A 46-year old Montrealer accused of sexually assaulting a friend was found not criminally responsible for his actions after Court of Quebec Judge André Perreault found that he suffered from the rare disorder of sexsomnia, a defence that is seldom successful.
The episode of sexual somnambulism constituted an “automatism,” or an act committed during a state of unconsciousness or grossly impaired consciousness, but “with mental disorder, in the legal sense of the term,” held Judge Perreault, whose verdict neither acquitted nor convicted Yannick Giguère.
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“No one questions” that the complainant was a victim of sexual assault, added Judge Perreault, but it was equally clear that the evidence established that Yannick Giguère suffered from a mental disorder. Besides expert evidence from psychiatrists, Giguère’s ex-wife testified at trial that over the six years of their relationship, there were about 15 episodes of sexsomnia.
But Judge Perreault found that Giguère nevertheless poses a risk to the public given that he has had several episodes of sexsomnia. Giguère’s fate now lies with the Mental Disorder Review Board (Commission d’examen des troubles mentaux). The Board may decide to keep Giguère in a psychiatric institution, release him or release him under certain conditions such as requiring him to take medication.
Giguère will also be placed on the sex offenders’ register for 20 years and will have to provide a DNA sample.
Sexsomnia, listed in the Diagnostic and Statistical Manual of Mental Disorders (DSM) as a variation of a sleep disorder, is an infrequently invoked, and even more rarely, successful defence. According to legal database CanLII, the issue has been dealt by the courts in at least two dozen criminal cases since 2005, with several leading to retrials or findings of not criminally responsible a handful of times.
Following the Supreme Court of Canada’s decision in R. v. Stone [1999] 2 S.C.R. 290, the courts have imposed a very strict regime in using the defence. In Stone, the Supreme Court refined the concept of automatism and sleepwalking, finding there were two forms of automatism recognized at law.
One involves non-insane automatism, and it arises where involuntary action does not stem from a disease of the mind. Under these circumstances, the accused is entitled to an acquittal. Insane automatism, on the other hand, arises only where involuntary action is found, at law, to result from a disease of the mind and is subsumed by the defence of mental disorder. A successful defence of insane automatism will trigger s. 16 of the Criminal Code and result in a verdict of not criminally responsible on account of mental disorder.
The Ontario Court of Appeal has looked at sexsomnia several times, the latest being in 2021, the subject of a publication ban. But in a 2008 case in R. v. Luedecke 2008 ONCA 716, the Appeal Court shifted the characterization of sexsomnia from being strict non-insane automatism, where an individual would receive an acquittal, to one of mental disorder automatism.
“The expert evidence (in Luedecke) seems to suggest sexsomnia is something part of your neuropsychological makeup, so that doesn’t make it an external event,” said Lisa Silver, a law professor who teaches criminal law at the University of Calgary. “That means it is more likely to go through the mental health system, and therefore more likely to be a finding of not criminally responsible than an acquittal.”
Judge Perreault, concerned that wrongdoers may resort to the use of sexsomnia as a defence in light of his ruling, warned that “would-be assailants would be ill-advised to commit a sexual assault in the hope that, on the basis of the result in this case, he could avoid conviction by inventing sexsomnia.” On the contrary, said Judge Perreault. His ruling will ensure that “guilty people will not get away with it.”