When someone is charged with a crime, determining the defence someone will use is an important step. It is usually accomplished with the assistance of a lawyer. Depending on the charge, and the circumstances surrounding the alleged crime, there are a variety of options. Recently, a man, who was convicted in 2012 of sexual assault, secured a new trial after an interesting defence was offered.Called the sexsomnia defence, the basis of the defence is that though the sexual assault occurred, at the time, the man was in a “parasomniac state.” If this defence is found to be valid, the man may be found not criminally responsible for the sexual assault, due to a mental disorder.A panel of three judges ordered the new trial after allowing evidence from a forensic psychiatrist which indicated the man was in a parasomniac state when he sexually assaulted a woman following a house party. According to the man’s lawyer, her client was snoring when the incident occurred. In addition, his girlfriend indicated that he had a family history of sleepwalking and had previously engaged in sexual activity while sleeping.The outcome of this new trial could have a great impact on the life of the 35-year-old man. At the close of the previous trial he was sentenced to three years of probation on top of 14 months imprisonment. Though an acquittal at the new trial would mean the man would not have to serve that time, it does not necessarily mean that he would not still face consequences.When someone is found not criminally responsible due to a mental disorder, the Ontario Review Board reviews the case to determine whether that person poses a significant risk to the community. If they determine the person does, he or she may still be held in custody. If they are not found to pose a risk, an absolute discharge could be rendered.We will provide updates on this case as they become available.