Woman ‘not criminally responsible’ for impaired driving due to parasomnia: Hamilton court

A HAMILTON COURT has found a woman not criminally responsible for drunk driving because she was in the throes of parasomnia.

The 48-year-old was spotted driving erratically on the Lincoln Alexander Parkway and was arrested on Fennell Avenue East one early morning in July two years ago.

“The female operator was staring straight ahead,” a judge’s recent written decision noted. “When asked to exit the vehicle, the female stumbled and almost fell down.”

However, court later heard, the woman didn’t recall the entire episode because she had been sleep-driving.

“She fell sleep and that is the last thing she remembers. Her next recollection is in the

holding cell in the police station,” Justice George S. Gage wrote in a decision released in May.

“She states that she did not voluntarily consume alcohol on July 7 or 8 and she did not voluntarily operate her motor vehicle.”

Parasomnia causing automatism — meaning actions are not voluntary — is a rare, but not unprecedented, defence in criminal cases.

They don’t always lead to acquittals, however.

Last year, for example, a 30-year-old Beamsville man who struck and killed a 31year-old St. Catharines man on the QEW was found guilty of criminal negligence causing death in spite of his sleep-driving defence.

Ryan Quatsch had alcohol, cocaine and marijuana in his blood when he drove his pickup truck the wrong way down the QEW and hit Greg Morley near Fifty Road in October 2014.

Defence lawyer William Trudell told Justice Marjoh Agro sleep-driving was a “very significant factor that is not present in other cases.”

Agro agreed parasomnia was a “major contributing factor” to the deadly crash, but noted Quatsch knew his disorder could be exacerbated by drugs and alcohol.

That’s why his decision to drive “showed a wanton or reckless disregard for the lives of safety and other drivers,” the judge wrote.

Quatsch was sentenced to three and half years in prison in April 2016.

In another recent fatal drunk-driving case, a judge rejected a 34-year-old New Tecumseth man’s parasomnia defence and sentenced him to six years in prison.

Marcello Fracassi had returned from a rock concert in Toronto when he got behind the wheel of his pickup truck while drunk. He hit two municipal workers painting lines on a street in Alliston around 2:50 a.m. on June 20, 2014. One worker died of his injuries.

“To be clear, ‘sleep-driving’ is not the same thing as falling asleep at the wheel,” Justice Cary Boswell stated.

In his written decision last September, Boswell added: “I suspect the average person on the street may be incredulous about the concept of sleep-driving. But there is clear evidence that it does happen, though rarely.”

Dr. Colin Shapiro, a Toronto-based psychiatrist who specializes in sleep disorders, said a low estimate of parasomnia’s reach in adults is three per cent while the disorder affects 15 per cent of children.

“The reality is there are very few legal cases that deal with it,” he said.

Shapiro noted a Supreme Court decision in 1992 to acquit an Ontario man who killed his mother-in-law and injured his father-in-law after the defence argued he’d been sleepwalking is held up as a landmark case.

The judge ruled the attacker experienced “non-insane automatism,” and wasn’t affected by a “disease of the mind” in legal parlance, which would have led to a verdict of not guilty by reason of insanity rather than acquittal.

That distinction presents a “fine line” for defence lawyers to walk, said Shapiro, who has given expert testimony in parasomnia cases.

In the Hamilton case, court heard the 48year-old woman had started experiencing parasomnia in her teens.

“During that time it was reported to her by her parents and brother that she would get up in the middle of the night and binge on food and leave a mess in the kitchen. She had no recollection of doing this,” Gage wrote in his decision.

The episodes were brought on by stress and anxiety.

Leading up to the July 2015 incident, she had been separated from her husband, didn’t have custody of her children and was on stress leave from work.

The judge agreed she had a “pre-existing disposition” to such episodes.

Moreover, Gage added, it made no sense for her to drink in the early morning and show up impaired for work, which had been causing her anxiety.

“These circumstances suggest that the criminal conduct is not explicable in the absence of a state of automatism.”

She would get up in the middle of the night and binge on food. JUSTICE GEORGE S. GAGE

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