Toronto criminal lawyer Graham Clark says the case of a man who has been granted a new trial after arguing he sexually assaulted a sleeping woman while he was also asleep is extremely unusual and will hinge on whether the defence can establish that the accused suffers from parasomnia and is not criminally responsible by reason of a mental disorder.
“This defence is quite uncommon, not surprisingly because, as the experts agree, the condition itself is uncommon,” he tells AdvocateDaily.com.
In R. v. Hartman, 2015 ONCA 498 (CanLII), Ontario’s Court of Appeal ordered a new trial for the accused but restricted the hearing to a determination of whether he is not criminally responsible by reason of a mental disorder or that he is guilty of the crime.
“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,” says the court’s decision.
The full pice quoted above can be found here: Alleged ‘sexsomniac’ granted a new trial.