Justice Watch: Justice Ayla Akgungor acquits Alberta man after accepting 'sexsomnia' defence in sexual assault trial
Justice Ayla Akgungor found there was a reasonable possibility the accused was suffering from a non-REM parasomnia, a sleep disorder that can include unconscious sexual behaviour during sleep.
An Alberta judge has acquitted a man charged with repeatedly sexually assaulting his then-wife while she slept, ruling the Crown failed to prove beyond a reasonable doubt that he acted consciously or intentionally because he was likely experiencing a sleep disorder known as sexsomnia.
In a July 17 decision, Justice Ayla Akgungor of the Alberta Court of King's Bench found there was a reasonable possibility the accused was suffering from a non-REM parasomnia, a sleep disorder that can include unconscious sexual behaviour during sleep.
The man, identified only by his initials due to a publication ban, acknowledged that the incidents described by his former wife occurred but testified he had no memory of them.
"I am satisfied that there was a reasonable possibility that (the accused) may not have been fully conscious during the incidents in question such that his conduct was intentional," Justice Akgungor wrote. "I am not satisfied beyond a reasonable doubt that the Crown has established that (he) had the requisite intention... required to establish the mens rea element of sexual assault."
The complainant testified that between July 2018 and October 2019, she was awakened numerous times by unwanted sexual contact while the couple shared a bed. She described incidents involving vaginal, anal and digital penetration and told the court the assaults occurred three to five times per week over a period of roughly four months.
She said she repeatedly confronted her husband the following morning, but he consistently claimed to have no recollection of what had happened. The couple later attended counselling together, where he apologized for the harm she described while maintaining he had no conscious awareness of the incidents.
After the couple separated in 2022, the woman reported the alleged assaults to RCMP while seeking custody of their children.
The defence relied on medical evidence indicating the accused suffered from a non-REM parasomnia. Although the accused referred to the condition as "sexsomnia," his physician used the broader medical diagnosis. The court also heard from the man's current girlfriend, who testified she has experienced similar episodes while sharing a bed with him. She said he appeared to be deeply asleep during the incidents, with his eyes closed and breathing heavily, and would stop the touching immediately if she rolled him away.
Justice Akgungor accepted that evidence raised a reasonable doubt about whether the accused's actions were voluntary.
Under Canadian criminal law, the Crown must prove not only that the prohibited act occurred but also that the accused acted voluntarily and with the required criminal intent. Where credible evidence establishes a reasonable possibility that an accused was acting unconsciously due to automatism or a recognized sleep disorder, an acquittal may follow because the necessary mens rea has not been proven.
The ruling adds to a small but growing number of Canadian criminal cases in which defendants have successfully relied on sexsomnia or related parasomnia disorders as a defence to sexual assault charges. Courts have generally required strong medical evidence before accepting the defence, and each case turns on its own facts.
Sheila Gunn Reid
Chief Reporter
Sheila Gunn Reid is the Editor-in-Chief, Alberta Bureau Chief, member of the board of directors, and host of The Gunn Show at Rebel News. Sheila also serves as President of the Independent Press Gallery of Canada. A mother of three and longtime conservative activist, Sheila is the author of bestselling books, including her most recent release, Independence Blueprint: What Alberta Can Learn From Quebec.
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