This week’s top three summaries: R v DW, 2026 ABKB 519: #sleepwalk sex , R v Samandari-Matof, 2026 ABCA 55: #possession, R v Olafson, 2026 ABCJ 92: 11(b) court #overbooking

R v DW, 2026 ABKB 519

[July 17, 2026] Sexual Assault Voluntariness: Sleepwalking [A.K. Akgungor J.]

AUTHOR’S NOTE: Voluntariness is an essential element of every criminal offence. Although often discussed alongside actus reus and mens rea, it is analytically distinct: the Crown must prove that the accused’s conduct was the product of a conscious and voluntary act. If voluntariness is left in reasonable doubt, criminal liability cannot be established.

In prosecutions for sexual assault, a general intent offence, an accused who alleges automatism will ordinarily require expert evidence to establish that they were acting in an involuntary state. Expert psychiatric or sleep medicine evidence is typically necessary because automatism involves matters beyond the ordinary experience of judges and juries.

More recent cases, however, recognize that this is not an inflexible rule. Where there is compelling evidence of a long-standing history of parasomnia or sleepwalking-like behaviour, together with factual circumstances strongly consistent with an episode of automatism, the issue of voluntariness may arise even in the absence of expert opinion. The focus is on whether the evidentiary foundation is sufficient to raise a realistic issue that the accused was acting unconsciously rather than voluntarily.

Here, there was substantial background evidence supporting the existence of a genuine sleep disorder, including a documented history of family concern and medical consultations predating some of the alleged offences. In addition, the nature of the alleged sexual conduct—occurring in the middle of the night in a manner suggestive of someone not fully conscious—was capable of supporting the inference that the accused was experiencing a parasomniac episode rather than acting deliberately.

The decision illustrates that, while expert evidence remains the norm in automatism cases, a sufficiently compelling combination of documented medical history and conduct objectively consistent with sleepwalking or a related parasomnia may provide an adequate evidentiary foundation to put voluntariness in issue. Where that foundation exists, the Crown must still prove beyond a reasonable doubt that the accused’s actions were voluntary.

[1] DW is charged with one count of sexual assault against his former wife, KH….

[2] The Crown relied on the evidence of KH. The defence called as witnesses DW, DW’s family physician and DW’s current girlfriend, KB.

II. Evidence

(a) Background and surrounding evidence

[5] DW and KH married on July 28, 2013 and separated on November 1, 2022. They have two sons together. DW and KH lived in a small town in Alberta for about 10 years. They moved into their last residence in that small town in 2017, and then moved to another town in late May/early June, 2022.

[8] KH testified that, on several occasions, in the latter half of 2018 and into 2019, she was awoken in the night as a result of DW engaging in sexual acts with her while they were both in the marital bed. She described incidents of vaginal, anal and digital penetration. All incidents occurred in the master bedroom in their home. No incidents occurred after they moved near Olds.

[9] DW testified that he has no independent recollection or awareness of the events in question. As DW has no memory or awareness of these events, he did not testify as to the circumstances of the alleged sexual acts. I will describe KH’s description of these events in further detail below.

[10] KH and DW agree that on at least 6 occasions after the sexual acts occurred in the night, there were discussions the next morning about what had happened the night before. KH would describe to DW what had happened and DW would respond that he had no recollection of doing those things and was entirely unaware of the incidents.

[11] As a result of her growing concern about the incidents, KH spoke to her therapist about what was happening. At some point in 2019, DW and KH attended at her therapist’s office together to discuss what was happening.

[14] Similarly, KH made an appointment for her and DW to see DW’s family doctor. The family doctor confirmed that KH and DW attended at her office on October 25, 2019. The doctor testified that DW presented with complaints that he had been engaging in sexual activity with his wife while sleeping and on one occasion he had grabbed KH by the shoulders but he had no recollection of these things occurring. The family doctor confirmed that KH was with DW during this appointment. At the end of the appointment, a plan was made for DW to do a sleep study and lab work to look for causes of his presenting complaints.

[16] DW acknowledged that he was not prescribed any specific treatment after the results of the sleep study. DW further acknowledged that he did not put together a sleep plan, and continued drinking energy drinks and alcoholic beverages although he probably slowed down on the alcoholic

[17] During his testimony, DW testified that his understanding was that he had been diagnosed by his family doctor with “sexsomnia”. However, the family doctor confirmed “for sure” that the term “sexsomnia” was never used during either of the October 25 or November 29, 2019 appointments with DW. The family doctor only used the term non-REM parasomnias. The family doctor did not see DW for any sleep-related issues after 2019. There is no evidence before the Court of any medical diagnoses for DW related to his sleep or otherwise.

[18] By the summer of 2022, the relationship between KH and DW had deteriorated significantly. They decided to separate in September 2022 although they both remained in the home until DW moved in with his parents at the beginning of November 2022. DW and KH were not able to co-habit by this point. Both described the separation as a mutual decision and both agree that their relationship had turned very toxic and hostile by this point.

[19] An incident occurred in early November 2022 when DW went on a dinner date in Red Deer. KH began texting him, phoning him and leaving multiple voice mails while he was on this date. KH was very upset and may have told DW that he had just made the biggest mistake of his life and that their family was over. She asked him how he was going to pay for dinner as she had just drained their joint bank account. KH acknowledged draining their joint bank account but indicated that she returned the funds shortly thereafter. DW did not respond to her texts at that time.

[20] ….While he was there, KH was texting him and saying that she was done and that he could have the kids and the house and she was leaving. She was very emotional so DW’s plan was to go back to the home, get the kids and let KH have some space.

[21] DW went to get the boys on December 29, 2022 and told KH to take her time to figure things out and to go and spend some time with her brother in Calgary. The next day, KH told DW that she wanted the boys to come to Calgary. On December 30, 2022, KH came to the house and demanded the boys. DW wanted to have a conversation with KH before he let the boys go. KH called the RCMP but they did not come so she went to the RCMP detachment in Olds.

[22] KH met with Constable Bear of the RCMP on December 30, 2022. Her evidence was that she attended at the RCMP station in order to get assistance in retrieving her sons. However, in response to a question from Constable Bear, KH also disclosed the incidents of sexual assault that arose in 2018 and 2019. She gave two statements to Constable Bear on that date, one at 10:24 a.m. and one at 13:54 p.m. The second statement was focused on the allegations of sexual assault.

(b) Incidents giving rise to the charge

(i) The First Incident

[27] The first time there was an incident between DW and KH, KH described how she was asleep in master bed, next to DW, sleeping on her right side and facing away from him. She woke up to him using two fingers on his left hand to penetrate her vaginally. He was moving his fingers back and forth as if trying to stimulate her. DW was lying behind her at this time.

[28] She had worn underwear, loose fitting shorts and a t-shirt to bed that night and DW had pulled her underwear and shorts down to her upper thighs. When she realized what was happening, KH stayed still. She testified that she tried to absorb the reality of what was happening. She estimated that DW’s fingers were in her vagina for a minute, maybe two, after she woke up. DW then withdrew his fingers. Nothing was said between them at this point.

[29] When the incident was over, KH remained in bed, pulled up her underwear and shorts and waited for DW to fall asleep, which he did. She also tried to fall back asleep. KH did not consent in any way to this touching nor did she want the touching to happen.

(ii) The Second Incident

[31] The second incident occurred the night after the first incident. As with the First Incident, KH was sleeping on her side and DW was behind her. She woke up to him reaching inside her pajama bottoms and trying to insert his fingers in her vagina. She initially recalled feeling a fussing with her pajama bottoms. KH turned her hips away, the way a person might if they were still sleeping but responding to being touched by turning away or fussing in the night. She did this to gently let DW know that she wasn’t interested without having to have a conversation about it.

[32] Because she had turned away and began pulling away as he trying to access her vagina, no digital penetration occurred during this instance. She was trying to give the impression that she was still asleep and her sleep was being disturbed by his actions. As soon as her movement ceased in response to his attempt to insert his fingers in her vagina, DW made a second attempt to reach his hand into her bottoms, with slightly more of an effort this time. KH again turned away, more onto her stomach and bent her knee so that she turned even further away from DW.

[33] Nothing was said between them during this instance. At no point did KH consent to this touching or communicate to him that she wanted to be touched in this manner.

(iii) Incident of penile-anal penetration

[35] KH described another incident which would have occurred approximately two weeks after the First Incident. KH indicated that she sleeps on her stomach with her arms up under her pillow. On this occasion, she woke up to DW straddling her, on his knees with one leg on either side of her and removing her shorts and underwear. He was leaning forward with an erection trying to penetrate her. It happened so quickly that he did succeed in penetrating her anally, at which point she awoke more fully and was able to stop the action from continuing further.

[36] These actions were very alarming and frightening to KH. Having gone through the prior incidents of unwanted sexual contact during the night, she was prepared on this occasion to react verbally. KH testified that she pushed herself up away from the bed and started turning away and used her right hand to push him away. As she was pushing herself away, she stated along the lines of “what the hell are you doing?” In response, DW retreated, turned over to his side of the bed and proceeded to go to sleep as if nothing had happened.

[37] There was no conversation that night about sexual activity or consenting to the same. KH did not want the activity to occur and stated that nor could she have consented while she was asleep.

[38] The following day, KH spoke to DW and let him know that she did not appreciate what was happening and that what had occurred the night before was “beyond worse” than the prior incidents. DW’s response continued to be that he had no awareness of any such thing happening. He expressed something along the lines of that is a shame that that is happening and gave the impression to KH that he wished that there was more he could do but that he couldn’t do anything about something that he was not aware of.

(iv) Incident of penile-vaginal penetration

[39] KH recalled a further incident where DW penetrated her vaginally in a very similar fashion as the incident involving anal penetration where he straddled her from behind when she was sleeping on her stomach. She awoke to being penetrated vaginally. She could not recall what had occurred with her clothing in this incident or how it had been removed.

[40] The incident stopped in a similar fashion to the incident involving anal penetration. She turned away and cursed at DW. This time, he said something like “oh” in response and then turned away and returned to his side of the bed.

[43] After the two incidents of penile penetration and KH not wanting to risk being subject to that experience anymore, she testified that, at some point, she began sleeping regularly in the spare bed. She was concerned at the time, however, about questions the children might have or thoughts that might go through their mind about their parents not sleeping in the same bed.

(v) Incident post-therapy session

[46] KH was sleeping on her right side. DW came into the room, closed the door, went to his side of the bed and undressed himself. He climbed into bed and got under the covers. DW placed himself immediately behind KH and she recalled feeling his breath on the back of her neck. He then immediately tried to lower her pajama bottoms by pulling them down from her waist.

[48] At this point she stated that she had had entirely enough and decided she would no longer sleep in the same bed as DW. She stood up out of bed, turned towards the bed, grabbed her pillow off the bed and said to DW, “You weren’t sleep walking that time, were you?”. DW did not say anything in response and she left to go sleep in the spare bedroom.

[104] In the circumstances set out above, I do not find that the inconsistencies or differences in level of detail between KH’s account to Constable Bear and her account in Court detract from her overall credibility or reliability.

[111] Accordingly, I find that KH’s credibility is not impacted or diminished by any motive to fabricate or to embellish. I am cognizant here that the absence of a motive to fabricate does not automatically enhance a witness’ credibility or mean that the witness’s evidence is automatically truthful. The absence of evidence of a motive to fabricate is only one factor to be considered in the overall assessment of credibility. Here, I find that KH’s credibility is not diminished by a motive to fabricate.

(iv) Conclusion regarding the assessment of KH’s evidence

[121] Accordingly, while KH’s evidence was perhaps imperfect, I find, as outlined above, that it was nonetheless both credible and reliable. I am not left in any reasonable doubt as to whether the sexual touching occurred as she described. Accordingly, I accept her evidence and find that the incidents of sexual activity occurred as she described in her evidence.

[123] Indeed, DW appears to concede that if the evidence of KH is accepted, the actus reus of sexual assault is made out. Having found that the actus reus of sexual assault is made out, I turn now to an assessment of the mens rea element of sexual assault.

(c) Mens rea of sexual assault

[125] The manner in which this case has been argued raises interesting questions about the intersection of voluntariness and intention. It is this intersection which leads to the question of whether evidence that DW may have been sleeping or appeared to be sleeping can, to use the words of the Crown, rise to a defence under the mens rea element of intent rather than as usually applied under the actus reus element of voluntariness.

[126] I find the decision of R v. E.A., 2020 ONSC 3569 to be instructive in this regard. The trial judge in E.A. was satisfied, as I am in this case, that the sexual touching occurred as alleged by the complainant. The issue in E.A. was whether or not the touching was intentional touching. The trial judge ultimately concluded that the complainant’s evidence that the accused appeared half asleep or asleep and that he appeared confused in and around the time of the sexual touching left her with reasonable doubt that the touching was intentional.

[127] The acquittal was appealed to the Ontario Superior Court of Justice. The Crown argued that the trial judge effectively found that the accused was asleep or acting in an automatic state. The Crown argued that this was an error because the criteria set out in Stone for a defence of automatism were not met. In dismissing the appeal, the Court found that the central issue in the trial was whether the Crown had proven beyond a reasonable doubt that the touching alleged by the complainant was intentional. The Court found that the case was not argued by either party before the trial judge as a sleepwalking or automatism case. Accordingly, the trial judge did not make findings that involved sleepwalking or automatism. Rather, she simply was not persuaded beyond a reasonable doubt that the touching was intentional.

[128] The Court in E.A. went on to provide helpful commentary on the distinction between the circumstances of that case and cases involving automatism. It stated as follows at paras. 32-33:

[32] With the greatest of respect to the arguments advanced on appeal by Crown counsel, this case is not like cases involving automatism, such as R. v. Parks, [1992] 2 S.C.R. 871, 1992 CanLII 78, R. v. Stone, [1999] 2 S.C.R. 290, 1999 CanLII 688, R. v. Luedecke, 2008 ONCA 716, or R. v. Hartman, 2015 ONCA 498. In each of those cases, the nature of the act at issue was such that the inference that the act was volitional or intentional was almost inescapable, absent some explanation (i.e., expert evidence in relation to automatism). In Parks, the defendant drove 23 kilometres, and then stabbed and beat his in-laws, killing one of them. In Stone, the defendant stabbed his wife over 40 times. Similarly, in cases where so-called “sexsomnia” has been advanced as a defence, the acts alleged appeared on their face to be volitional or intentional, and for that reason, the defence required evidence of parasomnia to raise the issue of lack of intention or lack of voluntariness (the sexual assault alleged in Hartman was an act of anal intercourse. The sexual assault alleged in Luedecke was an act of sexual intercourse).

[33] What is clear from these cases is that where an act by a defendant is one that a trier of fact would infer was volitional or intentional from the nature of the act itself (for example, due to its complexity, or being carried out over an extended period of time), if a defence akin to automatism is raised, then expert evidence will be required, and a court will be required to engage in the type of analysis described in cases such as Stone, including the reverse onus on the defence. This is because the law presumes people act voluntarily or intentionally, where, because of the nature and circumstances of a particular act, the act at issue appears intentional. However, where the evidence about a particular act and the surrounding circumstances is not such that a particular act appears intentional, the automatism analysis is not engaged.

[129] As was the case in E.A., this case was not argued as an automatism case. To this extent, the defence is not raising a defence to the mens rea element of sexual assault. The defence simply asserts that the Crown has not met its burden of proving intention beyond a reasonable doubt. Based on the analysis in E.A., I accept that this argument is open to the defence where the case was not argued as an automatism case.

[133] With respect to First Incident, KH did not engage specifically with DW. She froze, waited until the incident was over and then went back to sleep.

[134] With respect to the Second Incident, she spoke to him the next morning after it occurred and he insisted he was unaware of anything that she was describing having taken place over the two nights prior and he offered a shrugging suggestion of “I must have been in a very deep sleep.”

[135] With respect to the incident of penile-anal penetration, KH testified that she pushed him away and cursed at him and asked him “What the hell are you doing?” She described him as simply retreating from straddling her, turned over to his side of the bed and proceeding to go to sleep as if nothing had happened.

[136] With respect to the incident of penile-vaginal penetration, she again pushed him away and cursed at him. This time, he said something and it wasn’t a great deal of words. He said something like “oh”, and again turned away and returned to his side of the bed.

[137] When asked if she had any specific memory about him responding to her pushing him away or speaking to him, KH testified that at most, it would be something to the effect of “oh, and just like a nonverbal sort of grumbling as he turned towards his side of the bed to return to sleep.”

[138] KH agreed under cross-examination that she could not be sure that DW was awake while the incidents were happening because she was asleep and there would be no way for her to know.

[140] KH also denied rolling over and seeing DW’s eyes closed during the sexual acts. She testified that she would roll over and try to look at DW in the dark after he would retreat to his side of the bed trying to evaluate this excuse he had made many times of taking these acts in his sleep.

[144] I accept the Crown’s characterization that the sexual activity in question consisted of relatively complex acts with multiple moving parts. To this extent, the Crown argues that these must be intentional acts. I confess that there is at least a facial appeal to this argument. However, I take guidance again here from the words of the trial judge in E.A., where she stated at para 19:

I accept that the touching was consistent with being intentional, but that is not the end. I must be satisfied beyond a reasonable doubt which means if there is another reasonable possibility that it was not intentional then the defendant must be acquitted.

[145] The question I am then left with is whether the evidence outlined above by the defence raises the reasonable possibility that at the time of the touching DW was asleep or half asleep and therefore these acts were not intentional and he did not have the intent to what he did.

[146] Ultimately, I am satisfied that there is evidence to demonstrate at least some reasonable possibility that DW’s state of mind was not such that he could have formed the requisite intention to commit sexual assault. While KH was adamant in her view that DW could not have been sleeping at the time, her descriptions of his responses and actions during the incidents of sexual touching were largely consistent in that he would not engage with her except to respond with “oh” or to grumble something non-verbal and then he would go back to sleep on his side of the bed and act like nothing had happened.

[147] In my view, this lack of engagement and grumbling response appears more consistent with someone who is still sleeping or has been partially roused from a sleeping state. KH testified that in response to the penile-anal penetration and penile-vaginal penetration incidents that she pushed DW away. Had DW been fully conscious at these times, it seems more plausible that he would have responded in some way to the push. However, his responses do not appear to be consistent with someone who was alert.

[150] I do not accept KH’s contention that she went with DW to see his family doctor so that she could call him out in a lie with respect his assertion that he had no recollection of or was sleeping during the incidents of sexual touching. At the time they attended at DW’s family doctors office, KH conceded that cared for DW and believed that she felt love for DW. In my view, it is much more plausible that the visit to the family doctor was motivated out of a genuine concern to get to the bottom of why these issues might be occurring in DW’s sleep.

[151] I have also considered DW’s evidence that he has no memory of the incidents in question. On the one hand, this might be viewed as self-serving evidence, but in my view, DW was very fair and forthright in his testimony when he indicated that he did not disagree with or dispute KH’s testimony as to the events that had occurred. He did not deny they had occurred either. He was simply unable to recall the events which is consistent with the possibility that he was not fully conscious during incidents in question.

[152] In the circumstances, I am satisfied that there was a reasonable possibility that DW may not have been fully conscious during the incidents in question such that his conduct was intentional. This means that I am not satisfied beyond a reasonable doubt that the Crown has established that DW had the requisite intention to touch KH as is required to establish the mens rea element of sexual assault.

[153] A similar conclusion was reached in E.A. and also in R v J.B., 2022 NLSC 14. In J.B., the complainant awoke on two occasions and found her underwear pulled down past her knees and the accused’s hands on her pelvic bone and buttocks. The complainant conceded that the accused may have been sleeping when he made groaning noises while in bed and that she did not turn around to confirm if the accused was awake or asleep. On this basis, the Court was unable to rule out the possibility that the accused was sleeping at the time of the incidents and he was acquitted of sexual assault.

[156] However, the purpose of a sexual assault trial is ultimately to determine whether a criminal offence has been committed. The law requires that I be satisfied that DW is guilty beyond a reasonable doubt and in this case I am not so satisfied. As a result, I must find him not guilty.

R v Samandari-Matof, 2026 ABCA 55

[February 24, 2026] Possession: Access to a House [Reasons by Woolley J.A. with Anne Kirker and Dawn Pentelechuk JJ.A. concurring]

AUTHOR’S NOTE: Access to a residence, without more, is insufficient to establish possession of drugs found within the home. While access may be a relevant circumstance, it does not prove the essential elements of knowledge and control beyond a reasonable doubt.

This principle applies with particular force where the residence belongs to an estranged spouse or former partner. The fact that an accused retains access to the home or has a continuing connection to it does not permit the inference that they possess everything found inside. The Crown must establish a meaningful nexus between the accused and the specific contraband.

Here, there was evidence connecting the accused to drug trafficking activity and evidence that the accused had access to the estranged spouse’s residence. However, those facts did not establish that the accused knew of, or exercised control over, the drugs found inside the home. Access to the premises created an opportunity for possession, but opportunity alone is not possession.

The Court emphasized that possession cannot be inferred simply because an accused could have accessed the location where drugs were discovered. In the absence of evidence linking the accused to the drugs themselves, the Crown failed to prove the requisite knowledge and control beyond a reasonable doubt. Accordingly, the evidence was insufficient to establish possession.

[2] The appellant and his childhood friend Ali Ayyazi had been subject to 54 hours of police surveillance over a 30 day period. The police observed the appellant and Mr. Ayyazi engaging in activities consistent with drug trafficking. In the course of that surveillance, they also observed the appellant visiting his estranged wife’s home in Valley Ridge on a daily basis. The appellant engaged in yard work at the Valley Ridge home, came and went from the home even when his estranged wife’s car was absent, and spent time there with the children and walked the dog.

[3] The police ultimately executed search warrants on the vehicle and home of Mr. Ayyazi, and on the appellant’s vehicle and the Valley Ridge home. Drugs, drug paraphernalia and firearms were discovered in Mr. Ayyazi’s home and vehicle. Nothing was found in the appellant’s vehicle. The 596 grams of cocaine, along with drugs used to cut cocaine, firearms and drug paraphernalia, were found hidden in the Valley Ridge home.

[4] The main issue at trial was whether, based on the circumstantial evidence, the Crown had proven beyond a reasonable doubt that the appellant had constructive possession of the cocaine, which required “proof of knowledge, consent, and a measure of control on the part of the person deemed to be in possession”: R v Lehner, 2020 ABCA 248 at para 14.

[5] The trial judge found the Crown had discharged its burden. The surveillance evidence reasonably supported the inference that the appellant was engaged in drug trafficking. She rejected the appellant’s evidence providing an innocent explanation of his activities as implausible and unbelievable. She found that he had a “substantial amount of control” over the Valley Ridge home, given his attendance at the home and the presence of his passport and dated mortgage document for another property. She further found that his knowledge and control of the drugs could be inferred from that control, her inference that he had engaged in drug trafficking, the presence of drug paraphernalia in the home and the quantity of drugs. She made these findings even though the appellant had no clothes or other personal items at the home, was not established to have a key to the home, had a different residence listed on his identification, was never observed spending the night at the home and no physical or forensic evidence otherwise linked the appellant to the drugs or other items found in the home.

[9] The trial judge’s conviction of the appellant cannot stand. While we agree with the appellant that the trial judge’s determination of substantial control was problematic given the evidence demonstrating that he lived elsewhere and the limited surveillance evidence, we do not need to determine whether the trial judge erred in that respect. The errors made in applying Villaroman are determinative.

[10] The connection between the Valley Ridge home and the appellant’s estranged wife provided a sufficient evidentiary basis to ground a reasonable alternative inference that she had control over and knowledge of the cocaine. On the evidence, and given the absence of evidence, that inference was reasonable and in no way speculative. It was in fact a reasonable alternative to the appellant’s guilt. No further evidence was required to make that inference reasonable – that is, it was not necessary for the appellant to additionally establish a connection between his estranged wife and drug trafficking. The principle set out in Phan that an appellant’s failure to call evidence may be considered in relation to whether a trial verdict was reasonable cannot properly be used as the trial judge did here.

[12] We are satisfied that based on the evidentiary record, no properly instructed trier of fact acting judicially could convict the appellant of possession for the purpose of trafficking. No direct evidence connected him to drug trafficking or to the cocaine. The evidence did not obviously establish his substantial control over the Valley Ridge home and certainly did not establish his control over the activities of its primary occupant, his estranged wife. The large quantity of drugs found in the Valley Ridge home was not logically salient to the appellant’s knowledge and control of those drugs in the absence of any direct evidence connecting them to him. The Crown did not provide evidence to counter the reasonable inference that the drugs belonged either to the appellant’s estranged wife or Mr. Ayyazi.

[13] The appeal is allowed. Given that a conviction cannot be supported by this evidence, we quash the conviction for possession for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19, and enter an acquittal.