WARNING: This story contains details related to the sexual assault of a child and may not be appropriate for all readers.
The judgment for a Nanaimo man accused of sexually assaulting his 19-month old daughter may be affected after defence successfully requested a report on whether their client can be found not criminally responsible due to mental disorder.
Justice Joel Groves rendered his decision in B.C. Supreme Court in Nanaimo on Friday, April 21. He found the man guilty of sexual assault, sexual interference of a person under 16 years old and possession of child pornography, but not guilty of making or publishing child porn. The identities of the accused and the victim are protected by a publication ban.
Based on evidence at the January trial, the man’s common-law wife, in 2020, allegedly found a 40-second video on the man’s cellphone of his genitals rubbing against the child’s pubic area. After being confronted, the man initially denied the crime, but following a direct accusation, he apologized for ruining the daughter and the mother’s life and was described as having a mental breakdown.
The video could not be retrieved by police, although a thumbnail image was submitted into evidence which depicted some of the mother’s testimony.
A pink blanket, which the wife said was seen in the video, was submitted for forensic analysis and semen was found with a high probability of DNA profile matching the man.
The man was advised by a lawyer of his rights, including his right to remain silent, but he was seemingly anxious to speak to police. He said the recording on the cellphone was accidental, as he wanted to use the light on his cellphone to help change the child’s diaper. The sex acts occurred following that, he told police, though he also told police he didn’t remember.
Groves noted the man did not maintain eye contact and continually had his head in his lap during the trial, behaviour he also exhibited in the prisoner’s box April 21.
More images of child pornography were found on the man’s phone, but are not before the court, according to Groves.
Ben Lynskey, the man’s legal representative, said the man made a confession under duress and requested an application to assess the man’s culpability based on evidence presented during the trial. It included the man sleep-walking, performing actions when “semi-directed” and then awakening and seemingly not know where he was, as well as masturbating while asleep.
A report should be done to assess whether there were additional factors that could have led to the man’s actions, Lynskey told Groves. Citing case law, Lynskey said defence has “a tactical benefit” of raising the not-criminally-responsible-by-way-of-mental-disorder during the trial or after Crown has proven its case.
Groves found that based on the man’s abnormal behaviour, there was sufficient reason to consider the application and it was worthy of investigation.
The assessment will be conducted within the next 60 days and the matter will next be before the court on June 26.