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

The Hamilton Spectator - - FRONT PAGE - TEVIAH MORO

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

tmoro@thes­pec.com 905-526-3264 | @Te­vi­ahMoro

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