R. v. C.P., 2017 ONCJ 277

WARNING

The court hearing this matter directs that the following notice be attached to the file:

This is a case under the Youth Criminal Justice Act and is subject to subsections 110(1) and 111(1) and section 129 of the Act. These provisions read as follows:

110. IDENTITY OF OFFENDER NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a young person, or any other information related to a young person, if it would identify the young person as a young person dealt with under this Act.

111. IDENTITY OF VICTIM OR WITNESS NOT TO BE PUBLISHED — (1) Subject to this section, no person shall publish the name of a child or young person, or any other information related to a child or a young person, if it would identify the child or young person as having been a victim of, or as having appeared as a witness in connection with, an offence committed or alleged to have been committed by a young person.

129. NO SUBSEQUENT DISCLOSURE — No person who is given access to a record or to whom information is disclosed under this Act shall disclose that information to any person unless the disclosure is authorized under this Act.

Subsection 138(1) of the Youth Criminal Justice Act, which deals with the consequences of failure to comply with these provisions, states as follows:

138. OFFENCES — Every person who contravenes subsection 110(1) (identity of offender not to be published), 111(1) (identity of victim or witness not to be published) . . . or section 129 (no subsequent disclosure) . . .

(a) is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years; or

(b) is guilty of an offence punishable on summary conviction.

Court Information

Date: May 2, 2017

Ontario Court of Justice

Between:

Her Majesty the Queen

— AND —

C.P.

Before: Justice K. Crosbie

Counsel:

• S. Olver, for the Crown
• L. Rose, for the Accused

Reasons for Judgment

Released May 2, 2017

Introduction

1The case before me brings to the forefront the meaning of consent to sexual activity in the context of a complainant's intoxication. R.D. and C.P., 14 and 15 years old, went to a hidden beach in Scarborough with some friends to celebrate one of their companion's birthday. The two had known each other for a couple of months. They, along with most others at the beach, were drinking alcohol. R.D. drank a considerable amount of alcohol. At first, it did not seem to affect her and she kept drinking. Eventually, she became intoxicated to the point where she was having difficulty walking or talking. She vomited and passed out. At some point during the evening, C.P. had sex with R.D. The question I must decide is whether the Crown has proven beyond a reasonable doubt that he did so without her legally valid consent.

2The following morning, R.D. woke up to find a text message telling her that she and C.P. had, as the message put it: "had sex". Until that moment, R.D. had not remembered that any sexual activity, consensual or otherwise, had occurred. In fact, she claimed to have little memory of what happened that night. Upon learning through social media that they had "had sex", R.D. called out for her mother who was in another room of their house. Her mother took her to the hospital, where potential evidence was collected. After some discussion with her mother, R.D. decided to give a statement to the police, as a result of which C.P. was charged with sexual assault.

3The Crown's position is that C.P. had sex with R.D. on the night of April 23, 2016 knowing that she was too intoxicated to have consented. The Crown contends he cannot claim to have had an honest but mistaken belief in consent. C.P. admits that he had sex with R.D. but argues that R.D. consented to have sex with him before there were any signs that she was too drunk to have consented. He honestly believed that she was consenting to sexual intercourse.

4Given several concessions in the case and the manner in which the parties have approached it, the live issues before me are whether the Crown has proven beyond a reasonable doubt that:

• R.D. was too intoxicated to have consented to have sex with C.P.;
• C.P. knew that R.D. was too drunk to have consented to sex with him; and
• C.P. did not have an honest but mistaken belief in consent.

5I have concluded beyond a reasonable doubt that C.P. forced sexual intercourse on R.D. knowing she was incapable of consenting due to extreme intoxication. I am also convinced beyond a reasonable doubt that C.P. had no honest belief that R.D. was consenting to sexual intercourse. In these reasons for judgment, I will set out the evidence tendered on behalf of the Crown and the evidence of the accused. I will briefly set out the positions of the parties and then review the operative legal principles that have guided my analysis and conclusion. Before turning to the evidence, I will briefly outline certain aspects of the proceedings.

Outline of the Proceedings

6At the outset of the trial, the Crown brought an application to introduce the videotaped statement of R.D. and assertions she made to her mother, J.G., based on the principled exception to the rule against hearsay (R. v. Khelawon 2006 SCC 57). In terms of necessity, the Crown submitted that the complainant was experiencing considerable anxiety and having her testify would cause further trauma. A letter from R.D.'s doctor was tendered in support of the Crown's application. Further, the Crown sought to have R.D.'s mother testify about her daughter's emotional state. On the second day of the proceedings, defence counsel conceded that the necessity component had been satisfied.

7With respect to threshold reliability, the Crown submitted that R.D.'s videotaped statement to the police and utterances to her mother passed this criteria because there was a sufficient basis for testing the proposed evidence and the contents of the statement were sufficiently trustworthy. On the third day of trial, defence counsel conceded that the Crown had met its onus of establishing threshold reliability.

Review of the Evidence

a) Overview of the Witnesses

8R.D. did not testify. Instead, the Crown introduced her evidence through her statement to the police and called eight witnesses:

• E.G. is a friend of R.D. On consent, her statement to the police was admitted pursuant to section 715.1. E.G. also testified about arriving at the beach and immediately finding R.D. highly intoxicated;

• H.M. is E.G.'s mother. She gave evidence about going to the beach around 2:00 a.m. to pick up her daughter and her friends;

• G.G. is a friend of R.D. On consent, her statement to the police was admitted pursuant to section 715.1. She gave evidence about getting alcohol before the party, how drunk R.D. was and about taking R.D. to G.G.'s house at the end of the night;

• L.C. is G.G.'s mother. She testified about coming to the beach and taking R.D. back to her home to sleep;

• Officer Nicholas Lawson: Cell phone records were introduced into evidence, on consent, through this witness, as well as photographs of a number of text messages;

• L.L. is a friend of R.D. who was not at the party. He spoke to her on the phone at some point late in the evening and testified that she seemed very drunk;

• J.G., R.D.'s mother, testified about picking her daughter up from G.G.'s home the morning after the beach party, the events of that morning and what R.D. said about the party. She also testified about taking her daughter to the hospital and discussing with her whether R.D. should make a report to the police; and

• Officer Matthew Wighton: The officer in charge of the case who took R.D.'s statement on the evening of Sunday April 24.

9C.P. testified that R.D. asked him to have sexual intercourse with her and he did have sex with her. He said that before and during the activity, R.D. was acting normally and did not appear to be intoxicated. It was only sometime after the sexual activity that C.P. believed R.D. showed signs of being very intoxicated.

b) Early Evening on April 23, 2016

10On Saturday April 23, 2016, a number of young people went to an area of the Scarborough beaches near the water treatment plant to celebrate the birthday of a young woman named T. R.D. and C.P. were among this group. Prior to April 26, C.P. and R.D. had known each other for a couple of months. They mostly hung out in a group at a Tim Horton's with other friends from the area.

11Before going to the party, a few of the group had pooled their money and gone to an LCBO store to "shoulder tap" – a term used to describe asking adult strangers if they would purchase alcohol for them. Both R.D. and C.P. were at the LCBO store. R.D. told the police that they got one mickey of vodka and a 26 ounce bottle of vodka. In terms of the time the group was at the LCBO store, C.P. testified that he thought he had arrived about 8:30 or 9:00 p.m. and was there for about 30 to 45 minutes. R.D. told the police they went to the LCBO around 9:00 or 10:00 p.m. It was an agreed fact that the LCBO closed at 10:00 p.m. that evening.

12There is some uncertainty about the time the group arrived at the beach. R.D. told the police that she and her friends arrived between 10:00 and 11:00 p.m. G.G., who was with the group at the LCBO, was not sure when they had reached the beach but said she had been there for a couple of hours before she left at 12:30 a.m. She was sure she left at this time because she had looked at her cell phone. She returned a short time later with her mother. E.G. testified she came independent of the group and arrived sometime between 10:00 and 11:30 p.m., leaving at about 2:30 a.m. She said her friends had already been there for an hour or more by the time she arrived.

13To access the beach area, the group of teens had to climb down a steep hill. Upon arriving, another group - somewhat older than their group - were already there and had started a bonfire. After some discussion, the younger group decided to join them.

14C.P. testified that after the decision was made to join the older group, he and R.D. sat down on a mattress by the bonfire. They were the only two people sitting down – everyone else was just standing around talking and drinking. C.P. said that he and R.D. were talking – he did not recall the topics – and drinking alcohol. After about 15 or 20 minutes, he said that they started kissing. This was the first time that they had ever kissed each other. They both used their tongues. He did not remember who initiated the kissing or for how long it occurred.

15Asked when the kissing stopped, C.P. explained that the older group had decided to put the mattress he and R.D. were sitting on in the bonfire. At this point, R.D. went over to the rocks by herself and C.P. went to speak with a friend named Justin for about five minutes. After this, C.P. said, he went to the rocks to join R.D. because he wanted to kiss her again. He asserted that he was not hoping to have sex with her. He does not recall whether they had any alcohol with them by the rocks at this point, but he did say there were some bottles strewn around R.D. He was not able to remember what they talked about after he sat down beside her.

c) R.D.'s State of Intoxication

16C.P. testified that when he, R.D. and another young woman were on their way from the LCBO store to the beach, they began drinking from one of the bottles of vodka. He did not recall how many bottles or what kind of alcohol they had apart from the 26 ounce bottle of Smirnoff from which they were drinking. He said they were talking and drinking as they walked to catch the streetcar and while they were on the streetcar. C.P. said that it took about 15 to 30 minutes to get to the beach and when they got there, they continued drinking.

17R.D. said that she was more drunk than anyone else in her group of friends. She said that she had two or three shots from the mickey of vodka and considerably more from the 26 ounce bottle of vodka. R.D. also told the police that some of the people who were already at the beach had whiskey and she had a sip or two of that. R.D. had not eaten much that day.

18In her statement to the police, R.D. mentioned that while she consumes alcohol occasionally, she does not get drunk every weekend. She had never been as drunk as she was that night. She told the police that she was vomiting and her friends were helping to take care of her. She said she remembered lying on the sand by the rocks with a pink blanket draped over her.

19Other witnesses attested to R.D.'s advanced state of intoxication. G.G. did not actually see R.D. drinking but knew she had done so because of the way R.D. was acting. G.G. said that R.D. had not appeared to be drunk when they were first at the beach but she became progressively more drunk as the evening wore on. G.G. testified that R.D. became wobbly and was having a hard time walking. She also explained that R.D. was slurring her words. G.G. was not sure where R.D. was or who R.D. was with when G.G. made these observations. However, when G.G. left the party around 12:30 a.m., she noticed R.D. lying down beside the rocks. She said that R.D. looked "really sleepy, really sleepy, tired." In her statement to the police, G.G. said that it was around this time that R.D. started throwing up. She clarified in cross-examination that she meant R.D. was throwing up both before G.G. left and while she was leaving. G.G. did not see E.G at the party before she left to go home.

20E.G. testified that she arrived about 90 minutes after her group of friends had. She immediately noticed R.D. and another young woman on the ground by the big rock. In her words, when she got there, "…the very first thing that I noticed was R. and T., on the ground and so it was very clear that they were really, really really intoxicated." E.G. also said in her statement that it was "pretty obvious" that they were drunk: they both had vomit all over them, they couldn't get up and there were empty bottles around them too. She called out their names but they were so drunk that they could not speak to her.

21E.G. went over to them instantly. R.D. was asleep when E.G. first got to her so she woke her up and asked her if she could hear her. R.D. was responsive enough only to open her eyes and look at E.G. In her statement, E.G. explained that both R.D. and T. were "incapable of talking because they were so drunk". All R.D. said to E.G. was that she was cold, repeating this several times. E.G.'s first reaction was to try and prevent R.D. from throwing up on herself. She was apprehensive that R.D. might choke on her vomit. At some point, R.D. was able to say E.G.'s name. She also spoke briefly to her friend L.L. on the phone. E.G. testified that E.G. was the one who had called L.L. E.G. placed the call about an hour after she had arrived at the beach. She called him because she was very worried about R.D. and she wanted his help.

22E.G. confirmed in cross-examination that when she arrived at the beach, she immediately went over to R.D. She recalled that the only time she saw C.P. with R.D. was later on, when he helped R.D. up the hill. E.G. stayed with or near R.D. throughout the rest of the evening until they all left. E.G. stated that during that whole time period, R.D. was lying on the ground until they helped get her up to leave.

23L.L., a friend of R.D. who was not at the party, testified that late in the evening a couple of people used R.D.'s phone to call him. He remembered speaking to E.G. for a while. Using his phone records as a guide, he thinks it was at 1:49 a.m. that he spoke to her. At one point during the conversation, he overheard some parents at the beach. He also recalled hearing people as they were walking up the hill. In addition, he remembered talking with R.D. for two or three minutes. He said that she sounded really drunk - she was slurring her words and repeating herself. It might either have been the 1:49 a.m. call when he spoke with R.D. or else during the call that is noted as starting at 1:24 a.m. L.L. said he had been with R.D. when she was drunk two or three times, but he had never known her to be that drunk, and never to the point where she blacked out.

d) C.P.'s Level of Intoxication

24E.G. testified that C.P. was, as she described him, "really, clearly drunk." She said he could not walk properly, was making random statements and was repeating himself. G.G. also thought C.P, had been drinking because of how he was acting, however she did not actually recall seeing him drink. He was stumbling like R.D. but was not as drunk as her, G.G. stated.

25During his evidence in chief, C.P. said he drank quite a bit as well. In cross-examination, he said that he did not know if he was drunk. He stated, though, that he spoke with a friend named Jeremy after he had had sex with R.D. and that Jeremy told him that he should go and sit down because he was too drunk to be walking around.

e) The Sexual Activity in Question

26In examination in chief, C.P. told the court that when he joined R.D. at the rocks he sat down beside her. He said he did not recall whether R.D. was still drinking but he believes that there were a few bottles beside her. C.P. said he believes they started kissing and then she said: "Fuck me, C." He said that he was touching her crotch area before this and that the kissing lasted about five to 10 minutes. He also said that he thought, but was not sure, that she touched his penis. He told the court that their clothes were on. When she said "fuck me", he replied "okay". He was, in his words, "surprised at first" because they were not that close. But he thought to himself that she wanted it and he believed that "…she was in the right mind to give consent because she was not passed out or anything". He did not use a condom when they had intercourse, nor did they discuss such. He said his plan was to withdraw before he ejaculated, although he did not tell that to R.D. However, he was not able to pull out in time and he ejaculated inside of her.

27C.P. testified that R.D. seemed fine at this point. When his counsel asked him if R.D. was mumbling or slurring her words during this time period, C.P. responded that "she was speaking". He said, in his words, that she did not appear to be "out of it".

28C.P. stated that after they had sex he remembers standing up while he believes R.D. was pulling up her pants. He said R.D. still seemed fine. He deduced "that Jeremy and E.G. …had arrived" because he heard them talking. He decided to go over and talk with them. He said that Jeremy and E.G. were at the bottom of the hill – that is, the spot at the base of the descending path. C.P. explained that he spoke with his friends for about 10 to 15 minutes and then they went back over to R.D. He said R.D. had changed positions since he had left her and that it struck him then that she seemed drunk. He said he believed she was throwing up at that point. He also said he believed she must have had more to drink during the time he was talking with Jeremy and E.G.

29C.P. was asked for detail in cross-examination. He said he did not remember what, if anything, they said to each other when he sat beside her on the rocks. When asked how the kissing started on the rocks he did not recall. He also did not recall if they used their tongues when they were kissing at that point. He had said in examination in chief that the kissing and crotch-touching went on for about five to 10 minutes but in cross-examination he said he did not recall how long they were kissing before R.D. said "fuck me". When asked for detail about the manner in which he was rubbing R.D.'s crotch, he said he "believe[s] it was over her clothing." He agreed with the Crown's suggestion that the alcohol had made him feel bolder.

30At one point during cross-examination, C.P. did not want to answer questions the Crown posed about whether he was sexually excited when touching R.D. After the Crown's question was clarified, C.P. said he did not remember. He told the court he did not remember if R.D. said anything during the sexual activity or before while he was touching her genital area. He said he believed R.D. had touched his penis, which was erect. When asked more about the sexual intercourse, C.P. said that he "…helped her pull down her pants and then we had sex." By helping her, he explained that she lifted up her backside and he helped her pull her pants down.

31Further in cross-examination, C.P. said that after R.D. said "fuck me," he did not ask her at any point if she was sure she wanted to have sex. He did not ask her if she knew what she was doing. He testified that he did not query whether she wanted to have sex with him while there were a number of people around. Nor did he ask her if she was too drunk to have sex. He said that he was not counting how many drinks she had, nor how many he had had. He did not have a condom with him and he reiterated that he never broached the subject of protection with R.D. He said he intended to pull his penis out before he ejaculated but he did not tell R.D. that that was his plan.

32When asked in cross-examination what R.D. was doing during intercourse, C.P. replied that she was lying there. He added that she was making, as he put it, "sex noises" and when asked to clarify, he said he did not feel comfortable answering that question. When pressed by the Crown, he said "sex noises" are the noises people make when having sex and that R.D. was moaning. He denied the Crown's suggestion that she was moaning because she was very drunk.

33C.P. said he had never seen R.D. drunk prior to this evening. When it was put to him that R.D. was actually quite drunk before they had sex, he said: "She was not drunk before because she was not throwing up."

34As he did during examination in chief, C.P. testified in cross-examination that after he ejaculated he stood up and walked away while R.D. was pulling up her pants. He again said that he "…heard E.G. and Jeremy coming down the hill" when he stood up. He explained that they were talking loudly. When the Crown asked him whether E.G. had gone right over to R.D. upon her arrival he said that she had. In examination in chief, C.P. said that he chatted with his friends for about 15 minutes before going back to R.D. In cross-examination however, he said he was not sure of the duration of the chat. He said that when he went back to R.D. she had changed positions. He said she was also throwing up. He sat down beside her and asked her if she was okay. At that point, E.G. put a blanket on R.D. because she was cold. C.P. testified that he stayed nearby R.D. for the rest of the evening. He agreed with E.G.'s testimony that she stayed with R.D. for the rest of the night.

35In her statement to the police, R.D. said that she did not remember much of the evening. "A lot of it's still really fuzzy", she said. She was able to recall snippets, however. R.D. thought she remembered talking with C.P. about where he went to school before she was too drunk to converse. She also remembered people putting the mattress into the bonfire. She remembered seeing C.P. walk over to her when she called out for water. She thought he kissed her on the lips at that point. R.D. said she recalls "blacking out" and "falling asleep" at this point. She does not remember anything about any sexual activity, but she did recall pulling up her leggings at some point as they were at her knees.

36R.D. told the police in her statement that when C.P. came over to her, she was "half laying down, half stay up", but what she remembered was not very clear. To her memory, it looked like he was a shadow. She also had a memory of hearing people saying something to the effect that "they are having sex". R.D. said she kept falling asleep when she was hearing those voices.

37R.D. also remembered C.P. walking away from her. R.D. remembered that she felt cold and told people that she was cold. She said she could not stop throwing up.

38When the police asked R.D. if she had planned to have sex with C.P. that night she said no. When asked if she wanted to have sex with him that night, she said: "When it happened I don't remember it so, I don't, I don't think so". She added that if he asked her to have sex now - that is, the day of her statement - she would have said no.

39I note that in her testimony, E.G. stated that she did not see any sexual interaction between C.P. and R.D. G.G. testified that she only saw R.D. and C.P. kissing a couple of times as people were beginning to show the effects of drinking.

f) Leaving the Beach Party

40Some of the mothers of the young women heard that they were drinking at the beach party and went to bring them home. L.C., G.G.'s mother, testified that she arrived at the beach at about 1:00 or 1:15 a.m. H.M., E.G.'s mother, thought that it was around 2:00 a.m. that she went to pick up her daughter. Both H.M. and L.C. testified though that they overlapped in terms of the time they were there.

41I heard evidence that before climbing the hill to leave, a man named Christian punched C.P. in the face. C.P. testified that he did not know the man, nor the reason he was punched. E.G. testified that she overheard Christian chastising C.P. for taking advantage of a drunk girl just before he punched him.

42When G.G. returned with her mother, she went down the hill to the beach. She saw R.D. with a couple of other people who had arrived at some point after the first group began to party on the beach, including E.G. R.D. was lying down near the rocks and still looked really sleepy. C.P. was sitting on the rocks with a few other people.

43The young men and women climbed up the hill from the beach to where cars driven by some of their parents were waiting. At this point, R.D. said that she was still feeling the effects of alcohol. She said people were helping her walk up the hill and she was also holding onto the fence and some trees so she did not fall. E.G. testified that all of them, including C.P., were helping R.D. up the hill. G.G. thought R.D. was still "kind of drunk" when they were leaving but was sober enough to walk up the hill, but recalled that a few of them were behind her to make sure she did not fall. L.C. saw a couple of the young women helping R.D. walk up the hill. She said R.D. was in very bad shape.

44R.D. told the police that she remembered getting into a car and going to G.G.'s house. She recalled G.G.'s mother giving her toast and water. She slept there for a while before her mother came to pick her up. Both G.G. and L.C. confirmed these aspects of R.D.'s statement. L.C. also said that she had R.D. sleep on her side so she would not choke if she threw up. G.G. sent a text to R.D.'s mother letting her know where R.D. was and that she was safe.

45I also heard evidence that C.P. left the beach area with a male friend on foot.

g) The Following Morning

46R.D.'s mother, J.G., got a text from her daughter's phone around 3:00 or 4:00 a.m. indicating that her daughter was fine but needed to sleep. After worriedly looking for her in some of the usual haunts that R.D. frequents, J.G. found out where R.D. was sleeping. She parked in front of the house and waited until about 6:00 a.m. before she knocked on the door.

47J.G. was shocked at her daughter's appearance – so much so that she thought her daughter had alcohol poisoning. She testified that R.D. was ashen, had sunken eyes and was without colour. She appeared very tired. R.D. told her mother that she had had a lot to drink. J.G. tried to convince her daughter to obtain medical attention – to the point of driving her daughter to the front of a hospital – but R.D. simply wanted to go home and sleep. J.G. took her home and put her to bed.

48Around 11:30 a.m., R.D. called out for her mother in a panic. When J.G. went into her room, R.D. had her cell phone out and said: "Mommy, please don't hate me". R.D. told her mother that her friends told her that when she passed out, one of the boys, C.P., had had sex with her. J.G. said her daughter was in a terrible, panicked state. She said her daughter seemed "broken" and "shattered". R.D. later told the police that when friends informed her that C.P. had ejaculated inside of her she was really scared. J.G. got her up and took her to the emergency room at the Hospital for Sick Children.

49J.G. told the court that R.D. was taken to the sexual assault unit and was given medical care and tested for sexually transmitted infections. The hospital staff asked R.D. if she wanted to make a police report. At first, R.D. said she did not; that she wanted it all to go away. J.G. privately spoke with her daughter and told her if she was going to make a report she should do so at that time rather than later, and that she should think carefully about what she wanted to do. J.G. told her daughter that if she did not make a report, it would send an implicit message that what C.P. did was okay. J.G. said she encouraged her daughter to make a report, but made it clear that it was her daughter's decision. As J.G. explained, she did not force R.D. to contact the police and could not have forced her to do something against her will even had she tried. Her daughter, J.G. explained, was in a very vulnerable state and was looking to her mother for guidance.

50J.G. also testified that R.D. had told her she had never consumed as much alcohol before. R.D. told her mother that she kept drinking vodka because, at first, it not did not seem to be affecting her. It took some time, R.D. told her mother, for the vodka to, as she put it, "hit her". After, R.D. told her mother that she "fell asleep" or "passed out". R.D. did not provide any time lines to her mother for what had happened that evening. R.D. also told her mother she could not remember much of anything thereafter and had no knowledge she had been sexually assaulted until her friends told her on social media the following morning. J.G. did not press her daughter for details of that evening.

Position of the Parties

51I will refer to aspects of counsels' submissions in my analysis but I will set out, in brief, their general positions.

52Mr. Rose submits that C.P.'s evidence is credible and reliable; that I should believe him or at least be left in a reasonable doubt by his evidence. Counsel asserts C.P's testimony was not contradicted by any of the witnesses, including the evidence of R.D., and that his evidence was internally consistent. He further argues that the Crown has failed to meet its high burden of proof.

53In addition, Mr. Rose submits that if I find the Crown has met its burden of establishing incapacity, I should find that C.P. had an honest but mistaken belief in consent. He asserts it was reasonable for C.P. to take what R.D. said on its face. C.P. was not too drunk, argues Mr. Rose, to negate this defence and he was not wilfully blind or reckless.

54Defence counsel does not take any issue with respect to the credibility of the Crown witnesses. With respect to R.D.'s evidence, he notes that her statement to the police and what she said to her mother was admitted into evidence on consent, but reminded me that she lacks memory on key points and he was not able to cross-examine her.

55Ms. Olver contends she has met her high burden of proving that R.D. was incapacitated by alcohol and that C.P. knew she was incapacitated. The Crown put forward that I should have considerable concern about C.P.'s evidence. She argues that he was not credible, his memory for key details was sorely lacking, aspects of his evidence are contradicted and inherently suspect, and his story defies logic. I should outright reject, the Crown asserts, that R.D. ever told C.P. to "fuck" her and even I am left in a doubt about whether she did say this, he cannot rely on section 273(2) because of his self-induced intoxication and his failure to take any reasonable steps to ensure her statement was the product of an operating mind.

Relevant Legal Principles

a) Fundamental Principles

56There are a number of operative legal principles that have guided my analysis and decision. First, the accused is presumed innocent and bears no burden to prove his innocence. The presumption of innocence is only displaced if the Crown has established, beyond reasonable doubt, that he is guilty of the offence charged. The standard of proof is a high one (R v. Lifcus, 1997 CanLII 319 (SCC), 118 C.C.C. (3d) 1 para. 27 and R. v. Starr, 200 S.C.C. 40 para 242). In other words, it is not enough for me to believe that C.P. is possibly or even probably guilty. The legal standard is closer to absolute certainty and far greater than probable or likely guilt. This is a fundamental principle of our criminal law.

57Second, the overall tenets of the Supreme Court of Canada's decision in R. v. W. (D.) (1991), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397 (S.C.C.) must – and have - governed my analysis and decision. At its essence, the principles emerging from this decision centre on the application of the Crown's burden of proving guilt beyond reasonable doubt. The Court set out the following general approach for dealing with this issue:

• First, if you believe the evidence of the accused, obviously you must acquit.
• Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
• Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.

58In R. v. B.D., 2011 ONCA 51, the Court of Appeal explained what W. D . requires in terms of approaching credibility. Justice Blair stated:

As a general rule, the standard of proof beyond a reasonable doubt is not to be applied piecemeal to individual items or categories of evidence. The Crown is not required to prove or disprove beyond a reasonable doubt any single fact, or any item of evidence, unless that fact or item is an element of the offence or an element of a defence. Different considerations arise, however, when conflicting evidence is presented to the jury on an essential element and the jury is required to make credibility findings with respect to that conflicting evidence [emphasis mine] (para. 96).

59Further, I remind myself that a criminal trial where the accused and the complainant testify is not a credibility contest. A judge is not to simply compare the differing versions of events and choose which one the judge prefers (R. v. C.L.Y. 2008 SCC 2). Indeed, as Justice Cronk cautioned in R. v. O.M., 2014 ONCA 503:

It is elementary that a complainant's credibility cannot be established by assuming the accused's guilt. Nor can an accused's evidence be rejected simply because the evidence of a complainant is accepted. W.(D.) precludes this "either/or" approach to the assessment of credibility. Instead, under the third step of W.(D.), the trial judge must ask whether, although she may not believe the accused's evidence, a reasonable doubt arises on the whole of the evidence that she does accept. [For a more recent appellate decision on point, see R. v. R.D., 2016 ONCA 574, para. 42].

60Third, I may accept all, part, or none of a witness's evidence (R. v. Zimunya, 2013 ONCA 265 para. 4).

b) The Elements of Sexual Assault

61There is no issue in this case that C.P. touched R.D. intentionally and that the physical contact was of a sexual nature. Therefore, the Crown must prove the following elements of the offence beyond reasonable doubt:

• That R.D. could not consent to sexual activity with C.P. given her state of intoxication;
• That C.P. knew R.D. could not have consented; and
• That C.P. did not have an honest but mistaken belief in consent (R. v. Park (1995), 1995 CanLII 104 (SCC), 99 C.C.C. (3d) 1 (S.C.C.)).

62When assessing the actus reus, consent is determined by reference to the complainant's subjective state of mind as to the sexual touching at the time it occurred (R. v. Ewanchuk (1999), 1999 CanLII 711 (SCC), 131 C.C.C. (3d) 481 S.C.C.). The question to be asked at this stage is essentially: "Did the complainant want the sexual touching to take place"? A complainant is not required to offer "a minimal word or gesture of objection" – a lack of resistance must not be equated with consent (R. v. M. (M.L.), 1994 CanLII 77 (SCC), [1994] 2 S.C.R. 3).

63Consent is defined in the Criminal Code both in terms of what it is and what it is not. Section 265(3) enumerates several situations in which consent cannot be obtained, including, for example, when an accused has exercised his authority over the complainant. This section applies to all forms of assault. However, with reference to only sexual assaults, Parliament delineated a positive definition of consent in section 273.1, namely, "the voluntary agreement of the complainant to engage in the sexual activity in question." For the sake of clarity, the section stipulates situations in which consent will not be "voluntary" – over and above those contained in section 265(3). For present purposes, section 273.1(2) states that there is no consent where the "complaint is incapable of consenting".

64Further, the Supreme Court of Canada has defined consent under section 273.1, in a robust manner that protects and promotes the sexual autonomy and personal integrity - both physical and psychological - of every individual. In Ewanchuk, Justice Major explained the rationale underlying the criminalization of sexual assault this way:

… Society is committed to protecting the personal integrity, both physical and psychological, of every individual. Having control over who touches one's body, and how, lies at the core of human dignity and autonomy. The inclusion of assault and sexual assault in the Code expresses society's determination to protect the security of the person from any non-consensual contact or threats of force. The common law has recognized for centuries that the individual's right to physical integrity is a fundamental principle, "every man's person being sacred, and no other having a right to meddle with it, in any the slightest manner (para. 28).

65In addition, for consent to be legally effective, the Supreme Court has directed that it must be reasonably informed, conscious and freely given. Justice Major outlined in Ewanchuk the contours of consent by quoting the following excerpt from R. v. St. Laurent (1993), 1993 CanLII 4380 (QC CA), 90 C.C.C. (3d) 291 (Que. C.A.) para 17:

As a matter of both language and law, consent implies a reasonably informed choice, freely exercised. No such choice has been exercised where a person engages in sexual activity as a result of fraud, force, fear or violence. Nor is the consent requirement satisfied if, because of his or her mental state, one of the parties is incapable of understanding the nature of the sexual act, or of realizing that he or she may choose to decline to participate.

Consent is thus stripped of its defining characteristics when it is applied to the submission, non-resistance, non-objection, or even apparent agreement of a deceived, unconscious or compelled will…(paras. 36, 37 and 66 [emphasis added]).

66In R. v. J.A. 2011 SCC 28 (CanLII), [2011] 2 S.C.R. 440, the Supreme Court dealt with the question of whether "voluntary consent" required the complainant to be conscious throughout the sexual activity in question. Chief Justice McLachlin, writing for the majority, made numerous comments about the nature of consent in our law:

• Consent requires a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act;
• A complainant has to be given the ability to decide, at each and every point of sexual activity, whether and on what terms she is willing to engage in the behaviour;
• A complainant must be able to evaluate each and every sexual activity or encounter; and
• A complainant must be able to change her mind partway through and withdraw her earlier consent. As the Chief explained, "Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point" (paras. 3, 21, 34, 42, 43, 44, 60 and 66).

c) Incapacity to Consent

67As noted above, section 273.1(2) sets out that no consent to sexual activity is obtained when the complainant is incapable of consenting. Determining incapacity can prove a difficult task. What is clear, at least since J.A., is that an individual cannot consent to sex when she is unconscious. However, the degree of intoxication required to rise to the level of incapacity is not as straightforward.

68Essentially, courts have defined incapacity as requiring proof that the complainant was incapable of understanding the sexual nature of the act, or was not able to appreciate that they may choose to decline to participate in the activity (R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.); appeal to S.C.C. quashed, 1997 CanLII 368 (SCC), [1997] 1 S.C.R. 304). In other words, they must have a sufficient awareness of what is happening and an ability to make decisions and act on them. Cases where extreme intoxication have led to findings of incapacity to consent tend to be cases where the evidence of intoxication is far beyond the loss of gross motor skills and balance. These cases tend to include evidence of a loss of awareness or loss of consciousness.

69To be clear, to prove incapacity to consent to sexual activity, the Crown does not need to prove that the complainant was in a state akin to automatism as a result of impairment. Instead, the question to be determined is whether the complainant lacked the minimal capacity to consent, or withhold his or her consent, to the sexual activity.

70Some discussions of the cases may prove useful in explaining the legal standard that I must apply. In Jensen, the complainant was able to describe the sexual activities in some detail, including how she was positioned and how her clothing had been removed. The evidence in that case was not sufficient to establish that she was incapable of consenting.

71In R. v. Cedeno, 2005 ONCJ 91 (CanLII), [2005] O.J. No. 1174 (C.J.), the victim drank a substantial amount of vodka and smoked marijuana and hashish. She consumed so many intoxicants that she threw up in the washroom before passing out on the floor. The victim had a memory of waking up and then passing out again then waking up in a bedroom. Despite an absence of memory of what took place, the judge found an absence of capacity to consent.

72In R. v. J.W.M. [2004] O.J. No. 1295 (S.C.), evidence from witnesses established that the complainant was so drunk that she could not walk on her own, she had vomited repeatedly, and she was unable to enter a car unassisted or fasten her seatbelt. Justice Hill found the complainant lacked the minimal capacity to consent. In doing so, he said the following:

Noting that the relevant inquiry is whether T.W. "lacked the minimal capacity to consent (or withhold her consent) to the sexual activity" (R. v. Jensen (1996), 1996 CanLII 1237 (ON CA), 106 C.C.C. (3d) 430 (Ont. C.A.) at 437), the defence points to certain factual circumstances to argue that a reasonable doubt must exist on the capacity issue. Counsel for the appellant submitted that at "a basic level", on arrival at the appellant's house, T.W. knew she was going to be sick, stayed on her own in the bathroom, was able to vomit on her own and walked unassisted to the appellant's bedroom. While capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting, to capacity to consent to sex is entirely unpersuasive. This is particularly so in light of the evidence of the complainant's extreme intoxication including lack of consciousness after midnight (para. 56).

73More recently, Justice Mara Greene addressed whether the complainant retained the minimal cognitive capacity to understand the sexual nature of the act and make decisions in R. v. Tariq, 2016 ONCJ 614. In that case, the complainant was out with some friends to celebrate a friend's birthday. The next morning, she woke up naked in a hotel room and she had no recollection of how she arrived there or with whom she had arrived. But she knew that someone had had or forced sexual intercourse with her. The Crown argued that either she did not consent to any sex with the accused or that she lacked the capacity to consent given her state of intoxication. Justice Greene concluded that the Crown had established that the complainant lacked the capacity to consent. She based her findings on the following pieces of evidence:

• The amount of alcohol the complainant consumed;
• The indicia of impairment as seen in various videos;
• The complainant's dazed and confused expression in the hotel lobby and elevator;
• Her illogical conversation with another person and attempt to call someone else; and
• The fact that the complainant was falling asleep in the elevator.

74In R. v. Hinds [2016] O.J. No. 247 (S.C.J), the trial judge concluded that, based on the fact that a short time before the incident the complainant had been in control of her actions; she had not consumed additional alcohol; and she was able to comprehend one of her friend's comments, the Crown had failed to prove the complainant lacked the capacity to consent due to intoxication. According to a witness who saw the complainant shortly after the incident, she was unable to dress herself, she had a vacant expression and was zigzagging. As Justice Greene noted in Tariq, the fact situation in Hinds illustrates "….just how intoxicated one must be to lose capacity to consent" (para. 87).

75To summarize on incapacity to consent, I can do no better than to quote Justice Greene from Tariq:

What stands out from all these cases, is that consent to sexual acts does not require a high level of consciousness. While the courts phrase the test as having the ability to understand the risks and consequences associated with the sexual act that he or she is engaged in as well as understanding the sexual nature of the act and the ability to realize that one can refuse, it does not require that the complainant be able to properly evaluate those risks and consequences with a clear mind unencumbered by the effects of alcohol. Bad decisions based on loss of inhibitions due to intoxication is not enough to meet the test for incapacity. Moreover, the court cannot conclude incapacity to consent from the mere fact that the complainant is effectively falling down drunk. The courts have consistently held that this alone is insufficient to confirm whether the complainant had an operating mind. In order to make a finding of incapacity to consent, the case law suggests that the court must be able to identify evidence that establishes, beyond a reasonable doubt that the complainant's cognitive capacity is sufficiently impaired by the consumption of alcohol so as to make her incapable of knowing that she is engaging in a sexual act or that she can refuse to engage in the sexual act (para. 94).

76If the trial judge believes beyond a reasonable doubt that the complainant did not consent, the Crown has proven the absence of consent, thereby establishing the act, or as it is called, the actus reus.

77With respect to mens rea, I note that sexual assault is a crime of general intent (R. v. Chase (1987), 1987 CanLII 23 (SCC), 37 C.C.C. (3d) 97 (S.C.C.) para. 12). To form the requisite mens rea, an accused must intentionally apply force to another with knowledge (actual knowledge, being reckless of, or willfully blind) of a lack of consent. An accused may challenge the Crown's evidence of mens rea by asserting an honest but mistaken belief in consent.

d) Honest but Mistaken Belief in Consent

78With respect to the defence of honest but mistaken belief in consent, the defence, in essence, contains two elements:

• The accused honestly believed that the complainant consented by communicating agreement to engage in sexual conduct by words or conduct; and
• The accused was mistaken in this belief.

79There is no burden of proof on the accused to establish the defence – the burden remains where it should – on the Crown. It is not even necessary for an accused to testify in order to put the defence into play.

80There are limits on an accused's ability to raise this defence. Section 273.2 describes the circumstances in which an accused cannot rely on his belief that the complainant consented to the activity as a defence to a charge of sexual assault. To begin, section 273.2 (a)(ii) of the Criminal Code provides that an accused cannot assert that he had a reasonable belief where his belief arose from his own drunkenness, his recklessness or willful blindness. With respect to the former, the voluntary consumption of alcohol is legally excluded from consideration when considering whether there was a misapprehension of consent (S.T., paras. 122 to 132).

81Although recklessness and willful blindness are distinct concepts, they are not necessarily mutually exclusive. In R. v. Sansregret (1985), 1985 CanLII 79 (SCC), 18 C.C.C. (3d) 223 (S.C.C.), the Supreme Court of Canada explained these concepts and the distinction between the two in the following way:

Willful blindness is distinct from recklessness because, while recklessness involves knowledge of a danger or risk and persistence in a course of conduct which creates a risk that the prohibited result will occur, willful blindness arises where a person who has become aware of the need for some inquiry declines to make the inquiry because he does not wish to know the truth. He would prefer to remain ignorant. The culpability in recklessness is justified by consciousness of the risk and by proceeding in the face of it, while in willful blindness it is justified by the accused's fault in deliberately failing to inquire when he knows there is reason for inquiry. … (para. 22).

82Further, section 273.2(b) places an additional limit on an accused's ability to claim honest but mistaken belief in consent. As is proscribed, an accused cannot advance this defence unless he took reasonable steps in the circumstances to ascertain consent. Importantly, the accused's obligation to take reasonable steps is only based on what he subjectively knows at the time. What steps may be required depend on the circumstances. As the Court of Appeal for Ontario noted in R. v. Crangle, 2010 ONCA 451 leave to appeal to S.C.C. refused, [2010] S.C.C.A. 300:

The jurisprudence makes clear that what is required of an accused in the way of reasonable steps depends on the particular circumstances of the case, and can be more or less, depending on those circumstances…" (para. 29).

Also see: Sansregret; R. v. Jobidon, 1991 CanLII 77 (SCC), [1991] 2 S.C.R. 714 at 739-740; R. v. Livermore (1995), 1995 CanLII 43 (SCC), 102 C.C.C. (3d) 212 at 221 (S.C.C.); R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 S.C.R. 330; R. v. Daigle [1998] S.C.J. No. 54; and R. v. Cornejo (2003), 2003 CanLII 26893 (ON CA), 181 C.C.C. (3d) 206 (Ont. C.A.).

83The Ontario Court of Appeal in R. v. Alboukhari, 2013 ONCA 581, has remarked that "…the approach to determining if the accused has taken reasonable steps to ascertain consent as a 'quasi-objective test.'" The Court cited with approval the following approach trial judges are to undertake, as it was set out in R. v. Malcolm, 2000 MBCA 77, para. 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473:

First, the circumstances known to the accused must be ascertained. Then, the issue which arises is, if a reasonable man was aware of the same circumstances, would he take further steps before proceeding with the sexual activity? If the answer is yes, and the accused has not taken further steps, then the accused is not entitled to the defence of honest belief in consent. If the answer is no, or even maybe, then the accused would not be required to take further steps and the defence will apply (para. 41).

84The Court in Alboukhari summarized this point by stating that, "…while reasonable steps are assessed from an objective point of view, this assessment is informed by the circumstances subjectively known to the accused. The accused is not under a positive obligation to determine all of the relevant circumstances; rather, the assessment is based on the circumstances actually known to him or her at the time … [citation omitted]" (para. 42).

85In cases in which an accused knows that the complainant was quite drunk, he must take reasonable steps to determine whether her apparent consent is a true and voluntary consent. In other words, as Justice Hill put it, a complainant's consent cannot be assumed where an accused knows that she is seriously intoxicated (S.T., para. 159).

86The accused's mistaken belief in consent need not be reasonable in order for the defence to be available. As Morden A.C.J.O. stated in R. v. Darrach (1998), 1998 CanLII 1648 (ON CA), 38 O.R. (3d) 1 (C.A.), at p. 89, affirmed on other grounds 2000 SCC 46, [2000] 2 S.C.R. 443, at p. 90, "[w]ere a person to take reasonable steps, and nonetheless make an unreasonable mistake about the presence of consent, he or she would be entitled to ask the trier of fact to acquit on this basis." However, while noting that while the belief itself need not be reasonable, Justice Hill in R. v. S.T. (1999), O.J. No. 268 (S.C.J.) explained that:

The reasonableness of the belief, however, goes to the issue of whether it was in fact honestly held. The more reasonable the available grounds for the asserted belief, the more likely the trier-of-fact would be amenable to accepting its genuineness. In other words, where, on the known circumstances, a reasonable man would have been conscious of different facts, consequences, risks, and messages, and would have reacted differently than the accused, the more suspect will be the honesty of the accused's asserted misapprehension as to consent...[citations omitted]" (para. 118).

87Further, as Justice Hill expressed it in S.T., the trial judge's analysis of reasonable grounds "…involves a search for what the ordinary man, in full possession of his faculties, would have appreciated in the circumstances. Self-induced intoxication is irrelevant to the existence of reasonable grounds" (para. 119). As Justice Hill also noted in that case, the identification of reasonable steps must respect the sexual autonomy and dignity of the complainant (para. 151).

Analysis

a) Overview

88I have spent considerable time reviewing the whole of the evidence in this case and analyzing it according to the legal principles I have set out above. As stated at the outset, I am convinced beyond a reasonable doubt that C.P. forced sexual intercourse with R.D. knowing that she was incapable of consenting due to extreme intoxication. I am also convinced beyond a reasonable doubt that he did not possess an honest belief that R.D. was consenting. I will now explain how I have come to these conclusions.

b) R.D.'s Acute State of Intoxication and the Timing of the Sexual Activity in Question

89My conclusion in this case is based on a number of factors. I begin with the most important one, the evidence I accept about R.D.'s state of intoxication at or near the time of the sexual activity.

90As the trial unfolded, it seemed there was a lack of clarity with respect to the timing of the sexual activity. As noted in the review of the evidence, the Crown witnesses were only able to make a guess about when the group arrived at the beach. E.G. and G.G. did not witness any sexual activity and therefore could not help pinpoint the time it happened. R.D. had fragments of memory but certainly was not able to specify the timing of the incident. Had the sexual activity occurred closer in time to when the group first arrived – when R.D. was drinking but not yet feeling significant effects of her alcohol consumption – the Crown may well have had more difficulty establishing that R.D. lacked the capacity to consent. The further in time, however, to the point when R.D. was asleep, motionless, incomprehensible, and vomiting, the more likely it is that the Crown would be able to establish that R.D. lacked the minimal capacity to consent. The combination of E.G.'s and C.P.'s evidence, however, has answered the question of when during the evening the sexual activity took place.

91When E.G. arrived at the beach party, the very first thing she saw was R.D. lying on the ground. E.G. went over to her instantly. R.D. had vomited on herself and was asleep when E.G. got to her, so she woke R.D. up and asked her if she could hear her. R.D. was responsive only enough to open her eyes and look at E.G. As E.G. described it, R.D. and the other young woman were both "incapable of talking because they were so drunk". All R.D. said was that she was cold. E.G.'s first reaction was to try and stop her from throwing up on herself and potentially choking on her vomit. E.G. was not challenged on these aspects of her evidence at all - she was only challenged as to the time she had arrived. Further, C.P. confirmed in his testimony that E.G. went directly to R.D. when she arrived.

92On this latter, central point, C.P. told the court that after he ejaculated he stood up at the same time as he heard "that Jeremy and E.G. …had arrived". He decided to go over and talk with them. He said that Jeremy and E.G. were at the bottom of the hill – the place where one reaches the base of the hill upon arriving at the beach. C.P. explained that he spoke with his friends for about 10 to 15 minutes and then they went over to R.D. He later elaborated that E.G. went right over to R.D. when she arrived.

93Although C.P. says he talked with the new arrivals for a short period before they all went over to R.D., I reject that he spoke with E.G. before she tended to R.D. First, as just noted, there is an internal contradiction in his evidence. Second, he was intoxicated at this point. Indeed, C.P. told the court that his friend, Jeremy, told him to sit down because he was too drunk to be walking about. Third, I accept E.G.'s evidence on this point. She had had very little to drink that evening, thus her memory is not suspect on that basis. Nor was she challenged on the fact that she went immediately to R.D. when she arrived.

94Further, E.G. never told the court that she talked to C.P. when she arrived. She testified that the only time she saw C.P. was when he was helping R.D., along with others, up the hill. I find that E.G. was a credible and reliable witness. She related events clearly and seemingly without exaggeration. E.G. allowed for the possibility that she was mistaken about the time she arrived and she asked for clarification when she did not understand a question. She displayed no animus towards C.P. Importantly, she was not challenged on what I have concluded is the crux of her evidence.

95This evidence I have just reviewed leads me to conclude beyond a reasonable doubt that R.D. was extremely intoxicated at the time C.P. admitted to being with her and admitted to having sex with her. E.G. found R.D. having already vomited. She was found unconscious and generally unresponsive - all within a very, very short period of time from when C.P., on his own evidence, had just ejaculated inside her.

96There is further support in the evidence about the severity of R.D.'s state of intoxication that evening. As outlined above, G.G.'s evidence was that R.D. was having difficulty both walking and talking. G.G. also said that near the time she was leaving, R.D. was lying down, looking very sleepy and that she started vomiting. G.G.'s evidence was that she did not see E.G. before she left around 12:30 a.m.; she only saw her when she came back to the beach with her mother.

97As with E.G., I find that G.G. was a credible and reliable witness. She was challenged on the actual time of when she was leaving, but she had a solid foundation for testifying when it was and her mother's evidence confirms the general time that G.G. left the beach. Further, G.G. displayed no animus towards C.P., and she recognized that there were aspects of the events she did not remember.

98Additionally, L.L., who spoke to R.D. around 1:30 a.m. or 2:00 a.m. also testified to R.D.'s severe drunkenness. L.L. told the court that during the couple of minutes he spoke to R.D. it was clear to him that she was really drunk - she was slurring her words and kept repeating herself. He also said that she kept apologizing and when he asked her what she was sorry for she did not respond to his question. He said it was clear that she was too drunk to even have a discussion. He said he had seen her drink two or three times in the past, but had never observed her that drunk, nor had he observed her ever being so drunk that she lost consciousness.

99Moreover, when everyone was leaving the beach, R.D. was intoxicated to the extent that some of her friends had to help her walk up the hill. Even at 6:00 a.m., R.D. was still in such bad shape that her mother thought her daughter had alcohol poisoning. As J.G. testified, she was shocked at her daughter's appearance and state.

100Clearly, on all accounts, R.D. drank a significant amount of alcohol that evening before E.G. arrived and found her unconscious, vomit-laden and generally unresponsive.

101Support for R.D.'s state of intoxication when she was lying on the rocks is also found in her own evidence. She told the police that she remembered seeing a figure – she thought it was C.P. – approach her. She was so inebriated that the figure looked to her like a shadow. She thought she could remember C.P. kissing her. The next memory she had was of her pulling up her pants from her knee area and seeing him walk away.

102I have approached R.D.'s evidence with serious caution. I acknowledge that an inability to remember something that happened does not necessarily mean that the person was acting without capacity - or intent - at the time it happened (R. v. Fornal, 2010 ONCJ 64 para. 46). Furthermore, R.D.'s evidence - because of the faults in her memory and the weight that can sensibly be given to her evidence given she was not cross-examined - would not go a considerable way on its own toward meeting the high burden the Crown bears. I am also mindful that, although she was cautioned that she could be charged if she lied to the police, her statement was not under oath. However, when considering the whole of the evidence, R.D.'s evidence tends to support the conclusion that she was very, very drunk near the time the sexual assault occurred.

103It is important to be clear about what I am taking and not taking from R.D.'s evidence. Without the evidence of E.G., G.G. and the accused, I could not have come to the conclusions I have reached. That R.D. may have passed out, at some point, and has little memory of the evening, is not, in and of itself, enough to support a conviction. The evidentiary effect of alcohol induced amnesia, or a "black out" has been considered in other cases. Both counsel seemed to take it as a given that R.D.'s memory loss was connected to how much she drank. In any event, what I can take from R.D.'s lack of memory is the fact that she does not remember much of what happened. Justice Ducharme explained the import of lack of memory as follows in R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (S.C.J.):

...Absent expert evidence, a loss of memory or a 'blackout' is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, "a complete loss of memory for a portion of time during a drinking episode." In a sexual assault case this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 CanLII 312 (SCC), 116 C.C.C. (3d) 289 at 296 (S.C.C.), '[t] he parties testimony is usually the most important evidence in sexual assault cases." Esau is particularly relevant to the case at bar because it is a sexual assault case involving a complainant with no memory of the relevant time. In Esau at 297, Justice Major said of the complainant's memory loss, "[a]ny number of things may have happened during the period in which she had no memory." Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so [emphasis mine] (para. 18).

104Of course, the absence of evidence of consent or lack thereof due to the impact of alcohol on a complainant's memory is not necessarily fatal to the prosecution - especially where, as here, the Crown has presented other significant evidence. As Justice Ducharme concluded in J.R.:

This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. … (para. 20).

105I also note that I have taken nothing from R.D.'s statement to the police that she did not think she wanted to have sex with C.P. that night and that she would not have done so the day after. In some cases, the Crown has relied on evidence from the complainant that, even though they have no memory of what occurred, they know they would not have consented to sexual activity with the accused (R. v. Meikle [2011] O.J. No. 887 (SCJ)). It is legally permissible for a judge to consider a complainant's belief as to how they would have behaved and can factor that evidence into the consent equation. However, here, I decline to do so. Unlike cases in which trial judges have taken something from a complainant's adamant evidence that they would not have consented, R.D. candidly admitted she was unsure. Moreover, as defence counsel pointed out, her answer with respect to how she must have felt the day after was left unexplored. There could be many reasons why she would not have had sex with C.P. the day after that would not have impacted her willingness to do so the night before.

106The fact that R.D. fell asleep or passed out - on E.G.'s, G.G.'s as well as her own evidence - is circumstantial evidence that I have considered and which has permitted me to draw certain inferences about her level of intoxication. On all of the evidence I have just reviewed, the Crown has met its very high burden of establishing that at the time of the sexual activity, R.D. was incapable of consenting. The fact that she may have asked for water or for a blanket, or was able to open her eyes when E.G. spoke to her, is not the type of evidence that speaks to even the bare minimum of capacity required under the law. To again quote from Justice Hill: "While capacity to consent to sexual activity may not amount to a very significant standard of cognitive awareness, equating relatively primitive actions such as walking a short distance, or unassisted vomiting, to capacity to consent to sex is entirely unpersuasive" (J.W.M. para. 56. Also see para. 19 of Tariq).

c) Additional Reasons Why I Do Not Accept C.P.'s Evidence and Am Not Left in Doubt by It

107In addition to the convincing and incriminatory evidence reviewed above, there are additional reasons why I disbelieve the accused and am not left with a reasonable doubt about his evidence that R.D. seemed, in his word, "fine" during the sexual activity.

108The main flaw in C.P.'s evidence is that he was, at times, evasive and rattled. Further, when questioned on certain details, his responses proved problematic.

109With respect to examples of evasiveness, under cross-examination C.P. seemed quite reluctant to admit his level of intoxication. Both E.G. and G.G. described him as being drunk, but not as drunk as R.D. C.P. himself told the court that a friend of his commented on how drunk he was and told him to sit down. C.P. himself told the court that he had been drinking right along with R.D. from the time they left the LCBO. His answer, then, to the Crown's suggestion that it was a fair statement that he was feeling the effects of alcohol should have been yes. Instead, it was no.

110It was clear to me through the exchanges on point that C.P. was trying to downplay the impact of his drunken state on his ability to remember what happened and on his actions that evening. I am troubled by C.P.s apparent unwillingness to admit that his level of intoxication could account for at least some of his lack of recollection about certain details. He said was not able to remember anything about, for example:

• What he and R.D. spoke about when they were on the mattress by the bonfire;
• How the kissing started between them by the bonfire;
• What he and R.D. spoke about when they were on the rocks;
• How the kissing started between them on the rocks; and
• Whether R.D. touched him when he was on the rocks.

111As another example, when the Crown asked him if he was feeling good when touching R.D.'s crotch, he said he did not want to answer. When the Crown clarified what she was asking and pressed again, C.P, said he did not remember. When asked whether R.D. was doing anything while they were having, on his evidence, consensual intercourse, C.P. again displayed a reluctance to answer.

112I am also convinced - because of the manner and tone in which C.P. came across and the language he used when asked about certain events or details - that he was not being forthright with the court. For example, C.P. used the expression 'I believe' many times. How this came across was two-fold. Sometimes it seemed he was guessing. At other times, what he conveyed was the sense that he desperately wanted it to be the case that something had happened, but in fact, it had not. It is hard to articulate with precision how his use of the phrase struck me in this manner, but it did, and did repeatedly.

113I have considered whether some of the accused's pauses or failure to answer questions in a fluid and forthright manner could stem from his embarrassment at having to describe certain details. I accept that this might have been the case in certain circumstances, such as his having to describe his penis being erect. I am also cognizant that a trier's subjective perception of a witness' demeanour can be an unreliable predictor of the accuracy of the evidence given by a witness.

114Moreover, there are aspects of C.P.'s evidence that did not suffer from the flaws I have just described. I note that if the accused was as drunk as witnesses suggest, it would be understandable for him to have gaps in his memory. He was also remembering an event from a year ago. C.P. is also only 16 years old and I suspect, was nervous when testifying, especially under the skilled cross-examination of counsel. I am, by no means, criticizing his evidence in its entirety. What I have set out above are the many reasons upon which I rejected his evidence on certain, key points.

d) R.D. Was Incapacitated by Alcohol

115As discussed above, in order to be found to have lacked the capacity to consent, R.D. must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose to decline to participate. Given R.D.'s state and the evidence before me that I have accepted about when the sexual intercourse occurred, I am convinced, beyond any doubt, that R.D. was incapacitated. The notion that for a very brief period of time, R.D. was able to collect her mental acuity and ask C.P. to "fuck" her is without foundation on the facts before me. To borrow from Justice Duncan's language in Cedeno, to suggest that R.D. was able to "muster up sufficient mental capacity" to give her consent to sex at or very near the point where R.D. was asleep or passed out, barely able to comprehend what was happening and covered in her own vomit is to postulate "a sort of island of acuity in a sea of oblivion" (para. 20).

116The only reasonable conclusion on the whole of the evidence is that R.D. was so intoxicated that she lacked the bare cognitive ability required to meet the threshold of incapacity.

e) The Requisite Mens Rea

117The finding of incapacity does not end the inquiry. While the actus reus has been established, the Crown must prove that C.P. possessed the requisite mens rea. I have concluded beyond a reasonable doubt that C.P. knew or was reckless or wilfully blind to the fact that R.D. was so intoxicated that she could not have consented to sexual activity. Her impairment was obvious to E.G., G.G. and on his own evidence, C.P.

118With reference to his own evidence, C.P. was with R.D. from the time they left the LCBO and got to the beach. As he testified, they were taking turns drinking straight from the bottle of vodka. They drank while walking to the streetcar and while on the streetcar. Further, when they got to the beach and soon thereafter sat down near the bonfire, they continued drinking. It is simply not possible that he was unaware that she was drinking a lot of alcohol.

119G.G. testified that R.D. was having difficulty walking - she was wobbly and stumbling. G.G. also said that R.D. was having difficulty talking. The evidence before me is that, once R.D. went to the rocks from the bonfire, she was there for the remainder of the time until the mothers came to pick up their daughters. The time it appears that G.G. could have seen R.D. having such difficulties is during the time period between the bonfire and the rocks. I cannot conclude for certain that C.P. was witness to these difficulties during this time period, but I can draw the conclusion, and do, that if she was having these kinds of difficulties moments before he joined her by the rocks, R.D. would not have simply ceased displaying obvious indicia of impairment while he was with her.

120More importantly, as I reviewed above, within a very short period of time of the sexual activity, R.D. was falling asleep, had vomit on her, did not appear to be comprehending what E.G. was saying and was unable to meaningfully respond. In his testimony, C.P. put himself with R.D. during this time period. There is simply no room to doubt his knowledge of how drunk R.D. really was at the relevant time.

121I further find that R.D. did not ask C.P. to have sexual intercourse with her - and even if she had, she was too intoxicated to have given voluntary consent to sexual activity. I have discussed above why there are many aspects of C.P.'s evidence that I have rejected. For those reasons, I find it extremely difficult to believe that R.D. asked C.P. to "fuck me". More to the point, I have serious misgivings about whether R.D. said this because it would have been out of the blue. Even C.P. said he was taken by surprise by her asking him to "fuck me" because they were not close. R.D. and C.P. had socialized with their friends at Tim Horton's regularly for two months. The evidence before me was that they all sat in a group and sometimes C.P. and R.D. would be beside each other, seemingly not by design. C.P. also may have been to her house on one occasion. While it is true that they were talking and kissing, the nature of their relationship calls into question - on the facts before me - that it was a simple and natural progression for R.D. to ask C.P. to "fuck me" on this beach with people standing around nearby. I find she did not ask C.P. to "fuck me".

122To be clear, I certainly recognize that someone who is "just friends" with another person can change their mind about the nature of the relationship and decide to take it further. I am also cognizant that alcohol can reduce a person's inhibitions (R. v. J.R., 2006 CanLII 22658 (ON SC), [2006] O.J. No. 2698 (Sup. Ct.) paras. 30 and 39). In any event, the pertinent question here is not whether R.D. might have had reduced inhibitions that led to her to have sex with her friend. The question is whether the Crown has proven beyond a reasonable doubt that she was so very drunk that she lacked the minimal level of capacity to make that choice. I have already concluded that the Crown has met this high burden.

f) C.P. Did Not Have an Honest but Mistaken Belief

123The Crown argues that C.P. is legally disentitled to rely on the defence of honest but mistaken belief. Even if I analyze this question accepting that R.D. asked C.P. to "fuck me", I conclude that C.P. was not entitled to rely on those words. In the context of this case, C.P. was simply not able to take those words, if R.D. said them, at face value.

124I have concluded that C.P. is barred from relying on honest but mistaken belief on a number of fronts. To begin, C.P. was either reckless or willfully blind to R.D.'s lack of capacity to consent. When assessing an assertion of honest but mistaken belief, the circumstances known to the accused at the time are important. This is not a case in which C.P. had no idea that R.D. was drinking alcohol. To his knowledge, R.D. had consumed a considerable amount of alcohol – straight vodka - for at least an hour. The fact that he said he did not keep track of how many swigs of straight alcohol she had is beside the point. The point is, he knew she had been drinking for quite some time. Clearly, anyone would be cognizant of the obvious risk that she was too drunk to properly assess her circumstances and give consent.

125Further, at the time he claims to have been having consensual sex with her, R.D. was in and out of consciousness, had vomited and was "really, really really" drunk, as E.G. described it in her evidence. In these circumstances, it is incumbent on a person to ascertain that they actually do have a voluntary agreement to engage in the sexual activity in question. I find, beyond a reasonable doubt, that as the Crown put it, C.P. went ahead and had sex with R.D. with reckless abandon. He forged ahead, knowing there existed a danger or risk that she was too drunk. Further, he was aware of a need for some inquiry but he did not wish to pursue the truth - he preferred to remain ignorant.

126Another circumstance known to C.P. at the time was that he and R.D. were not in a romantic relationship. There is no evidence apart from her kissing him within an hour or so of the sexual activity that she had ever expressed any interest in him beyond a platonic friendship. To be clear, as I explained above, I am not saying that two people must be in a relationship to have sex, nor am I saying that had they been in a romantic relationship, it would have been permissible to have sex with a person who was so clearly intoxicated. What I am saying is that given her level of intoxication, the context of their friendship was such that he should have made further inquiry (S.T., para. 121).

127On these facts, not only was C.P. willfully blind or reckless about whether the complainant was consenting to have sex with him, he also failed to take reasonable steps to ascertain that R.D. was offering her voluntary consent to have sex. He did not say anything that could have been effective in ensuring valid consent, a question as simple as, "Are you sure you want to have sex?" Or, "You are not too drunk, are you?" C.P., on his own evidence, penetrated R.D. with his penis without any discussion of protection. He did not ask her if he should use a condom, nor did he tell her he was going to withdraw his penis before he ejaculated. Instead, he asked nothing.

128The question I have to ask is whether C.P. honestly believed that the complainant communicated consent. Given the facts as I have found them, I conclude that the Crown has established beyond a reasonable doubt that the answer to that question is no.

Conclusion

129On the whole of the evidence, I am convinced beyond a reasonable doubt that C.P. forced sexual intercourse on R.D. while she was incapable of consenting due to extreme intoxication. I am also convinced beyond a reasonable doubt that C.P. did not have an honest belief that she was consenting. Therefore, I have found C.P. guilty of sexual assault.

130I wish to thank counsel for the manner in which they approached this difficult case. Counsel were very professional, respectful, well-prepared, efficient and cooperative.