Warning: This story contains details related to the sexual assault of a child and may not be appropriate for all readers.
A not-guilty-by-way-of-mental disorder application was dismissed for a Nanaimo man allegedly caught rubbing his genitals against his 19-month-old daughter's buttocks.
The man, who can't be identified due to a publication ban, stood trial in B.C. Supreme Court in Nanaimo in Jan. 2023, with Justice Joel Groves finding him guilty of sexual assault, sexual interference of a person under the age of 16 years and possessing child pornography in April 2023. However, the man's defence counsel, Ben Lynskey, stated his client was known to sleep-walk and perform actions when semi-directed and awakening, seemingly with little memory of what transpired – actions included masturbating.
Lynskey made the application and requested a report to assess whether there were other factors that could've lead to the man's actions, which was granted. Details were provided by Groves Thursday, Oct. 3 at the Nanaimo courthouse.
Based on assessment by Dr. Rakesh Lamba, person in charge of B.C. Mental Health and Substance Use Services, the man was diagnosed with chronic insomnia, with certain sleep arousal disorders, including the potential for sexsomnia, engaging in sexual acts while sleeping, with amnesia being a characteristic of diagnosis. Episodes can be triggered by insomnia and stress, which Groves said the man and his family were experiencing at the time.
While Lamba said the court could find the man not criminally responsible by way of mental disorder if the man had not remembered the incident, Groves noted that he provided details directly related in a statement to police.
The man had stated his child had fallen off the couch and he picked her up. He said he noticed her diaper was wet and changing her. He noted wanting to use his cellphone light to see better and possibly hitting the video-record button in the process. Further the man made the statements voluntarily to police, said Groves.
As such, the judge found there was no basis for a declaration of the man not being criminally responsible by way of mental disorder.
A date for sentencing is expected to be set on Nov. 18.
Groves had thrown out a charge of making or publishing child porn.
