An Ottawa father who testified he was sleepwalking when he crawled into bed with his seven-year-old daughter and molested her after a night at a bar is now waiting for a judge to rule.
The 49-year-old man, who can't be named to protect his daughter's identity, is on trial for sexual interference and sexual assault.
Crown prosecutor Mike Boyce argued in final submissions Tuesday morning that the man was intoxicated but awake when he "voluntarily" sexually assaulted his daughter in December 2010, opposing the defence's theory of sexsomnia.
Two sleep experts were pitted against each other during the trial.
The man testified he had a history of sleep sex but did not seek a diagnosis from Dr. Colin Shapiro for the rare disorder until after the incident with his daughter. Sexomnia has been successfully used as a defence in Canada.
This is the man's second trial after the first ended in a mistrial when the presiding judge left the bench.
Sleep experts at odds
Shapiro testified during the trial that the man was prone to sleepwalking and sleep sex, also known as sexsomnia. Shapiro also testified that alcohol can be a trigger for sleep disorders.
Dr. Mark Pressman, a sleep expert called by the Crown, testified that alcohol was not a trigger for sexsomnia.
Both experts acknowledged that alcohol-induced blackouts are different than sexsomnia.
The Crown argued that the accused was not a credible witness because he offered three different versions about how he ended up in his daughter's bed.
In one version, he said he came home from the bar and went directly to his daughter's room; in another that he fell asleep in bed with his wife and doesn't remember how he ended up in his daughter's bed; and finally that he tried to sleep in the same room as his wife but that she kicked him out because he was drunk, at which point he went to his daughter's room.
Defence lawyer Ken Hall urged the judge to "look at the whole of the evidence," pointing out that phallometric testing suggested that the man was not a pedophile.
Ontario Justice Lise Maisonneuve is expected to deliver her decision on November 12.