WARNING

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

A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:

486.4 Order restricting publication — sexual offences.

(1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of

(a) any of the following offences:

(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 172, 172.1, 173, 210, 211, 212, 213, 271, 272, 273, 279.01, 279.02, 279.03, 346 or 347,

(ii) an offence under section 144 (rape), 145 (attempt to commit rape), 149 (indecent assault on female), 156 (indecent assault on male) or 245 (common assault) or subsection 246(1) (assault with intent) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 4, 1983, or

(iii) an offence under subsection 146(1) (sexual intercourse with a female under 14) or (2) (sexual intercourse with a female between 14 and 16) or section 151 (seduction of a female between 16 and 18), 153 (sexual intercourse with step-daughter), 155 (buggery or bestiality), 157 (gross indecency), 166 (parent or guardian procuring defilement) or 167 (householder permitting defilement) of the Criminal Code, chapter C-34 of the Revised Statutes of Canada, 1970, as it read immediately before January 1, 1988; or

(b) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in any of subparagraphs (a)(i) to (iii).

(2) Mandatory order on application.

In proceedings in respect of the offences referred to in paragraph (1)(a) or (b), the presiding judge or justice shall

(a) at the first reasonable opportunity, inform any witness under the age of eighteen years and the complainant of the right to make an application for the order; and

(b) on application made by the complainant, the prosecutor or any such witness, make the order.

486.6 Offence.

(1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.

Court Information

Court File No.: Toronto

Date: 2016-10-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

M.T.

Before: Justice Mara Greene

Reasons for Judgement Released: October 7, 2016

Counsel:

D. Robitaille and N. Langille for M.T.

J. Witkin and N. Kruger for the Crown

Judgment

M.B. Greene J.:

Introduction

[1] On July 17, 2015, K.S. went with some friends to a bar to celebrate a friend's birthday. She woke up the next morning at approximately 11:00 or 11:30 a.m. in a hotel room. She was naked, the tampon she had put in the night before was gone and she had no recollection of how she arrived at the hotel or with whom she had arrived. K.S. knew one thing: that someone had sexual intercourse with her. K.S. contacted the front desk at the hotel and discovered the name of the person who registered for the room and asked her roommate to come pick her up. Ultimately the defendant was identified as the person who was with K.S. in the early morning hours of July 18, 2015. He was arrested and charged with sexual assault.

[2] At trial, Crown counsel argued that despite K.S.' lack of memory about what occurred, the totality of the evidence presented at trial supports the sole inference that K.S. did not consent to sexual intercourse or any other sexual acts with Mr. M.T.. In the alternative, Crown counsel argued that even if I am left in a reasonable doubt about actual consent, I should still convict Mr. M.T. because K.S. lacked the capacity to consent given her advanced state of intoxication. Counsel for Mr. M.T. argued that since K.S. has no memory of what took place in that hotel room, there is no evidence that she did not consent to what took place. She further argued that while K.S. was clearly intoxicated on July 18, 2015, she was not so intoxicated to have lost the capacity to consent. To that end counsel for Mr. M.T. pointed to specific pieces of evidence that she argued should leave the court with a reasonable doubt about K.S.' capacity or incapacity to consent.

Summary of Evidence

i) K.S.' memories of July 18, 2015

[3] On July 17, 2015, K.S. came home from work, ate some dinner and by 11:30 p.m. or so attended at the bar, the Lost and Found, to join a celebration with her friends. K.S. had not consumed any alcohol prior to attending at the Lost and Found. According to K.S., once at the bar, she consumed at a minimum two vodkas mixed with red bull, two straight shots of vodka and one glass of Hennessy. She may have had one additional drink of hard liquor. K.S. consumed these drinks over the two and half hours that she was at the Lost and Found. Mr. K., one of K.S.' friends who was also at the bar that night, testified that he saw K.S. have a glass of champagne as well. K.S. did not recall this. Throughout the night, K.S. kept with her group of friends. While other men tried to approach her throughout the night, K.S. largely paid them no attention.

[4] K.S. testified that her last memory of the night was just before 2:00 a.m. when she said good-bye to some friends who were leaving. K.S. was going to remain as both her roommate, N., and Mr. K. were staying a bit longer. After saying good-bye to these friends, K.S. walked to the washroom. This is where her memory ends.

[5] K.S.' next memory is in the form a flash that has no context. According to K.S., the memory is of her lying in a bed with a male with brown skin and a goatee over top of her. He did not have any weight on her but his hands were on either side of her head. Defence counsel used the term hovering, a term that I think best articulates what K.S. described in court. While this male, who must have been the defendant, was hovering over her, K.S. recalled saying "no" two to three times. K.S. could not recall when this happened exactly nor could she recall what, if anything, the male did in response to her saying no.

[6] K.S.' next memory is of waking up in a strange hotel room at 11:00 or 11:30 a.m.

ii) The Lost and Found and the E[...]

[7] While K.S. has no memory as to what occurred between 2:00 a.m. and 11:00 a.m. except for that one flash of a memory, the court was still provided with detailed evidence about K.S.' movements as they were readily reconstructed from witnesses, surveillance cameras and telephone records.

[8] Mr. K. testified that he was paying the bill and preparing to leave when K.S. went to the washroom. This was the last he saw of K.S. that night. He did not know where K.S. went after going to the washroom.

[9] According to K.S.' cellular telephone records, at 2:09 a.m., while still at the Lost and Found, K.S. contacted a male named P.M.. K.S. barely knew Mr. P.M. and at trial testified that she could not understand why she contacted him that night. Regardless, it is clear that she telephoned Mr. P.M. and then met him outside a bar called the E[...].

[10] Mr. P.M. worked doing public relations and hosting at the E[...]. As a result, he had his own booth there and after receiving K.S.' call, met her outside the bar and brought her to his booth. Mr. M.T. was already at this booth by the time K.S. arrived. Mr. P.M. testified that he had no independent recollection of his interactions with K.S. that morning. He was able, however, to identify himself, K.S. and others including the defendant on the videos taken from the surveillance cameras at the E[...] that night.

[11] The videos from the E[...] show Mr. P.M. and K.S. entering the E[...] at 2:20 a.m.. Counsel agreed that the time stamp at the E[...] was likely off by a few minutes. In my view this has no real impact on the case before me.

[12] At 2:21 a.m., Mr. P.M. and K.S. arrived at the booth where Mr. M.T., a server and some others were socializing. K.S. was introduced to those around the table. Moments after her arrival, a server handed a shot glass with a shot a vodka in it to K.S. K.S drank this shot of alcohol.

[13] According to K.S.' phone, at 2:23 a.m. she sent a text message to a person named M. that stated "need you". M. did not reply until the next morning. His response, which was sent at 6:44am was "Lol What".

[14] At trial K.S. was asked if she could think of any reason for sending this text. K.S. could not think of any reason she would have sent this text message unless she was somewhere she did not want to be. I note, however, that at 2:23 a.m. through to 2:28 a.m. Mr. P.M. was still at the bar, and K.S. does not appear to look as though she did not want to be with Mr. P.M.. Instead, she is seen dancing with Mr. P.M. and Mr. M.T.. She appears to having a good time.

[15] At around this same time, K.S. was offered more alcohol. In response, K.S. made a hand gesture which I interpret as her turning down the offer of alcohol. Two minutes later, Mr. M.T. is seen on the video pulling K.S. over and giving her a sip of alcohol directly from the bottle. Mr. M.T. and Mr. P.M. then patted K.S.' buttocks. Immediately after this, K.S. walked past the defendant and started talking and dancing with Mr. P.M.. Three minutes later, Mr. P.M. left the E[...].

[16] K.S. watched the video in court and testified that from the video it looks like she was "into" Mr. P.M. even though she has no recollection of ever being interested in Mr. P.M.. K.S. testified that her behaviour on the video was surprising to her. She was talking and acting with a stranger in a way that she does not normally behave.

[17] After Mr. P.M. left the bar, Mr. M.T. poured another sip of vodka from the bottle into K.S' mouth. K.S. took what appears to be a small sip then pushed the bottle away. At 2:30 a.m., K.S. appears to lose her balance and fell onto the nearest booth.

[18] Over the next two minutes, K.S. danced with Mr. M.T. and took another sip of alcohol directly from the bottle. Twice Mr. M.T. moved close to K.S. and touched her. On both occasions K.S. initially responded to Mr. M.T. by touching him or dancing with him but on both occasions, within seconds, she stepped away from Mr. M.T..

[19] At 2:32 a.m., K.S. sat back down on the bench seat. In her summary of the video, the Crown described the next minute of events as follows: "S. leans over the banquette facing out of the window, facing away from accused, and uses phone. Accused slaps her buttocks and after a brief pause she moves her buttocks back and forth. Accused leans over S., his chest to her back and his groin to her buttocks, and intermittently thrusts his pelvis and speaks in her rear while she is using her phone". The next act visible on the video is K.S. making some arm motion to Mr. M.T.. It appears that she was telling him to get off of her. Mr. M.T. responded by moving off of K.S. and then slapped her buttocks. K.S. remained on her phone during this whole event.

[20] At time stamp 2:34 Mr. M.T. tried to give K.S. more alcohol. K.S. can be seen shaking her head no.

[21] At time stamp 2:35, which may actually be 2:32 a.m. in real time, Mr. M.T. and K.S. left the bar.

[22] From the time K.S. entered the bar at approximately 2:20 am., until she left at approximately 2:35 am., K.S. made a couple of calls to Mr. K., none of which connected, she called Mr. P.M. moments after he left the bar and made three calls to her friend N..

[23] Surveillance cameras captured K.S. and Mr. M.T. leaving the bar. K.S.' ability to walk appears severely hampered. Mr. M.T. helped her walk. Despite this assistance, K.S. still swayed back and forth as she walked down the hallway and down the entrance steps.

iii) The T[…] Hotel

[24] After leaving the E[...], K.S. and Mr. M.T. ended up at the T[…] Hotel. According to the video at the hotel, they arrived at 2:37 a.m. K.S. was unable to walk straight as she entered the hotel. Her ability to walk improved momentarily as she walked across the lobby, although she was still being held up by Mr. M.T..

[25] The registration clerk from the hotel testified at trial. She remembered K.S. coming into the hotel. The registration clerk testified that K.S. appeared drunk as she was unable to keep her balance and did not speak at all. The registration sheet from the hotel had K.S.' name on it. The clerk testified that K.S. did not sign this herself. It was Mr. M.T. that signed the paper. K.S. was shown a copy of this registration sheet and testified that her name was not written in her handwriting. The registration clerk further testified that at one point Mr. M.T. received a telephone call. During this telephone call, the clerk heard Mr. M.T. say something about having a girl. During cross-examination, it became clear that the clerk's memory of July 18, 2015 was poor. She thought that K.S. was at the registration desk beside Mr. M.T. during the entire check in, when she was not. Moreover, the phone call she referenced is not on the call log sheet entered as an exhibit at trial. According to the summary of Mr. M.T.'s phone records from that morning, Mr. M.T. did not make or receive any calls between 2:05 and 2:52 am.

[26] The surveillance cameras at the T[…] hotel cut out from 2:38am until 2:41 a.m. During this time, K.S. received a telephone call from Mr. K.. According to Mr. K., he was at the diner attached to the T[…] hotel when he made this call to K.S.

[27] This telephone call was brief, lasting a total of 27 seconds. Mr. K. testified that he told K.S. that he was at the diner in the T[…] Hotel. K.S. told Mr. K. that she was "on the way" and to "wait for her". Mr. K. then told her not to worry about getting in because he knows the man that runs the place. Mr. K. testified that it sounded as though K.S. was outside during this phone conversation as it was loud where she was. Her speech did not sound slurred to him and while it sounded like she had few drinks in her, he was not concerned and expected her to arrive at the diner. What is clear from the video evidence is that K.S. must have been inside the hotel at the time this call was made. Counsel conceded that the videos from the T[…] Hotel were accurate to within 1-2 minutes. According to the time stamp, K.S. and Mr. M.T. arrived at the entrance at 2:37 a.m. Allowing for a two minute error, they arrived anywhere from 2:35 am. to 2:39 a.m. The call from Mr. K. was made at 2:39 and lasted for 27 seconds. The only reasonable conclusion from this is that despite Mr. K.' s impression that K.S. was outside, she was in fact inside the hotel when this call was made.

[28] The video at the lobby starts again at time stamp 2:41. In this video, K.S. has walked away from Mr. M.T. and is standing at the far end of the check in counter. She appears to be leaning on the counter as a means of support, to stop herself from falling. When she looks up in the camera, K.S. looks dazed. An unknown male, who appears to be a security person, is a few paces away from K.S. He appears to be watching K.S. but K.S. did not look at him or acknowledge him. A moment later, K.S. pulled out her phone and appears to touch her phone screen. She then put the phone to her ear as if to try to speak to the person she was calling. Mr. M.T. then walked over and upon his arrival, K.S. hung up the phone. According to snapshots from K.S.' phone, this call was to Mr. P.M. but it was cancelled before it connected to Mr. P.M.'s phone.

[29] The surveillance video from the elevator at the T[…] hotel was also secured. In this video, Mr. M.T. looks completely sober. In fact in all the footage, Mr. M.T. looks sober. In this video, his sobriety provides a sharp contrast to K.S. who now appears very intoxicated, lethargic and at times, dazed. During the short elevator ride, there is no verbal communication between K.S. and Mr. M.T.. For the majority of the ride, K.S. is leaning against the mirrored wall of the elevator. She looks like she is falling asleep. A few times, K.S. opened her eyes. On these occasions, she appeared to be dazed and out of it. At one point Mr. M.T. can be seen holding out his arm to her and she put her arm in his. As the elevator stopped, K.S. looked up with a dazed expression on her face. She then walked with Mr. M.T. to the door, swaying as she walked. As they exited the elevator, K.S' arms went around Mr. M.T. as though she was holding onto him for support.

[30] After leaving the elevator, K.S. made a few more telephone calls. Two to T.S. (who had also been at the Lost and Found that night), one to Mr. P.M.. All these calls were cancelled before they could connect. K.S.' last call was made at 2:46 to Mr. K.. He did not pick up. Other calls were made to K.S. after this but K.S. did not answer her phone.

[31] Between 3:00a.m and 3:15a.m., two men are seen waiting in the lobby. Both were trying to get to Mr. M.T.'s room. The men eventually left. Mr. M.T. is on his telephone a few times between the hours of 2:52 am and 3:31 a.m. His first conversation was at 2:53 a.m., for sixteen seconds. The next call was at 3:02 a.m. for thirteen seconds. The next call was at 3:14 a.m. for 25 seconds, then at 3:28 and 3:31 for 57 seconds and one minute and thirteen seconds respectively.

iv) The next morning

[32] At 9am the video at the T[…] hotel shows Mr. M.T. checking out and leaving.

[33] At 11:00 or 11:30 am, K.S. woke up to the sound of her telephone ringing. It was K.S.' sister. K.S. did not know where she was or how she got there. She was very upset. K.S. then called the front desk to find out to whom the room was registered. At first they would not reveal this information. Later, at the urging of her roommate, K.S. called back and advised the front desk that she had been raped. At this point, the front desk advised that a Mr. M.T. paid for the room.

[34] K.S. testified that upon waking, she felt like she had been violated and that someone had penetrated her. She was naked in bed, when she usually slept clothed and the tampon she had been wearing earlier in the night was removed and had not been replaced by a new tampon.

[35] K.S. called her friends and asked them to pick her up. She was picked up and taken back to her residence where she called the police. Mr. K. testified that when they picked up K S. she was crying. She just went to the backseat of the car, put her head on N.'s lap and cried.

[36] K.S. went to the hospital for a sexual assault evidence kit. At 2:13 p.m. she saw a nurse who examined her. At this time no visible injuries were seen. Swabs were taken at the hospital. The DNA found on these swabs belonged to Mr. M.T..

[37] A few days later K.S. noticed a small bruise to her chest. This had not been there before. She also noticed a mark to her elbow and a bruise on her leg. The police took photos of these injuries.

[38] K.S. testified that while she did not recall what took place with Mr. M.T., she is confident that she would not have consented to having sex with Mr. M.T.. While she acted out of character for much of the night, when she watched the video, she did not look interested in him.

v) K.S.' level of intoxication

[39] K.S. testified that she did not feel drunk at the Lost and Found. Given her memory loss, she could not speak to her level of impairment after 2:00 a.m. Mr. K. testified that K.S. appeared "tipsy" while at the Lost and Found.

[40] K.S. testified that she has never fully blacked out before even when she had consumed more alcohol than she did on the night in question. She has on occasion blacked out bits and pieces of time. On those occasions she had more to drink than she did on the night in question.

[41] K.S. watched the video of herself at the E[...]. She testified that in her opinion she looked drunk at the E[...] bar.

[42] The videos from the different locations establish that K.S.' gross motor skills diminished throughout the night and were worse when at the T[…] Hotel then when she was at the E[...]. K.S. retained the capacity to use her phone and even had a conversation with Mr. K. at 2:39 a.m.. During this call, Mr. K. did not think that K.S. was so impaired as to raise concerns about her safety or her ability to meet him at the T[…] Hotel Diner.

[43] Dr. Daryl Mayers, a toxicologist at CFS, was qualified to give expert evidence in the area of absorption and elimination of alcohol from the body and the testing for the presence of alcohol and other substances in the body.

[44] Dr. Mayers was presented with numerous hypotheticals and provided potential blood alcohol concentrations for the different hypotheticals. Given the uncertainties about how much K.S. actually consumed and given the fact that K.S. ' actual elimination rate was unknown, Dr. Mayers testified that by the time K.S. was at the T[…] hotel, her blood alcohol concentration could have been anywhere from 130mg of alcohol in 100ml of blood to 225 mg of alcohol in 100ml of blood. He also testified that K.S.' blood alcohol concentration would have been higher when at the hotel then it was when she arrived at the E[...].

[45] Dr. Mayers could not provide expert evidence about K.S.' potential blood alcohol concentration from watching the video alone. He was, however, able to provide general information about the relationship between blood alcohol concentration levels and the body. Dr. Mayers testified that a moderate drinker with a blood alcohol concentration in the range of 155mg of alcohol in 100ml of blood and 200 mg of alcohol in 100ml of blood would be showing signs of impairment. It would likely cause slurred speech, it would impact the person's fine motor skills and would impair gross motor skills as well. A person who had consumed sufficient alcohol to reach this blood alcohol concentration may have a hard time walking or turning around. Attention to detail becomes negatively affected as one's blood alcohol concentration increases.

[46] Dr. Mayers testified that when one's blood alcohol concentration reaches 185-225 mg. of alcohol per 100ml of blood, one would expect to see some lethargy, difficulties with balance, diminished responses to stimuli, loss of attention and some disorientation.

[47] Alcohol consumption can lead to memory loss. This is called anterograde amnesia. What occurs with alcohol induced anterograde amnesia is that the alcohol disrupts the ability to take short term memory and turn it into long term memory. One suffering from alcohol induced amnesia can still have a meaningful conversation but a short time later that person would not remember it. Alcohol induced amnesia can result in either a complete loss of memories from that night or the memory loss can be fragmented. Memory loss is usually linked to blood alcohol concentrations in excess of 150 mg of alcohol in 100ml of blood but it is not necessarily. Dr. Mayers testified that the experts do not know enough about alcohol induced amnesia to draw any definitive conclusions about blood alcohol concentration.

[48] Dr. Mayers testified that he is not able to draw conclusions about one's cognitive capacity solely by looking at one's gross motor skills. There is no direct correlation between the two such that a determination of cognitive capacity could be made looking solely at one's movements. An example provided from Dr. Mayers' personal experience is of a suspect at a police station falling off a chair because he/she was so intoxicated yet still retained sufficient cognitive capacity to make an informed decision about contacting counsel. While memory loss is usually associated with blood alcohol concentrations in excess of 150, Dr. Mayers could not say for certain that someone's blood alcohol concentration was over 150 just because that person blacked out. The experts do not fully understand the relationship between alcohol induced amnesia and blood alcohol concentration such as to create hard and fast rules.

Issues and the Law

[49] This case raises two very complex issues:

a) Has the Crown proven beyond a reasonable doubt that K.S. did not consent to sexual intercourse with Mr. M.T.?

b) If the Crown has not proven absence of actual consent, has the Crown proven that K.S. lacked the capacity to consent and therefore proven an absence of consent?

The Burden of Proof

[50] The starting point in understanding any decision in a criminal court is understanding the burden of proof. The Burden lies on the Crown to prove each essential element of the offence beyond a reasonable doubt. This is a high standard. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. M.T. is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. In order to convict, a trial judge must be sure that every essential element of the offence has been made out.

[51] In many cases there is direct evidence of all the essential elements of the offence such that the trial judge's focus is on the credibility or reliability of a particular witness or witnesses. In other cases there is no direct evidence of one or more of the essential elements of the offence. In such cases, the court must draw inferences from the circumstantial evidence. According to the law, the fact that an inference of guilt could be drawn from the circumstantial evidence is insufficient to support a finding of guilt. Where the case is based on circumstantial evidence, a finding of guilt may only be made where the inference that the essential element of the offence is made out is the only reasonable inference. Rouleau J.A. stated in R. v. Garciacruz, 2015 ONCA 27 at paragraph 68:

In order to infer guilt based on circumstantial evidence, the trier of fact must be "satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that they accused is guilty. This is a high standard that requires that alternative explanations be excluded because 'the mere existence of any rational, non-guilty inference is sufficient to raise a reasonable doubt' (ibid. at para. 34; see also R. v. Mars (2006), 205 C.C.C. (3d) 376 (Ont.C.A.), at para. 4).

[52] In R. v. Griffen, 2009 SCC 28, the Supreme Court of Canada, in speaking about the proper charge to a jury as it relates to circumstantial evidence, stated at paragraph 33:

The essential component of an instruction on circumstantial evidence is to instill in the jury that in order to convict, they must be satisfied beyond a reasonable doubt that the only rational inference that can be drawn from the circumstantial evidence is that the accused is guilty.

[53] In the case at bar, there is no direct evidence about whether or not K.S. consented to the sexual activity nor is there direct evidence about her capacity to consent. Instead, the court must consider all the circumstantial evidence to address the two issues raised in this case. The standard of proof as highlighted above requires this court to find Mr. M.T. not guilty if a rational inference from the circumstantial evidence supports a finding that either K.S. did consent or retained the capacity to consent despite her advanced state of intoxication. Even if an inference that she did not consent or could not consent, is the most likely inference, this is still not enough to convict. It must be the only reasonable inference.

The Offence of Sexual Assault

[54] The offence of sexual assault must be considered in the context in which the offence was created. McLachlin C.J. wrote in R. v. J.A. 2011 SCC 28: "It is a fundamental principle of Canadian law that a person is entitled to refuse sexual contact." Major J., speaking for the majority of the court in R. v. Ewanchuck stated at paragraph 28:

…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 mans' person being sacred, and no other having a right to meddle with it in any the slightest manner": See Blackstone's Commentaries on the Laws of England (4th ed. 1770). Book III, at p. 120. It follows that any intentional but unwanted touching is criminal.

[55] All offences in the Canadian Criminal Justice System have both an actus reus and a mens rea. The same is true for the offence of sexual assault. The actus reus of a sexual assault is made out where the Crown has proven beyond a reasonable doubt that: the defendant touched someone; where the contact was sexual in nature; and, the person did not consent. The Crown must prove all three of these essential elements beyond a reasonable doubt. In other words, the test is not whether the victim consented. The test is whether the Crown has proven beyond a reasonable doubt that the complainant did not consent.

[56] The mens rea for sexual assault is made out where the Crown proves beyond a reasonable doubt that the defendant intended to touch the complainant in a sexual manner and knew, or was reckless or willfully blind to the complainant's lack of consent.

[57] Applying this standard to the case at bar, the Crown must prove the following:

a) That K.S. was touched by Mr. M.T.;

b) The touching was of a sexual nature;

c) That K.S. did not consent OR did not have the capacity to consent;

d) That Mr. M.T. intended to touch K.S. in a sexual manner; and,

e) That Mr. M.T. knew that K.S. did not consent or was reckless or willfully blind to her lack of consent.

[58] In the case at bar, the following essential elements have effectively been conceded:

a) That Mr. M.T. touched K.S. in a sexual manner. It is clear from the DNA evidence that Mr. M.T. had sexual intercourse with K.S. on July 18, 2015 and that a condom was not used.

b) That Mr. M.T. intended to have sexual intercourse with K.S.

[59] The only remaining issue is whether the Crown has proven beyond a reasonable doubt that K.S. did not actually consent or that due to her intoxication she was incapable of consenting and therefore did not consent. In addressing this issue, I note that counsel for Mr. M.T. did not dispute that K.S. had no memory of what took place. Nor was there any suggestion that K.S. was not generally a credible witness. Instead, the arguments focused on the reliability of some of the evidence and what inferences were available on the evidence.

Consent

A) Legal Principles

[60] The concept of consent in a sexual assault trial cannot be divorced from the purpose of criminalizing non-consensual sexual acts. As noted above the offence of sexual assault is premised on protecting personal integrity and that having control over who touches one's body lies at the core of human dignity and autonomy. It is for this reason, that the definition of consent is not mere silent acquiescence. In R. v. J.A. 2011 SCC 28, McLachlin C.J. stated that consent in the context of a sexual assault case is "the conscious agreement of the complainant to engage in every sexual act in a particular encounter" (see para 31). McLachlin C.J. further stated at paragraph 34 "consent for the purpose of sexual assault is defined in s.273.1(1) as the voluntary agreement of the complainant to engage in the sexual activity in question".

[61] The issue of consent in the context of a sexual assault trial was also explored by the Supreme Court of Canada in R. v. Ewanchuck. In this case, Major J., speaking for the majority of the court stated that the absence of consent is "subjective and determined by reference to the complainant's subjective internal state of mind towards the touching, at the time it occurred". Major J. went on to note that on the issue of the absence of consent "the actual state of mind of the complainant is determinative" (at paragraph 27). Moreover, under Canadian Law, there is no such thing as "implied consent". Either the complainant consented or she did not.

[62] In other words, if the trial judge finds beyond a reasonable doubt that sexual touching took place and that the complainant did not consent, the actus reus has been proven. The actus reus does not take into account the defendant's state of mind. Only the victim's state of mind.

[63] Consent cannot be given ahead of time. In assessing the issue of consent, the only relevant time frame for the consent is while the touching is taking place. As noted by McLachlin C.J. in R. v. J.A., supra, at paragraph 46:

The only relevant period of time for the complainant's consent is while the touching is occurring: Ewanchuck, at para 26. The complainant's views towards the touching before or after are not directly relevant. An offence has not occurred if the complainant consents at the time but later changes her mind (absent grounds for vitiating consent). Conversely, the actus reus has been committed if the complainant was not consenting in her mind while the touching took place, even if she expressed her consent before or after the fact.

[64] In the case at bar, as K.S. has no memory of what took place in the hotel room there is no direct evidence on the issue of whether or not K.S. consented. Given that the burden lies with the Crown to prove an absence of consent, the absence of such evidence often makes it difficult for the Crown to meet their burden.

[65] The evidentiary effect of alcohol induced amnesia, or a "black out" has been considered in other cases. Justice Ducharme stated at para 18 of R. v. J.R.:

…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), 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.

[66] The absence of evidence of consent or lack thereof because of an alcoholic blackout is, however, not necessarily fatal to the prosecution. Ducharme J. stated at paragraph 20 of R. V. J.R. supra:

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. But even here, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential.

[67] I draw from this passage that a complainant's alcohol induced lack of memory of an alleged sexual assault may be circumstantial evidence relevant to the issue of actual consent and/or capacity to consent. It is open to the court to consider this evidence, along with all the other circumstantial evidence in assessing whether or not the Crown has met the burden of proof.

B) Analysis

[68] In the case at bar, the Crown argued that the evidence relevant to the issue of consent comes from a number of sources. Firstly, the complainant testified that while she has no memory of what took place in the hotel room and therefore cannot close the door on the possibility that she did consent, it was her belief that she would not have consented to having sexual relations with Mr. M.T.. Crown counsel argued that this is salient evidence of an absence of consent. Justice Trotter in R. v. Meikle [2011] O.J. No. 887 (SCJ) noted the following about this type of evidence at paragraph 45:

As I said at the outset of this analysis, the Crown must prove that N.T. withheld her consent that evening; it is not up to Mr. Meikle to prove that she did not consent. N.T.'s evidence about the fact that she would not have consented is nothing more than a statement of her assumption or belief about how she behaved at a time she does not remember.

[69] It may be that in some cases, a witness' assumption or belief about how he or she would have behaved is still some circumstantial evidence of an absence of consent. In my view, in the case at bar it is not. This is because K.S. candidly admitted to the court that she did a number of things during the early morning hours of July 18, 2015 that she would not normally have done. These include smoking, calling Mr. P.M., engaging with Mr. P.M. as though she was "into" him when she in fact was not, and dancing and talking to strangers. As I explain in more detail below, all these events took place at the E[...] bar, at a time when K.S. was intoxicated but not so intoxicated that she lost the capacity to make informed decisions. I therefore do not find that K.S.' assumption that she would not have consented to be of any evidentiary assistance on this issue.

[70] The second piece of evidence the Crown pointed to as circumstantial evidence that K.S. did not consent to the sexual acts with Mr. M.T. is the interaction between K.S. and Mr. M.T. at the bar and in the hotel lobby. In my view, while there are no overt acts of interest by K.S. in the Eveleigh and the hotel, I cannot conclude from this evidence alone that K.S. did not consent. This evidence in my view is too ambiguous to conclude that an absence of consent (putting aside the issue of capacity to consent) is the sole reasonable inference.

[71] Another piece of evidence that is relevant to this analysis is the memory K.S. has of being in the bed in the hotel with a man hovering over her with his hands beside her head. In this memory, K.S. utters the word "no" two or three times. Crown counsel argued that this is clear evidence that K.S. did not consent to any sexual touching. Defence counsel argued that it is dangerous to draw too much from this memory. Firstly she argued that that this memory is unreliable. Secondly, she argued that it is unknown when in the course of seven hours they were in that hotel room that this event happened, if it happened at all.

[72] I agree with defence counsel that given K.S. highly intoxicated state on July 18, 2015 and the disjointed nature of this memory, I cannot conclude that her memory of uttering the word "no" is accurate or that if she did say this to the defendant she did so in the context of a sexual act about to take place. I appreciate that K.S. was very careful in her evidence. It was clear that she was making an effort to not fill in the gaps of her memory. K.S. did not appear to guess or make unfounded assumptions and she readily agreed to counsel's suggestion that given her lack of memory she could have consented to the sexual acts with Mr. M.T. and just not remembered it. Despite the forthright manner in which she testified, in my view it would be dangerous to conclude that this memory proves that K.S. told Mr. M.T. "no" and he continued to have sexual intercourse with her anyway. The event captured in this memory is just too ambiguous. I therefore cannot use this evidence to support a finding that K.S. did not consent to sexual intercourse with Mr. M.T..

[73] A final piece of evidence that the Crown relied upon is K.S.' reaction when she woke up. There is no doubt that K.S. was devastated and distraught over what took place. K.S. woke up naked, in a strange hotel room. She had no idea how she came to be naked in this hotel room. She did know that someone had sex with her. She did not know whom this person could be. When her friends picked her up, she was crying and clearly felt violated. K.S.'s feelings about that morning were still present and obvious from her reaction to watching the video from the E[...] bar. I accept K.S.' evidence that looking back, she cannot imagine that she would have consented to having sexual intercourse with Mr. M.T., a virtual stranger. I further fully accept that she felt violated. I do not draw from this evidence, however, that it confirms she did not consent. The situation was distressing regardless of whether or not K.S. actually consented to sexual intercourse with Mr. M.T..

[74] In weighing all this evidence, I am unable to conclude that K.S. did anything to overtly indicate that she was not consenting to sexual intercourse with Mr. M.T.. I appreciate, however, that this is not the test. The test is whether K.S. subjectively consented. The difficulty in answering this question is that it is impossible, given the facts of this case, to address the issue of consent without considering K.S.' capacity to consent. In my view, the real issue in this case is capacity to consent. If K.S. had no capacity to consent, then she cannot be said to have consented. If I set aside the issue of capacity, however, I cannot find that the Crown has proven, beyond a reasonable doubt, the absence of consent.

Capacity to Consent

[75] As previously noted, as this is a criminal trial, the issue that the court must decide is not whether the defence has proven that K.S. had the capacity to consent, but instead whether the Crown has proven beyond a reasonable doubt that K.S. lacked the capacity to consent.

A) Relevant legal principles

[76] The issue of whether one lacks the ability to consent due to extreme intoxication is a complex one. It would be so simple if the law was that once someone is impaired by alcohol consent is vitiated. If that were the test, this would be an easy case. K.S. was clearly impaired by alcohol when she had sex with Mr. M.T.. But that is not the test. The test is also not whether it was ethical of Mr. M.T., who was clearly very sober at the time, to have sex with K.S., who was clearly very intoxicated at the time. Having sexual intercourse with someone whose inhibitions are relaxed due to the consumption of alcohol is not a crime. Some might find this conduct unethical. But our law does not criminalize unethical conduct. As was noted by the Supreme Court of Canada in R. v. Hutchinson, supra, at paragraph 18 there is a difference between unethical and criminal conduct:

As the most serious interference by the state with people's lives and liberties, the criminal law should be used with appropriate restraint, to avoid over-criminalization. It draws a line between conduct deserving the harsh sanction of the criminal law, and conduct that is undesirable or unethical but "lacks the reprehensible character of criminal acts": R. v. Cuerrier, [1998] 2 S.C.R. 371, at para. 133; A. Wertheimer, Consent to Sexual Relations (2003). The companion of restraint is certainty. The criminal law must provide fair notice of what is prohibited and clear standards for enforcement: R. v. Mabior, 2012 SCC 47, [2012] 2 S.C.R. 584, at paras. 14 and 19.

[77] So, if mere intoxication is insufficient to vitiate consent, then at what point does the line cross from the loss of inhibitions (which does not vitiate consent) to lacking the capacity to consent? To address this complex issue it is helpful to look at the actual legislation. Section 273.1(2) addresses the issue of when consent is vitiated. There is no specific reference to intoxication in this section. Instead, Parliament provided a broader rule indicating that consent is not obtained if the victim is incapable of consenting to the activity. McLachlin, C.J., in R. v. J.A., supra, at paragraph 36 interpreted this section as follows:

Section 273.1(2)(b) provides that no consent is obtained if 'the complainant is incapable of consenting to the activity'. Parliament was concerned that sexual acts might be perpetrated on persons who do not have the mental capacity to give meaningful consent. This might be because of mental impairment. It also might arise from unconsciousness; see R. v. Esau, [1997] 2.S.C.R. 777; R. v. Humphrey (2001), 143 O.A.C. 151, at para. 56 per Charron J.A. (as she then was). It follows that Parliament intended consent to mean the conscious consent of an operating mind.

McLachlin C.J. then went on to define the concept consent in the context of a sexual act. She stated at paragraph 44:

The jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act.

[78] More recently, in R. v. Hutchinson 2014 SCC 19, the Supreme Court of Canada stated at paragraph 4 that consent is "the voluntary agreement to engage in the sexual activity in question".

[79] In R. v. A.A. (2001), 155 C.C.C. (3d) 279 (Ont.C.A), Justice Rosenberg stated:

Our law states that no consent is obtained where the complainant is incapable of consenting. A valid consent is an informed consent. Therefore, the individual must be able to understand the risks and consequences associated with the activity to be engaged in.

[80] Trial courts have also grappled with defining what is encapsulated in the concept of capacity to consent to a sexual act. Ducharme J. stated at paragraph 41 of R. v. J.R., supra:

A person has the requisite capacity to consent to sexual acts if that person has the ability to understand and agree to engage in the sexual activity in question.

Ducharme J. went on to state at para 43:

the question is whether or not the complainant was able to make a voluntary and informed decision, not whether she later regretted her decision or whether she would not have made the same decision if she had been sober. Thus, an obvious example of incapacity would be the complainant who was unconscious or in a coma at the relevant time. As I have already explained, memory loss, without more, is not sufficient proof of incapacity. Similarly, while intoxication, self-induced or otherwise, might rob a complainant of capacity, this is only a possible, not a necessary result.

[81] In R. v. Cedeno, 2005 ONCJ 91, Duncan J. articulated the line between intoxication and lack of capacity. He stated at paragraph 18:

Cases where the complainant is said to be incapable due to consumption of alcohol or drugs are less clear-cut. Mere drunkenness is not the equivalent of incapacity [citations omitted]. Nor is alcohol-induced imprudent decision making, memory loss, loss of inhibitions or self control [citations omitted]. A drunken consent is still a valid consent. Where the line is crossed into incapacity may be difficult to determine at times. Expert evidence may assist and even be necessary in some cases [citations omitted], though it is not required as a matter of law [citations omitted].

[82] In R. v. Innes [2004] O.J. No. 4150 (SCJ), Justice Lack provided her own definition of capacity to consent. She stated at paragraph 24:

There is no requirement that a complainant be a virtual robot before she will be found to be incapable of consenting to sexual activity. Consent requires a reasonably informed choice, freely exercised, without interference with the freedom of a person's will. Free will can be constrained in many ways, one of which may be by the influence of alcohol.

[83] Courts in other jurisdictions have also grappled with this issue. In R. v. Patriquin (2004), 2004 NSCA 27, 221 N.S.R. (2d) 370 (NSCA), the Nova Scotia Court of Appeal held:

..in order to be found to have lacked the capability of consenting, the complainant must have been intoxicated to the point where she could not understand the sexual nature of the act or realize that she could choose decline to participate.

[84] The British Columbia Court of Appeal in the case of R. v. Siddique, [2004] BCJ No. 2690 (B.C.C.A) held at para 55:

Therefore, the test is not one of automatism or even one of being unconscious or insensate, although all of those states would result in incapacity. In order to be incapacitated, due to whatever reason, the complainant must be unable to understand the risks and consequences associated with the activity that she or he is engaged in. The complainant must understand the sexual nature of the act and realize that he or she could choose to decline to participate.

[85] The extreme level of intoxication that is required to prove incapacity to consent was recently illustrated by Fairburn J. of the Superior Court of Justice in R. v. Hinds [2016] O.J. No. 257 (SCJ). In this case, a witness entered a room to find the complainant half naked with three men. The witness kicked the men out and tended to the complainant. The complainant was so impaired that she was unable to dress herself. According to the witness shortly after the sexual event the complainant looked blank at times and was zigzagging. Nonetheless, Fairburn J. concluded that she had a reasonable doubt about the complainant's capacity to consent. To that end, Fairburn J. stated at paragraphs 114-116:

114 I also have concerns about whether the Crown has proven JP did not have the capacity to consent. These concerns arise from the facts surrounding the specific events described by CW and TW. I first observe that not much time passed between JP's friends' observations of her condition while she was on the couch and when she was found and came back downstairs.

115 While I accept that CW and TW made best efforts to describe JP's state when she was located by CW and came back downstairs, describing her as looking like a zombie, "blank", and zigzagging, I note that she was able to comprehend what CW was saying. For instance, when CW told her that what she believed the men would do to her if she stayed, JP was able to process that comment. This is evidenced by the comment she then made to Shae at the time, suggesting to Shae that he would not do that. In addition, she went back upstairs. While TW said that she was taken there, I note that she was walking. TW saw her feet ascending the staircase, beside those of a few males.

116 I also take into account the fact that CW and TW did not call the police at that point in time. Instead, they went home to bed. While they testifeid that they thought something sinister had or was going to happen to JP, they did not take any steps to get her to safety. As the daughter of a police officer, if she had really thought that JP was in as much difficulty as she testifeid to, she would have called the police. She did not do so until the afternoon the next day.

[86] In my view, this judgment establishes just how intoxicated one must be to lose capacity to consent. The trial judge found that the complainant looked blank at times, could not walk properly at times and could not dress herself, but nonetheless retained the capacity to consent because of the evidence that a short time earlier she had been in control of her actions, had not consumed any additional alcohol in the meantime and, she was able to comprehend one of her friend's comments, react to it and make a decision to ignore it.

[87] In R. v. Jensen, another case where a court held that the Crown had not proven incapacity beyond a reasonable doubt, the Court of Appeal specifically noted that even where a reasonable inference of incapacity is available on the evidence, if it is not the only inference, a conviction cannot stand. The Court of Appeal stated at paragraph 16:

The complainant's evidence that she thought she may have imagined the assault until the appellant confirmed it several days later is somewhat more troubling. Arguably, it testifies to such an advanced state of intoxication that the complainant may have lacked the full awareness of what was happening.

I draw from this passage that merely because it is possible or probable that one lacked the full awareness of what was happening, this is not sufficient for a finding of guilt. In overturning the conviction and ordering a new trial, Rosenberg J. specifically referenced occasions during the relevant time when the complainant was clearly making informed decisions. Moreover, he noted that the complainant did not have difficulty walking and there was no evidence that the complainant's mother noticed anything usual about the complainant's condition.

[88] Finally, in R. v. Meikle, supra, Trotter J., despite accepting as a fact that the complainant was highly intoxicated at the time of the sexual interaction, nonetheless found that the complainant's level of intoxication did not reach the level of incapacity. To that end he noted the following facts:

a) the complainant blacked out;

b) witnesses testified she was intoxicated but they were not overly concerned about her condition;

c) the complainant lost her phone but was able to return to the bar and look for it; and,

d) the complainant was cognizant enough to provide her name and number to the concierge.

[89] Trotter J. held that since the complainant was aware that she lost her phone and was able to leave her name and number with the concierge, she may also have had the capacity to consent to a sexual act.

[90] The common theme in all the cases referred to above, is that despite the evidence of extreme intoxication which in the ordinary course may raise real concerns about capacity to consent, the trial judge was also able to identify specific acts or utterances by the complainant that supported a finding that she was able to make decisions.

[91] 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. In R. v. Cedeno, supra, the victim drank a substantial amount of vodka and smoked marijuana and hash. 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. In the case at bar, there is no evidence that K.S. passed out at any point in time. Moreover, she was not so impaired that she vomited and there was no evidence that she consumed anything but alcohol.

[92] In R. v. J.W.M., [2004] O.J. No. 1295 (SCJ), the victim was so intoxicated that she was falling all over the dance floor. She vomited at the bar and had to be carried out to a vehicle. The trial judge noted that she was in a semi-conscious state at this point. Once in the defendant's vehicle, the victim vomited again before being taken into the defendant's residence where the sexual intercourse took place. In finding the defendant guilty, Justice Hill noted at paragraph 56:

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), 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.

[93] 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.

B) Analysis

[94] In the case at bar there is insufficient evidence to conclude beyond a reasonable doubt that K.S. was unconscious or asleep during the sexual act. Therefore, the question this court must ask, is whether, at the time of the sexual touching, K.S. retained the minimal cognitive capacity to understand the sexual nature of the act and that she could refuse to engage in that sexual act.

[95] Crown counsel argued that the following evidence supports a finding of incapacity to consent beyond a reasonable doubt:

a) The videos show that K.S. is having difficulty walking and maintaining balance;

b) The videos show that K.S. looks dazed and is not fully responsive to stimuli;

c) The video in the elevator establishes that K.S. was lethargic and on the verge of falling asleep or passing out;

d) K.S. suffered from alcohol induced amnesia; and,

e) K.S.' conduct from 2:35 a.m. onwards is disoriented and odd.

[96] Counsel for Mr. M.T. argued that much of this evidence does not support a finding of incapacity. She noted the following:

a) While there is evidence that K.S. was having difficulty walking, her capacity to walk actually fluctuated over the course of the night;

b) Dr. Mayers testified that there is no direct correlation between signs of impairment like loss of balance and difficulty walking and cognition;

c) There is positive evidence that K.S. had an operating mind from K.S.' call to Mr. K.;

d) There is positive evidence that K.S. did not pass out or fall asleep immediately upon entering the hotel room from her calls to T.S. and to Mr. K.;

e) There is evidence that K.S. retained sufficient fine motor skills to apply lipstick while in the hotel room;

f) The video from the E[...] establishes that K.S. was fully capable of making decisions; and,

g) It is unknown when during the seven hour time frame that K.S. and Mr. M.T. were in the hotel room that they actually had sex. If it was later in time, the alcohol would have been eliminated and K.S. would not have been as intoxicated.

(a) Dr. Mayers' Evidence - the Effects of Alcohol

[97] Crown counsel called Dr. Mayers, a toxicologist, to give expert evidence about K.S.' level of impairment. Crown counsel argued that Dr. Mayers' evidence supported a finding of incapacity while defence counsel argued that Dr. Mayers' evidence raised a reasonable doubt about K.S' capacity to consent.

[98] I note while that while Dr. Mayers' evidence was very helpful, he was unable to ultimately address the issue of K.S.' cognitive capacity. Instead he was able to provide some general information about the effects of alcohol and about K.S' blood alcohol concentration.

[99] It is unclear from the evidence exactly how much K.S. had to drink on July 17 and 18. K.S. was unclear about how much she drank at the Lost and Found, and had no memory of what she drank at the E[...]. While K.S.' actions at the E[...] were all caught on video, most of her alcohol consumption at the E[...] was straight from the vodka bottle, making it impossible to determine how much she actually consumed. Moreover, Mr. K. recalled K.S. drinking a glass of champagne that K.S. did not recall to consuming. It is difficult to determine if Mr. K.'s memory about this glass of champagne is accurate. This lack of clarity in what K.S. consumed on the night in question raises real difficulties in determining her blood alcohol concentration at the salient times. Further difficulties arise in determining K.S.' blood alcohol concentration when one considers Dr. Mayers' evidence that he did not know the rate in which K.S.' body eliminates alcohol. He therefore could only provide a range of potential concentrations.

[100] At the lowest level of alcohol concentration, assuming that K.S. did not have a glass of champagne at the Lost and Found, assuming that she had only two shots of vodka at the E[...] and assuming the fastest rate of elimination, K.S.' blood alcohol concentration could have been as low as 130mg of alcohol in 100ml of blood when she arrived at the T[…] Hotel.

[101] Assuming the case at its highest for the Crown, the highest potential blood alcohol concentration for K.S. when she arrived at the hotel is 225 mg of alcohol in 100ml of blood.

[102] In light of this evidence, K.S' blood alcohol concentration could have been anywhere between 130mg of alcohol in 100ml of blood to 225 mg of alcohol in 100ml of blood. This is a phenomenally broad range and therefore does little to assist the court in determining whether K.S. had the cognitive capacity to consent at the relevant time.

[103] Dr. Mayer further testified about the potential effects of alcohol on a moderate drinker given specific ranges of blood alcohol concentrations. According to Dr. Mayers there is great variability in the visible effects of alcohol. Having said that a moderate drinker having a blood alcohol concentration in the range of 155 -200mg of alcohol within in 100ml of blood would likely show signs of slurred speech, fine motor control problem, balance or gross motor skill problems, difficulty turning or walking. Dr. Mayers explained that as one's blood alcohol concentration increases one becomes less aware of their surroundings. Dr. Mayers also testified that sedation or some loss of consciousness was also possible.

[104] Dr. Mayers testified that at higher blood alcohol concentrations, in excess of 185 mg of alcohol in 100ml of blood, one might see lethargy, greater difficulty with gross motor control and balance, diminished response to stimuli, disorientation and difficulty with muscular control. Unconsciousness is possible at this level, but more commonly occurs with blood alcohol concentrations in the mid 300 range.

[105] While interesting, this evidence had limited utility in the case at bar given how little is known about K.S.' actual blood alcohol concentration.

[106] Dr. Mayers was also asked directly about the correlation between blood alcohol concentration, gross motor skill impairment as seen in the videos and cognition. The essence of this area of inquiry was to address what inference, if any, the court could draw about K.S.' capacity to consent from other more obvious indicia of impairment like loss of balance and lethargy. Dr. Mayers testified that one cannot draw definitive conclusions about cognitive capacity from other more overt signs of impairment. Dr. Mayers testified that in his experience as a toxicologist he has seen cases where a defendant, charged with impaired driving, is very intoxicated, to the point that he or she is falling off a chair, but is still able to understand information and make informed decisions about whether or not to contact counsel. When pressed further on this point, Dr. Mayers testified that normally the breath technician, who has more direct contact with a suspect, will be in a better position that he to assess the impact of alcohol on a suspect's cognitive capacity. In my view, this evidence is completely consistent with many of the cases referred to above. In many cases the trial judges have accepted that the complainant was sufficiently intoxicated that she could not walk properly and was falling down, yet they still had a reasonable doubt about the complainant's capacity to consent.

[107] The only conclusion I can draw from Dr. Mayers' evidence is that there is no direct link between loss of gross and fine motor skills from drinking and loss of cognition. Therefore, the evidence of K.S.' stumbling and loss of balance as she left the E[...] and as she arrived at the T[…] Hotel does not necessarily support the inference that K.S. did not have the capacity to consent. This evidence alone would not support a finding that the Crown has proven incapacity to consent beyond a reasonable doubt.

(b) Memory Loss

[108] Dr. Mayers testified that alcohol induced memory loss is not evidence that a person lacked the cognitive capacity to make informed and voluntary decisions. Alcohol induced amnesia, while normally linked to blood alcohol concentrations in excess of 150mg of alcohol in 100ml of blood, can occur at lower blood alcohol concentrations. Moreover, merely blacking out from the consumption of alcohol does not mean that the person lost his or her cognitive capacity. Individuals who black out are still capable of making informed decisions during this black out period. They just cannot store the memories.

(c) The Videos from the E[...]

[109] Crown counsel and defence counsel both took different positions about the video from the E[...]. Crown counsel argued that the video shows that K.S. is very drunk and support a finding of incapacity. Defence counsel argued that at the E[...] K.S. may be intoxicated but she is still very aware of her surroundings and capable of making decisions.

[110] In relation to the events at the E[...], I agree with defence counsel. K.S. looks intoxicated and on occasion lost her balance, but all her actions suggest that she had the capacity to make decisions. At times when K.S. was offered alcohol she refused it while at other times she accepted. This suggests K.S. was aware of what was taking place and made the decision to drink or not to drink. At one point she actively chose to smoke a cigarette. At another point, K.S. sent a text message to a friend, no easy feat given how small the letters are on a smart phone. There are also two occasions where K.S. clearly expressed a desire for some distance from Mr. M.T.. These actions support the reasonable inference that while at the E[...], K.S. retained the capacity to make decisions and therefore had the capacity to consent to sexual activity.

[111] While I agree with defence counsel about K.S.'s level of intoxication in the E[...], I do not find the video at the Eveleigh all that useful in determining whether K.S. had the capacity to consent ten to twenty minutes later when she was in the hotel room at the T[…] Hotel. I appreciate this is a short period of time, but I also note that K.S. continued to consume alcohol while at the E[...]. According to Dr. Mayers, K.S.' blood alcohol concentration would have been higher 2:35 a.m. then it was at 2:20 a.m.. Moreover, the indicia of impairment become more visible and obvious as K.S. left the Eveleigh than it had been when she arrived. In the E[...] K.S. could stand and was responsive to those around her. She was talking and dancing. K.S. seemed aware of her immediate environment. While K.S. lost her balance occasionally while dancing at the E[...], her balance really started to deteriorate as she left the E[...] and it was even worse by the time she arrived at the T[…] Hotel. Moreover, once at the hotel, the videos establish, in my view, that K.S. has a dazed look on her face, was not responding to those around her, was no longer talking and dancing and was becoming quite lethargic. When one considers all this evidence, the only reasonable inference is that K.S. was more intoxicated at the hotel than she had been at the E[...]. In light of this, in my view, the sole value of the video evidence from the E[...] is that it is helpful in showing the progression of the impact of the alcohol on K.S. over a 20 minute period.

(d) The Videos from the T[…] Hotel

[112] The videos from the T[…] hotel clearly establish that K.S. was having a hard time walking. Mr. M.T. actively held her up as they entered the hotel lobby. Even with Mr. M.T. holding on to her, K.S. still swayed and stumbled. When K.S. was alone at the far end of the registration desk, she could barely remain standing. She had to lean on the desk for support. Moreover, in the elevator, K.S. never stood unsupported. During the ride she leaned against the wall for support and when it was time to exit, she held onto Mr. M.T. for support. In light of this evidence, I have no difficulty finding that once at the T[…] Hotel that K.S.' gross motor skills and balance were substantially impacted by her consumption of alcohol.

[113] Two of the videos from the hotel are clear enough that they also showed K.S.' face and expressions. In both these videos, the one from the side of the desk and the one in the elevator, K.S. looks dazed and confused. In the video where K.S. is standing alone by the end of the registration desk, it is harder to see K.S.' face, but on the few occasions when she looked up, she had what I would describe as a dazed look on her face. In the elevator, K.S.' eyes are closed the majority of the time, but on the few occasions when she opened her eyes, K.S. did not appear to be able to focus and had a blank look on her face.

[114] I further note that by the time K.S. is in the elevator she is barely responding to her environment. She appears to be falling asleep or on the verge of passing out. At one point Mr. M.T. tried to talk and/or sing to her and K.S. did not respond at all. While K.S. did link her arm with his near the end of the elevator ride, her facial expression was dazed as this took place. Finally when the elevator stopped, while K.S. seemed to notice this, she looked startled by it at first and was very slow to react to what is taking place, as though she was not sure of what was going on around her.

[115] In my view the videos from the hotel establish not just that K.S. was having difficulty walking and losing her balance. The videos also show that K.S. looks dazed, disoriented and lethargic. This, in my view, is some circumstantial evidence that K.S. lacked the capacity to consent.

(e) The two calls to Mr. K.

[116] At 2:39 a.m., Mr. K. called K.S. and spoke to her for 27 seconds. At 2:46 a.m. K.S. called Mr. K. but he did not answer his phone and K.S. did not leave a message. Defence counsel argued that these two telephone calls support the inference that K.S. retained the cognitive capacity to make decisions such that she had the capacity to consent to sexual activity. Defence counsel argued that these telephone conversations provide positive evidence that K.S. knew where she was and what she was doing. To that end, she points to the fact that K.S. was clearly making a plan to meet Mr. K.. Moreover, Mr. K. testified that K.S. did not sound confused or disoriented during this conversation, her speech was not slurred and he fully expected K.S. to meet him at the diner. While K.S. never in fact showed up at the diner, she did make a call to Mr. K. at 2:46 a.m. Counsel argued that it is reasonable to infer that K.S. called Mr. K. at 2:46 am. to advise him that she changed her mind and would not be meeting him.

[117] Crown counsel, on the other hand, argued, that this conversation provides clear evidence of K.S.' confusion and confirms that K.S. was disoriented and lacked the capacity to consent. While Mr. K. may not have heard signs of impairment in this very short call, he also did not know that K.S. was in the T[…] Hotel when she was speaking to him. Counsel argued that if K.S. appreciated where she was when she answered Mr. K.'s call, one would have expected her to say, "I am right here" as opposed to saying "I am on my way" and "wait for me". Mr. K. was in the diner attached or connected to the hotel where K.S. was standing as she spoke to him. She was not on her way, she was right there. Crown counsel argued that the fact that K.S. stated she was on her way as opposed to letting Mr. K. know she was in the hotel that was connected to the diner supports the inference that K.S. was disoriented and was not aware of where she was. The Crown further argued that the fact that K.S. made plans to meet Mr. K. moments after checking into a hotel room with Mr. M.T. is further evidence that K.S. did not appreciate what she doing.

[118] I agree with the Crown's interpretation of this evidence. The fact that Mr. K. did not hear slurred speech and did not think that K.S. was too intoxicated to appreciate her surroundings, does not alter my view of this evidence. It was a 27 second call where K.S. spoke only a few words. Moreover, Mr. K. clearly could not hear very well as he thought she was outside as opposed to being in the diner. The call from K.S. to Mr. K. at 2:46 a.m. also does not alter my interpretation of the evidence. In my view, it is not reasonable to infer that K.S. was calling Mr. K. at 2:46 a.m. to let him know she had changed her mind about meeting him. Firstly, I note that if this was really K.S.' intention, why not leave a message? Secondly, K.S. made a number of relatively random calls between 2:39am and 2:46 am. with her last call being to Mr. K.. If K.S. really had changed her mind about not meeting Mr. K. in the two minutes after the call (the time frame of when she went into the elevator), then wouldn't she have called Mr. K. to advise him of her change of plans prior to making these other calls? In my view, it is pure speculation to conclude that K.S. called Mr. K. at 2:46 a.m. to advise him that her plans had changed.

[119] While it may be that the 27 second call between Mr. K. and K.S. when considered in a vacuum supports an inference that K.S. retained some small level of cognitive capacity and that she was intentionally making plans with Mr. K., when this call, however, is considered with all the other evidence, in my view, the only reasonable inference is that K.S. was so intoxicated that she did not appreciate where she was, did not appreciate what she was doing and did not realize that she could refuse to go with Mr. M.T. and say no to sexual intercourse. To that end I note the following: K.S. looks dazed in the videos at the T[…] Hotel; K.S. does not engage with anyone or anything other than her phone while at the T[…] Hotel; her engagement with her phone appears to be random and illogical; K.S. does not even respond to Mr. M.T. when he is singing and dancing in the elevator and looking right at her, K.S. is falling asleep in the elevator; and, K.S. tells Mr. K. she is on the way when in fact she is already in the T[…] Hotel (Mr. K. was in the diner at the T[…] Hotel). Moreover, the entire sequence of events at the hotel further confirms that K.S. did not appreciate what was going on around her or what she was really doing. K.S. arrived at the hotel and was beside Mr. M.T. as he was registering for a room for himself and K.S., yet a minute later, she is making plans to meet Mr. K.. A minute after that she is calling Mr. P.M. but then stops the call when Mr. M.T. comes up to her in the lobby when there was no reason to end the phone call. In my view, the only reasonable inference from all the evidence is that K.S.' was disoriented, confused, not aware of what was really going on around her and not capable of making voluntary informed decisions.

(f) The other calls

[120] K.S. attempted to make a number of phone calls between 2:39 a.m. and 2:46 a.m. The majority of these calls were cancelled prior to any connection being made. This is positive evidence that she retained the ability to dial a phone number, or at least randomly select numbers from her contacts. In my view, this fact is not evidence that K.S. retained the minimal cognitive capacity required to consent. As noted by Justice Hill in R. v. J.W.M., supra, equating the ability to engage in relatively primitive actions does not equate with capacity to consent to sex. Moreover, in my view, the random nature of these calls coupled with the reality that it seems illogical that K.S. would be making calls after having just rented a room with Mr. M.T. actually supports the inference that K.S. was disoriented, confused and not aware of what she was doing and where she was.

(g) No evidence of what took place in the hotel room

[121] In the case at bar, K.S. and Mr. M.T. were in the hotel room from 2:43 a.m. until 9:00 a.m. There is no evidence about what actually took place in this hotel room, other than at some point K.S. had a drink from a bottle of water (her lipstick was on this bottle), Mr. M.T. answered a few phone calls, and that at some point K.S. and Mr. M.T. had sexual intercourse. Defence counsel argued that given this absence of evidence, it is unknown when, during the seven hours that K.S. and Mr. M.T. were in the hotel room that the sexual intercourse took place. She therefore argued that the sexual intercourse may have taken place later in the morning when the effects of alcohol had subsided. Despite counsel's very able submissions, I reject this argument. K.S. and Mr. M.T. were together for less than 15 minutes at the E[...]. They did not spend a lot of time talking while at the E[...]. Moreover, K.S. and Mr. M.T. did not say a word to each other as they entered the hotel and registered at the hotel. They also did not talk at all in the elevator, in fact, K.S. is practically falling asleep and not really conversing with anyone around her. In light of all this evidence, it defies common sense and it is unreasonable to conclude that K.S. and Mr. M.T. sat around and talked or watched television for a number of hours before having sex. I also find it equally unreasonable that K.S. fell asleep for a couple of hours and awoke sometime before 9:00 a.m. and then had sexual intercourse with Mr. M.T.. In light of this, I am satisfied beyond a reasonable doubt that the sexual intercourse took place within a relatively short time after K.S. and Mr. M.T. arrived at the hotel room while K.S. was still suffering from the full effects of her alcohol consumption. Her capacity to consent in the hotel room when the sexual intercourse took place was the same as her capacity to consent when she was in the lobby of the hotel and in the elevator of the hotel.

(h) Lipstick on the water bottle

[122] The water bottle in the bedroom had lipstick on it. I agree with counsel that this supports a finding that at some point K.S. drank from this water bottle. Defence counsel further argued that this evidence supports two additional inferences, (i) that K.S. re-applied lipstick which negates incapacity to consent; and ii) that K.S. did in fact stay up for a period of time before having sex with Mr. M.T.. I disagree that these inferences can be drawn from this evidence. It is mere speculation that in order for lipstick to have transferred from K.S. to the bottle she had to reapply it. In my view, this just does not follow. I also disagree that drinking some water necessarily means that K.S. stayed awake for some period of time. She could have had a sip of the water the second she walked into the hotel room.

Conclusion on capacity

[123] When I consider all the evidence including the amount of alcohol she consumed, the indicia of impairment as seen in the videos, K.S.' dazed and confused expression in the hotel lobby and elevator, K.S.' illogical conversation with Mr. K., K.S' illogical attempt to call Mr. P.M., K.S.' random telephone calls between 2:40 a.m. and 2:46 a.m., and the fact that she was falling asleep in the elevator, I am satisfied beyond a reasonable doubt that at the time K.S. was in the hotel, she lacked the cognitive capacity to consent. I am satisfied beyond a reasonable doubt that K.S. did not appreciate where she was or what she was doing. In other words, I find that K.S. was completely out of it. Given my finding that the sexual intercourse must have taken place shortly after their arrival in the hotel room, I am also satisfied beyond a reasonable doubt that when the sexual acts were actually taking place, K.S. was sufficiently intoxicated that she did not appreciate the nature of the sexual acts with Mr. M.T. nor did she retain the cognitive capacity to realize that she could refuse sexual intercourse. I am therefore satisfied beyond a reasonable doubt that at the time of sexual acts K.S. did not have the capacity to consent and therefore did not consent to the sexual activity.

[124] I therefore find that the Crown has proven beyond a reasonable doubt the actus reus of the offence.

The Mens Rea

[125] In the case at bar, I have found that K.S. did not consent to sexual intercourse with Mr. M.T. because she lacked the capacity to consent. While not argued by counsel, I will nonetheless briefly address whether or not the Crown has proven that Mr. M.T. knew that K.S. did not consent or was willfully blind or reckless to this lack of consent. In the case at bar, there is no evidence that K.S. actually uttered the words no to Mr. M.T.. Nonetheless I have no difficulty in finding that Mr. M.T. had the requisite mens rea for the offence. Mr. M.T. clearly intended to have sexual intercourse with K.S. Moreover, I am satisfied beyond a reasonable doubt that Mr. M.T. clearly knew that K.S. was intoxicated and that she was so intoxicated that she lacked the capacity to consent and that she did not appreciate what was going on around her, including the sexual acts with Mr. M.T.. To that end, I note that Mr. M.T. had to hold her up to walk. He saw her falling asleep in the elevator and when he tried to dance and sing with her in the elevator, she remained unresponsive and he had to hold her up as they walked out of the elevator. In these circumstances where K.S.' impairment was so obvious, where K.S. looked disorientated and unaware of her surroundings, either Mr. M.T. knew that K.S. was not capable of consenting or he was willfully blind or reckless to this fact. Moreover, as Mr. M.T. did not testify, there is no basis to find that he had a mistaken belief that she was consenting.

[126] In light of these findings of fact, I find Mr. M.T. guilty of sexual assault.

Released October 7, 2016

Justice Mara Greene