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Joseph A. Neuberger, Michael P. Bury, and Diana Davison, Neuberger & Partners LLP, Criminal Lawyers Toronto
A recent decision from the Alberta Court of King’s Bench, R v DW, 2026 ABKB 519, answers that question with a qualified yes — and in doing so, it highlights one of the most difficult fault lines in Canadian criminal law: the boundary between the defence of automatism and the Crown’s basic burden to prove intention.
01 • THE FACTS
DW was charged with a single count of sex assault against his former wife, KH, arising from a series of nighttime incidents alleged to have occurred between mid-2018 and late 2019, while the couple was still married. KH testified that she was repeatedly awoken in the marital bed by DW engaging in sexual acts with her — including digital penetration, penile-vaginal penetration, and penile-anal penetration. She described five incidents in specific detail, and Justice A.K. Akgungor ultimately accepted her account of them in full.
What made the case unusual was DW’s position. He did not deny that the incidents happened. He testified that he had no memory or awareness of them at all, and he conceded on the stand that he had no reason to disbelieve KH’s account. The couple had discussed the incidents the mornings after they occurred, attended KH’s therapist together, and later saw DW’s family doctor, who ordered a sleep study and told DW his symptoms were most likely consistent with non-REM parasomnias. Notably, the doctor testified that she never used the word “sexsomnia,” despite DW’s belief that he had received that diagnosis, and no formal diagnosis or treatment ever followed. DW’s current girlfriend also testified that she had experienced similar episodes of DW touching her at night while, in her observation, he appeared to be asleep.
02 • THE LEGAL PUZZLE: AUTOMATISM OR INTENTION?
Ordinarily, a claim of “I was asleep when it happened” is a claim of automatism — involuntary conduct. Under the Supreme Court of Canada’s decision in R v Stone, an accused who advances automatism bears an evidentiary burden that includes expert psychiatric evidence. A bare assertion of involuntariness is not enough.
DW’s defence counsel was explicit that no automatism defence was being advanced, acknowledging that without expert evidence the court could not be asked to find that DW was actually asleep. Instead, the defence made a subtler argument: sexual assault requires the Crown to prove, beyond a reasonable doubt, that the accused intended to touch the complainant. The surrounding circumstances — DW’s unresponsiveness during the incidents, the couple’s genuine shared concern about his sleep, the medical appointments, and the girlfriend’s similar experiences — should leave the court with a reasonable doubt about whether that intention was ever formed.
The Crown pushed back hard. In its submission, the acts described were complex, multi-step, and sustained: removing clothing from a sleeping person, straddling her, penetrating her. These are not the movements of a reflex. If DW wanted the court to consider that he was asleep, the Crown argued, that was automatism by another name, and the Stone requirements had not been met.
03 • THE COURT’S ANSWER
Justice Akgungor found KH credible and reliable, rejected the suggestion that she had fabricated or embellished the allegations amid the couple’s bitter 2022 separation, and held that the actus reus of sexual assault was proven beyond a reasonable doubt.
But on intention, the court followed the Ontario decision in R v E.A., 2020 ONSC 3569. That case draws a distinction: where an act appears intentional on its face, a defence that the accused was in fact asleep engages the automatism framework and requires expert evidence. But where the case was never argued as automatism, the defence remains free to argue simply that the Crown has failed to prove intention — and the trier of fact may consider evidence of apparent sleep in that assessment.
Applying that reasoning, the court found a reasonable possibility that DW was not fully conscious during the incidents. KH’s own descriptions were telling: when she pushed him away or confronted him, DW would say little more than “oh,” grumble, roll over, and go back to sleep as though nothing had happened — behaviour the court found more consistent with someone partially roused from sleep than with someone alert. KH also conceded she could not know whether DW was awake when the incidents began, because she herself had been asleep. And the couple’s joint visits to a therapist and a family doctor suggested to the court a genuine, shared concern that something was happening in DW’s sleep, rather than an elaborate cover story.
The result: the Crown had not proven the intention to touch beyond a reasonable doubt, and DW was found not guilty. The court reached this conclusion without relying on the girlfriend’s evidence, and while expressing genuine sympathy for KH, whom the judge described as having endured a terrifying and upsetting ordeal.
04 • WHY THIS CASE MATTERS
R v DW sits at an uncomfortable intersection. On one reading, it faithfully applies first principles: the presumption of innocence means the Crown must prove every element, including intention, and a reasonable doubt on any element requires acquittal. The defence never asked the court to find that DW was asleep — only to recognize that the Crown could not exclude the possibility.
On another reading, the decision illustrates how the line drawn in E.A. can let sleep-related claims reach the trier of fact without the expert-evidence safeguard that Stone built around automatism. The Crown’s argument — that complex, multi-step sexual acts are, on their face, intentional acts — has real force, and the E.A. framework itself acknowledges that facially intentional conduct is supposed to trigger the automatism analysis. Where exactly conduct stops “appearing intentional” enough to engage Stone remains far from clear, and appellate courts may eventually need to say more.
The decision is also a sobering reminder of what acquittal does and does not mean. The court accepted that KH was subjected to non-consensual sexual touching that violated her sexual integrity. Her account was believed. The acquittal turned entirely on the state of mind of the accused — something she, asleep in her own bed, was in no position to observe.
For complainants, Crown prosecutors, and defence counsel alike, R v DW is likely to become a reference point whenever sleep, memory, and intention collide in a sexual assault prosecution.
This post discusses a published, anonymized judgment subject to a publication ban under s. 486.4 of the Criminal Code protecting the identity of the complainant. It is commentary only and not legal advice.
