded the fact that on arrest “it did appear” the defendant “had been drinking” [alcohol].

(3) The lack of corroborating evidence from medical history : According to R. v. Stone , supra, “evidence of a documented medical history of automatistic-like dissociative states would certainly assist the defence in satisfying a trial judge that a properly instructed jury could find that the accused acted involuntarily on a balance of probabilities.

Furthermore, 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.” In the instant case, Daniel Mckendrick has no history of sleepwalking as an adult and there is no family history of sleepwalking. Between the defendant and his brother, there may have been isolated incidents of parasomatic sexual activity while in bed with their respective partners according to reports collected by Dr. Shapiro, but not a single adult instance of ambulatory parasomnia. According to R. v.

Stone , “the lack of such evidence is also a relevant factor in determining whether this defence burden has been satisfied.”

(4) Evidence of a motive for the crime : According to Stone , supra, the plausibility of a claim of automatism will be reduced if the accused had a motive to commit the crime in question. On the other hand, if the involuntary act is random and lacks motive, the plausibility of the claim of automatism will be increased.

The defendant's acts seemed very goal-oriented: while automatistic situations involving sleepwalking may often involve apparently deliberate and purposeful conduct, it is evident that the defendant’s actions in this case required the exercise of an elaborate spectrum of executive decision-making functions. All of his actions collectively create a picture of an individual who is in possession of his faculties and capable of engaging in fairly complex decision-making.

He left his apartment, went upstairs knowing the door was usually left open, walked from the kitchen area to the bedrooms, began searching, opened the adjoining bedroom door, and after finding no one in that room, he tried the door of T.H.'s bedroom, saw her in bed and entered her bed and started fondling her. There is not much doubt he was awake for the confrontation with T.H. (according to Dr. Shapiro) and awake while outside in his bare feet, then, beginning to masturbate in his room while looking at "porn" before the police arrived. This is quite unlike the circumstances in R. v. Luedecke , supra.

During the sexual assault, Luedecke, "looked like he had woken up from a sound sleep." Later a friend told him that the police were at his home investigating a sexual assault and had taken someone into custody. The accused asked to speak to one of the police officers. He told the officer, “I think I am the perpetrator” and arranged to go to the police station. Mr.

McKendrick, on the other hand, went back to auto-stimulation in his room and told the police that the allegation he had committed a sexual assault was a "lie." Here the crime is not inexplicable: it goes without saying that it could just as well have been nothing more than a product of the human sex drive. While one must be cautious in drawing inferences of motive and recognize that “sexomnia” will inevitably appear to be imbued with a sexual motive, the point being made is that a claim of automatism would be more plausible if the offence committed was random and senseless. (

C) Problematic Aspects of the Medical Opinion

(1) Dr. Shapiro has testified that in giving his name to T.H., and forgetting his shoes and key when he went upstairs, Mr. Mckendrick was not acting like a typical sexual predator: adding up all of these features, he concludes that a parasomniac state was plausible. "So things seem to --- it seems to me from what I read into this situation, it is a bit of reading in, that he was confused at the time as would be typical of a parasomniac." Because intoxication looms so large as a factor in this case, this expert opinion would have been entitled to more weight if Dr.

Shapiro had been able to offer a well-reasoned opinion as to why he was able to read into the situation the parasomniac state to the exclusion of all effects of intoxication.

(2) Second, Dr. Shapiro stated that, "The difference is that the man in court has so many arousals that he can’t get into the deep sleep very much…so if he catches a deep sleep, one has to think, and this is speculative I have to accept , that he is going to have a burst of very deep sleep which might set the stage for the behaviours that are the issues." (Emphasis added). His theory, he admits, is speculative and dependent entirely on the defendant achieving a state of deep sleep. Mr. McKendrick testified he was awake before venturing upstairs.

He recalls being outside in his bare feet so this had to have been the same event during which he touched T.H. and was seen outside immediately after the confrontation, by K.E.. To the extent the defendant's evidence was he was awake before going upstairs, there is no factual basis for the deep sleep theory and the weight attributable to the expert opinion is therefore diminished significantly.

(3) Finally, there is a significant part of the evidence that is inconsistent with the expert medical opinion. Dr.

Shapiro was asked, "if he testified that he had a vivid recollection of going to her apartment and knocking on the door, her not answering and then going back downstairs and noticing that he was locked out, going around the house in his bare feet and back into his apartment, that would not be consistent with a parasomniac event" and he replied: "That part of the behaviour would not be typical of parasomnia." Once again, the actual evidence tends to undermine the weight that would otherwise be attributable to the expert opinion.

CONCLUSIONS [ 32 ] The fact that at times he was exercising poor judgment, or that he was not able to remember all of his actions or that he was not able to control his impulse to enter the bedroom and bed of T.H. ─ are not reasons to regard his actions as involuntary acts as long as he was conscious of what he was doing at the time he was doing it. In my view, a reasonable inference can be drawn from all the evidence that the assault was the culmination of a series of conscious, purposeful, decisions.

In terms of the classical indicia of automatism, what is lacking here is ― a reliable, credible, factual foundation upon which to envision some element of externally-directed propulsion like parasomnia based on force of habit, basic human instinct or a mindless, uncontrollable, compulsion. Unfortunately for the defendant, the evidence in this case leads irresistibly to the conclusion that the sexual assault took place because an intoxicated young man began to look at pornography and subsequently set off on a foolish, impulsive search of the bedrooms upstairs ― in an attempt to find an outlet

for his interests. His position with his penis in his hand in front of a pornographic image on the computer at the time of arrest speaksvolumes. [33] One can readily understand the challenges that defendants have to meet in asserting this defence.

Nevertheless, considering thelegal requirements found in the above-noted case authorities, and having weighed all of the available evidence, I have concluded that ithas not been proven on a balance of probabilities that Daniel McKendrick acted involuntarily in the sexual assault on T.H., and further,that notwithstanding the defence of automatism raised by the defendant, the Crown has, on all the evidence, proven voluntariness beyonda reasonable doubt and Mr. McKendrick will be found guilty of the sexual assault on T.H.. [34] Implicit in this finding is the statutory constraint that directs this analysis.

Section 33.1(1) to (3) provides that self-inducedintoxication is not a defence to a general intent offence involving interference with the bodily integrity of another person. [35] As to the “unlawfully in a dwelling house with intent” charge, in my view, there is a reasonable doubt that as he entered theupstairs apartment, he intended a non-consensual sexual assault.

This entry was completely consistent with his past practice of walkinginto the apartment unannounced, and he could well have been hoping for an encounter with a fully-awake female tenant of the premises.Regrettably, as a result of alcohol consumption, he exercised very poor judgment in accosting the sleeping T.H.. Evidence of intoxicationwhich is not rejected and which tends to show that the accused may not have had the requisite specific intent when he entered theapartment is evidence to the contrary neutralizing the statutory presumption: See R. v. Johnnie (1975) (BC CA), 23C.C.C. (2d) 68 (B.C.C.A.); R. v.

Campbell (1974), (ON CA), 17 C.C.C. (2d) 320 (Ont. C.A.); R. v. Nolet (Charette)[1980] O.J. No. 3027 (Ont.C.A.). In R. v. Campbell, it was held that in respect to the specific intent offence of breaking and entering withintent, there was a reasonable doubt as to whether the accused had the intention to commit the offence as a result of self-inducedintoxication.

In light of all the evidence, in the instant case, particularly the evidence I accept of some level of self-induced intoxication, Ihave concluded there is a reasonable doubt the defendant had the requisite intent and accordingly he is acquitted of “unlawfully in adwelling house with intent.” [36] Finally, I would like to take this opportunity to express my appreciation to both counsel for their thoughtful preparation,presentation and submissions. Justice Peter Harris