COURT FILE NO.: CR-18-100006270000 DATE: 20200117 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – DALMAR GODAD Defendant

John Flaherty and Melissa Atkin, for the Crown Jordan Gold, for the Defendant

HEARD: January 6-10, 13-14, and 17, 2020

M.A. Code J.

Reasons for Judgement

A. OVERVIEW

1This sexual assault trial by judge alone began before me on January 6, 2020 with two pre-trial Motions. The Crown brought a s. 276 Motion which was quickly allowed, on the consent of the defence and counsel for the complainant. It related to video surveillance images of the accused Godad and the complainant T.C. interacting in the elevator on the way up to the accused’s apartment on the night in question. The second pre-trial Motion was brought by the defence, seeking Directions concerning a potential s. 276(4) and s. 278.92(2)(a) Motion. It related to certain text messages exchanged between the accused Godad and the complainant T.C. shortly after the alleged offence. On the second day of trial, January 7, 2020, I ruled that the text messages were admissible in short oral Reasons. The evidence ruled admissible on these two Motions is discussed below.

2The trial then commenced on January 8, 2020 upon an Indictment alleging a single count of sexual assault which was said to have occurred on December 21, 2017 in Toronto. The Crown called two witnesses, the complainant T.C. and her male companion on the night in question. In addition, the parties made a number of sensible admissions and various exhibits were filed on consent. The Crown closed its case after two and a half days of evidence. The defence then called one witness, the accused Godad. The defence closed its case on January 13, 2020, I heard closing argument on January 14, 2020 and reserved judgement for two days. These are my Reasons for Judgement which I read orally in court on January 17, 2020.

B. FACTS

(i) The Crown Evidence

3The complainant T.C. is 37 years old. I understand that she was born in Costa Rica, although the Crown and defence elicited very little information about her background. She has lived in Toronto for 24 years. She has a 12 year old son. She lives with her son and her mother. She works as a waitress at banquets held at hotels. A close male friend of hers, G.R., is also a tenant in the same house where T.C. lives with her mother and son. G.R. is 45 years old and also appears to be a Spanish-speaking immigrant, although the parties again elicited very little information about his background. He works with T.C. in the hospitality business.

4On the night in question, December 21, 2017, T.C. and G.R. made plans to go out dancing at a club in downtown Toronto where Latin music is played. They were celebrating and planning to have fun because they usually work every day, on various shifts, and they had the next day off. It was a Wednesday night. They ate dinner and had a drink or two before going out. T.C. recalled having one vodka and orange. G.R. thought it was one or two drinks and it could have been wine, rum or vodka. They lived in the north end of Toronto. The club, known as “Fiction”, is located near King Street and University Avenue so they took public transit in order to travel downtown. T.C.’s mother remained at home with her son. It took T.C. and G.R. about one hour to travel to the club on public transit.

5T.C. and G.R. arrived at the club between 11:00 p.m. and midnight. She was wearing boots, blue jeans, and a sleeveless blouse with spaghetti straps. She was carrying a small purse (with her cellphone inside) and was wearing a winter jacket, as it was cold outside. They left their coats or jackets at the coat check, upon entering the club. G.R. kept the two coat check tickets. The coat check was downstairs in the basement, according to G.R.

6The club was dark and crowded. T.C. and G.R. immediately began dancing together. It appears that the main floor of the club is quite large, although there was no precise evidence on this point. They danced for a period of time and then paused to have a drink. T.C. recalled having a single shot of tequila with G.R. He recalled having two drinks, a shot of tequila and then a vodka drink, with more dancing in between the two drinks. There is a dance floor area in the club and a bar area. They were dancing on the dance floor and they would go to the bar to get drinks, although the customers at the club tended to dance everywhere.

7After this initial period where T.C. and G.R. danced, drank, and talked together, they met the accused Godad. They had never met Godad before. It was now after 12:00 midnight but before 1:00 a.m. G.R. estimated that they had been at the club for about an hour. G.R. and T.C. were back on the dance floor at this point, dancing together, when Godad approached and began chatting while they danced. Both G.R. and T.C. met Godad at this point but the music was loud and Godad was talking more to T.C., and so G.R. did not hear the conversation. He described Godad as smiling, happy, and amiable. T.C. recalled Godad introducing himself as “Daniel”, saying that he was “French” and that he worked in a bank, and asking about a ring that T.C. was wearing. She replied that she was divorced and that it was not a wedding ring. G.R. estimated that this period where the three of them were dancing and chatting on the dance floor may have lasted for 10 or 15 minutes.

8At this point in the narrative, the two accounts of T.C. and G.R. diverge. According to G.R., T.C. and Godad left the dance floor. They were not in the bar area and G.R. did not see where they went. According to T.C., she left the dance floor and went to the bar with Godad. He told her that his credit card was in the V.I.P. section of the bar and he offered to buy her a drink. They each drank a shot of tequila at the bar. The bartender poured the shots. Then they moved to a long high table in front of the bar and shared a vodka cooler. It was “Smironoff Ice” and it came in one bottle which was poured out into two glasses. According to T.C., her friend G.R. was nearby on the dance floor, about 20 feet away, while she and Godad had these drinks at the bar and then at the high table, which is located between the bar and the dance floor. G.R. had met a female friend he knew named Chloé and T.C. could see G.R. nearby with Chloé. T.C. and Godad had a conversation while they consumed the two drinks. They were speaking in English. T.C. did not recall what they talked about, except that she mentioned her son. There was no discussion about leaving the club with Godad. He did not ask her to leave with him and she was not interested in him. Her plan was to eventually return home with G.R., after their night out, either by public transit or Uber.

9At some point after having the two drinks and talking with Godad, T.C. recalled going to the bathroom. She could not estimate how much time had passed. She returned from the bathroom and went back to the high table in front of the bar where she and Godad had been drinking and talking. Godad was still at the high table. According to T.C.’s account, G.R. was now quite close, about 10 feet away from the table, still dancing with Chloé. T.C. described her own sobriety at this point as “good”. She felt as if she had not been drinking at all and was certainly not drunk. She had consumed no more than four drinks all evening, including the one drink at home before traveling downtown. This was a normal amount of alcohol for her and it would typically not affect her at all. She does not drink often, it depends on the occasion, and she felt fine. However, from this point on until she awoke at 7:00 a.m. the next morning, she has no memory. All she can remember is returning to the high table where Godad was waiting and where G.R. and Chloé were dancing nearby.

10Returning to G.R.’s account of this period, he testified that after T.C. and Godad left him on the dance floor some time passed during which he did not see them. It was less than a half hour that they were out of his sight. He next saw them when they returned to the dance floor on two separate occasions. T.C. and Godad were together on both occasions. On the first occasion, T.C. came over to G.R. and told him that Godad wanted to “treat” them and buy them a drink. By this point, G.R. had met up with his friend Chloé and was dancing with her. They both accepted the invitation and the four of them – Godad, T.C., G.R., and Chloé – all walked over to the bar and had a drink. It was crowded at the bar and they had to wait for their drinks but they eventually got four shots of tequila and drank them. According to G.R., Godad was kind and smiling and was talking with T.C. Her demeanour was “normal” and happy, according to G.R. After the drink of tequila, G.R. and Chloé returned to the dance floor.

11On the second occasion, according to G.R.’s account, T.C. and Godad again approached him and Chloé on the dance floor and invited them to come for a second drink. This time it was Godad who wanted them to come for a drink. G.R. was reluctant to accept this second invitation but T.C. said that Godad insisted and she persuaded G.R. to join them for a second drink. All four of them went to the bar. Once again, Godad’s demeanour was kind and smiling and T.C.’s mood was happy and normal. This second drink was a prepared cocktail of some kind, either a margarita or a vodka cooler that was poured into glasses. Chloé did not have this second drink but the other three – G.R., T.C., and Godad – all drank it. Once again, T.C. and Godad were talking to eachother while G.R. talked to Chloé. After this second drink, G.R. returned to the dance floor with Chloé. T.C. testified that she had no recollection of ever having these two drinks with Godad, G.R., and Chloé. Any such drinks together would have to have been at some point after her last recollection of events at the club (that is, after she returned from the bathroom). She could not recall ever having such drinks with both G.R. and Godad at the same time.

12Returning to G.R.’s account, he testified that he did not see T.C. again for the rest of the night. He testified that the two drinks he had with Godad and T.C. had no effect on him. He was not drunk. Defence counsel questioned G.R. about T.C.’s state of sobriety at the point when he last saw her, after the second drink with Godad at the bar. G.R. initially testified that he could not recall. After further questioning, including reference to his preliminary inquiry testimony, G.R. agreed that T.C. was “coherent”, “normal”, “fine”, and not “confused”. He did not see her in an abnormal or incoherent state at any point while they were together at the club. She seemed happy on all three occasions that he saw her with Godad. G.R. testified that it was probably about 1:20 a.m. when he last saw T.C., after their second drink with Godad. He gave this estimate in re-examination, after refreshing his memory from his video-taped police statement, made the next day on December 22, 2017, and by reference to the time of a “WhatsApp” message from T.C. in his phone (to be discussed below).

13After the second drink with T.C. and Godad, and after returning to the dance floor with Chloé, G.R. testified that he next heard from T.C. at 1:32 a.m. She sent him a “WhatsApp” message with a 1:32 a.m. time stamp on it. He did not see the message immediately but when he took out his phone to take a “selfie” of himself and Chloé he noticed the message. He estimated that it was about 1:45 a.m. when he first saw the message. It was badly written, in terms of its spelling and grammar, which was unusual for T.C. G.R. understood from the message that T.C. was looking for him. She was asking, “where are you?”. He replied, “the same place”, referring to the same dance floor area where they had always been. He did not hear back from her. There was no documentary record produced at trial of these “WhatsApp” messages between approximately 1:32 a.m. and 1:45 a.m. T.C. testified that she had no recollection of sending the 1:32 a.m. “WhatsApp” message, although she later saw it on her phone after she returned home. She agreed that this text message was likely sent some time after her last memory at the club because G.R. had always been nearby and she always knew where he was when they were at the club (whereas these messages implied that they were looking for eachother).

14Shortly after the above 1:32 a.m. “WhatsApp” message, Godad sent a text message to T.C.’s phone at 1:45 a.m. There is a documentary record of this message and it was tendered at trial (Exhibit 4). The message stated, “Hola Costa Rica. This is Daniel from VIP”. T.C. also had no recollection of this text message and testified that she first saw it during the Uber ride home from Godad’s apartment, sometime after 7:11 a.m. (to be discussed below). She had no recollection of being separated from Godad for a period of time at the club or of him texting her at 1:45 a.m. or of them meeting up shortly after this text for “last call”. She did recall Godad asking for her phone number at some point but she testified that she gave him a false phone number as she was not interested in him. She did not recall giving him her correct phone number.

15G.R. testified that he began looking for T.C. at around 2:30 a.m. He had been waiting for a reply, after the above exchange of “WhatsApp” messages, but he had not heard back from T.C. The club closed at 3:00 a.m. so G.R. began looking for T.C. He looked in the dancing area, at the tables, and throughout the main floor and basement. The only place he did not look was in the women’s washroom. He went to the coat check to get their coats, as he had the two coat check tickets and the club was closing. He went outside with their coats. He did not see either T.C. or Godad during this approximately half hour period when he was looking for T.C. in the club. The club was less than half full at this point. G.R. was concerned because he and T.C. always left together and went home together, when they went out at night, and this was their plan on this occasion.

16At this point, once he was outside the club with their coats, G.R. began sending T.C. text messages on his telephone. Unlike the earlier “WhatsApp” messages, these phone service text messages were preserved and were produced at trial in documentary form (Exhibit 9). They are written in Spanish but they were translated during the trial. The first four text messages are as follows, beginning at 3:07 a.m. (that is, just after the club had closed):

• “[T.C.’s first name], call me urgently, I am outside with your jacket, if you don’t call me in 30 minutes, I will call your Mum, I am worried (accompanied by a thumb down emoji);
• It is 3:08 a.m., call me in 30 minutes or less or I’ll notify your Mum, bad things happen, you shouldn’t be irresponsible;
• If you don’t appear by 3:30 p.m. I’ll call your Mum (accompanied by a frowning or angry emoji); and
• It is now 3:11 a.m.”

17G.R. testified that he was also phoning T.C., at the same time as these text messages, but she was not answering her phone. He was impatient and cold, waiting outside the club for her while texting and phoning. At some point, he stopped waiting and walked up to the Eaton Centre and to Dundas Square, hoping that she would get in touch. She did not respond to his calls or text messages and so he went home. Video surveillance evidence from Godad’s apartment building near the Sky Dome stadium, shows that Godad and T.C. arrived in the lobby at about 3:01 a.m. and entered the elevator at about 3:02 a.m., that is, about six or seven minutes before G.R.’s above texts from outside the club. T.C. was wearing Godad’s winter jacket over her shoulders. She appeared to be intoxicated. She was walking, while holding Godad’s hand. She was not falling, stumbling, or being held up. However, she was unsteady on her feet, she bumped into the frame of the elevator door, she was guided by Godad, and she leaned into him and into the back wall of the elevator in order to steady herself. There is some sign of mutual affection as she appeared to smile at him in the elevator and to move in front of him and cuddle with him, before they briefly kissed. She also had a somewhat blank look on her face and seemed somewhat confused. Godad was cheerful and friendly and pointed out the view from an apparent window in the back of the elevator. There was no sign of violence or aggression. T.C. had no recollection of any of this interaction when the video surveillance evidence was played to her at trial. This video surveillance evidence was the subject of the Crown’s pre-trial Motion.

18Returning to T.C.’s account, her next memory was of waking up naked in Godad’s bed at his apartment at 7:00 a.m. Her only recollection of anything, between her last memory at the club (when returning from the bathroom) and waking up at 7:00 a.m., is a brief five second recollection of lying on her back with Godad on top of her, penetrating her vagina with his penis, and of reaching down with her hand between their bodies and feeling something rubbery like a condom on his penis. She did not have this recollection when she awoke at 7:00 a.m. It only came to her later that morning, at some point after she left Godad’s apartment. Because she only remembered it later, she said nothing about it when she awoke. She knew it was 7:00 a.m. when she awoke because she saw a clock on the wall in Godad’s bedroom. She testified that this brief five second memory came to her at some point between the Uber ride home and when she got home. She appeared to testify at the preliminary inquiry that the memory came to her “when I got home”, and “maybe until I got home”, but she could not be more precise at trial as to when the recollection came to her.

19T.C. testified in chief that she did not consent to being in Godad’s apartment, and that she must have been taken there against her will, and that she did not consent to intercourse, while also acknowledging that she had no recollection of what happened that night at Godad’s apartment other than the brief five second memory (summarized above). In cross-examination, T.C. clarified that the five second memory was only a “flash” and that she could not recall what she was thinking about the act of intercourse with Godad at the time. She confirmed this evidence two or three times and agreed that her evidence in-chief, about not consenting to intercourse, was more accurately stated as having no memory of consenting.

20When T.C. awoke and saw that it was 7:00 a.m., she immediately started to worry because her son wakes up at 7:00 a.m. Her primary concern at this point was to leave and return home because of her son. Her son often comes into her bed, if he wakes up on his own, or she will go to him and wake him up. Either T.C. or her mother then gets him ready for school. It was her son’s last week in school before the Christmas break.

21Godad was next to her in the bed when she awoke and she asked where they were. He told her that G.R. had left her at the club and so he took her back to his apartment. She did not believe this explanation. She also did not know how she came to be naked but she assumed that something had happened between her and Godad, given that she was naked in his bed. She asked Godad where her phone was and he handed it to her. It was somewhere near the bed and was not in her bag, when he handed it to her. She saw a lot of text messages on her phone, from both G.R. and her mother, and they were concerned. She did not recall taking her phone out of her bag in the bedroom or seeing these messages before she woke up. She asked Godad for her clothes and he handed them to her. She got dressed but she did not have her coat and did not know where it was.

22T.C. testified that she felt nauseous to her stomach when she awoke and wanted to vomit. She also testified that she was on the second day of her period and was bleeding. She had been wearing a tampon that night at the club and did not recall taking it out. It was only once she got home, later in the morning, that she realized she did not have the tampon. She did not know what had happened to it. She continued to feel nauseous all day.

23T.C. did not stay long at Godad’s apartment, after awaking at 7:00 a.m. She called Uber and obtained the address for his downtown apartment from Godad. Her receipt from Uber on her phone indicated that she was picked up at Godad’s apartment building at 7:11 a.m. On their way to the elevator, Godad took her to the living room in his apartment and showed her where she had vomited and then showed her the view of the city from his window. He did not seem to be rushing her out of the apartment. He accompanied her down to the ground floor in the elevator. She still had no explanation for how she came to be naked in Godad’s bed and she had no explanation for the large gap in her memory. She also had no recollection of vomiting. She was curious as to what had happened and so she asked him while they rode down in the elevator. He replied that he did not want to talk as there were cameras in the elevator. When the elevator arrived on the ground floor, the Uber driver was already there.

24T.C. was driven home in the Uber car. The ride took about a half hour. T.C. testified that she believed Godad had brought her to his apartment against her will but she denied being angry when she awoke in his apartment and when she spoke to him in his apartment and in the elevator. She testified that once she was in the Uber car she had “mixed feelings”. In cross-examination, the preliminary inquiry transcript was put to her where she testified, “Of course I was angry. I just wanted to leave as soon as I could. I wasn’t happy”. She agreed this evidence was true. She testified that she wanted nothing more to do with Godad. Nevertheless, she initiated a text message conversation with Godad once she was in the Uber car.

25This text message conversation between T.C. and Godad, which was the subject of the defence pre-trial Motion, was in English. It was preserved and was tendered at trial in documentary form (Exhibit 4). It began at 7:21 a.m., about 10 minutes after the Uber ride began. T.C. sent the first message, as follows:

“Omg I’m so sorry. This is so embarrassing.”

T.C. explained in-chief that this text referred to the fact that Godad told her that she had vomited on his carpet. She felt bad, sorry, and embarrassed and felt that she owed him an apology. She recalled sending this text. Immediately after this first text message, she sent Godad a “thumb up” emoji. She testified that this must have been a mistake as there was no reason to send it. It would refer to something good, that is, something you agree with. T.C. testified that there were a lot of things going through her mind at this point. She did not recall getting drunk or vomiting, she felt that she had been brought to Godad’s apartment against her will, and she felt that he had lied to her about the reason why he brought her there. Nevertheless, he had told her about the vomiting a number of times and so she was referring to that subject first in their text message conversation, amongst the many other things that were also on her mind. She agreed in cross-examination that she did not ask Godad about the other things that were on her mind.

26Godad responded to T.C.’s initial text with a text message of his own, as follows:

“Easy to say that when I smell all [T.C.’s first name] Gucci lol. Pablo Tati ‘You don’t need coat check’. Lfmao.”

T.C. testified that she did not understand Godad’s reply. She answered as follows:

“You are not helping”.

T.C. testified that this second text from her meant that she did not understand and that she was not feeling well. Godad replied:

“Omg trying to make your Ubering entertaining … Not joking, my forehead smells like your inside.”

T.C. testified that she did not understand this response. She replied:

“Daniel, I feel horrible.”

T.C. testified that this third text from her referred to the fact that she was feeling sick during the Uber ride home. Godad replied:

“Your journey brings you to unknown insights. Socrates said, ‘Know they self’.”

27At this point, T.C. sent a text message that asked Godad a question, as follows:

“Did you put on a condon?”

Godad replied, “Yes”. T.C. testified that “condon” is the Spanish term for “condom”. She explained in her testimony that when she awoke naked in Godad’s bed, she assumed something may have happened and she wanted to make sure that what she thought happened was true. She had not had any thought about a condom prior to this text. However, she continued and testified further that she thought the five second memory of feeling something rubbery like a condom had come to her prior to this text.

28Godad continued in his reply, stating as follows:

“Hey [T.C.’s first name], could you relax please. You literally destroyed my living room by puking. I spent an hour cleaning. But I didn’t mention that. Please relax”.

T.C. replied as follows:

“Ok I’m sorry. I feel like a slut, plus I have never done this. I feel like a teenager.”

Godad replied, “No apologies needed”.

29T.C. testified variously during examination-in-chief about these particular texts, as follows: she did not know what she was saying “I’m sorry” for, at this point; she felt badly about the alleged vomiting, but she did not care and did not really believe that she had vomited; and she did not know what she meant by saying “I feel like a slut”, “I have never done this”, and “I feel like a teenager”. She did not remember sending these texts and did not know what she meant. She was sick at the time, she felt angry, she felt bad, she was worried for her son, and she did not know why she ended up in Godad’s apartment. She was not thinking clearly. In cross-examination, she confirmed that she did not recall these particular texts or knew what she meant. She insisted that she did remember the earlier texts that she had explained, during examination-in-chief (in the manner summarized above). Her testimony at the preliminary inquiry was put to her, to the effect that “I don’t remember writing those messages” to Godad. She agreed that she gave this testimony at the preliminary inquiry and that it was true at the time. However, her memory was not better at the time of the preliminary inquiry in October 2018. She now recalls some of the texts, but not all of them. She could not say when her memory of some of the texts came back to her but it was after the preliminary inquiry.

30After saying, “No apologies needed”, Godad continued the text conversation as follows:

“Remember the goddess inside. You are not except Godiva. Lol … Sorry I love word plays. I am actually a nerd”.

T.C. replied, “I think I get it now”. She testified that she did not know what Godad meant in this text or why she wrote her reply. Godad concluded the text conversation, referring to “[T.C.’s first name] commute – get there tomorrow. Now commuting in a far away place. Sorry bad jokes”. T.C. testified that she did not know where she was in the Uber ride at the time of this last part of the text conversation, which was under the time stamp 7:21 a.m., and she did not know whether it was all one continuous conversation.

31G.R. testified that he sent a further text message to T.C. after he had returned home. It was preserved and tendered in evidence in documentary form (Exhibit 9). It was time stamped 5:04 a.m. and was written in Spanish. It was translated at trial as follows:

“[T.C.’s first name], call me as soon as possible. What happened? You shouldn’t disappear like that. I am back in your house, call me. I do not wish to worry your Mum. You are not an adolescent any longer. I have your jacket here. Call me urgently. It is 5:03 a.m.”

G.R. explained that he had also been calling T.C. once he reached home, but she was not responding to the above text or to his calls. Her mother was still asleep and he did not want to worry her mother by waking her up and telling her that T.C. was not home. G.R. sent one final text at 6:17 a.m. It stated: “Call me urgently”. T.C. did not reply.

32At some point, G.R. decided to wake T.C.’s mother and give her the “bad news”, as he put it in his testimony. He told T.C.’s mother that her daughter was “missing”. Her mother reacted badly, going into shock and crying. G.R. explained that T.C. and her mother are “very close”. At some point T.C.’s son woke up, as he must have heard them talking. Around 7:00 a.m., T.C. finally called G.R. He testified that the phone call was very hard to understand as T.C. seemed “lost”. She could not explain where she was or what had happened. He understood her words and that she was in an Uber car but he could not get a coherent account out of her. More than a half hour after this phone call T.C. arrived home.

33T.C.’s account of her arrival at home was that she had already seen the text messages that G.R. had sent her. He came outside to meet her and gave her jacket to her, as she was cold. G.R. told her that her son and her mother were inside and that they were concerned. T.C. knew that G.R. and her mother were concerned that something had happened to her and that her mother was mad. She went into the house. Her mother was getting her son ready for school. Once her son left for school, T.C. went downstairs and went to bed and fell asleep. Her mother woke her up at some point but T.C. did not feel well and she went back to sleep until about 3:00 p.m. when she awoke. She was still feeling sick to her stomach. Her mother told her to go and see her family doctor. T.C. agreed that, at some point in this chronology, her mother came downstairs and was mad and was asking her questions. T.C. also agreed that, at some point, she told her mother that she was taken against her will and that she had not intended to stay out. She denied saying this because her mother was mad that she had not come home.

34T.C. went to see her family doctor at about 5:00 p.m. that day in order to see if she needed to take anything or do anything, as a result of what had happened. She was concerned about the possibility of sexually transmitted diseases. She told her doctor what happened and he sent her to the hospital where they would have a “rape kit”. She went to one hospital where they had no “rape kit” and then finally went to Women’s College Hospital. It was now after midnight on December 22, 2017. She was given medication for STDs and the police arrived. She gave the police a statement. They also seized the clothes she wore that night and photographed the clothes. They also photographed some bruises on the undersides of both biceps, close to her armpits (Exhibits 5 and 7). She had not washed the clothes. She did not have the bruises before she went to the club the previous night. She did not know what caused the bruises.

35G.R.’s account of T.C.’s arrival at home was that he went outside to meet her and gave her the winter coat. It was cold outside and she was wearing only her jeans and her sleeveless blouse. She was disoriented, laughing, smiling, and being “silly”. T.C. denied the suggestion that she was smiling, when she testified. G.R. described her as “disoriented” because he felt that she was in a difficult or bad situation and yet she was looking around and smiling. He asked her where she had been and what had happened and she could not explain. Once they were inside the house, T.C.’s laughing and smiling and being “silly” continued. Her mother asked T.C. the same questions that G.R. had asked and she continued to appear “disoriented”, in the sense of not knowing what had happened. Once T.C.’s son went to school there were further discussions and they eventually went to the doctor and to the hospital. G.R. described T.C. as appearing “lost” and acting in an unusual way. She would say that she could not recall what had happened and then at some point she began explaining what happened. G.R. was not sure when she began to explain what had happened. It was an emotional unfolding of her story. In the end she was crying.

36G.R. testified that he later saw the bruises under T.C.’s arms. He had not seen them at the club. He also testified that T.C. was bleeding from her “private parts”. He could see the blood running down her jeans. However, this latter evidence was contradicted by the photographs of the seized jeans (Exhibit 5), which show no blood stains.

37The last evidence tendered by the Crown was the toxicology report prepared by the Centre of Forensic Sciences (C.F.S.), and various related admissions agreed to by the parties (Exhibits 10, 11, 12, and 18). Blood and urine samples were taken from T.C. at 1:10 a.m. and 2:40 a.m. on December 22, 2017 at the hospital. Assuming T.C. consumed her last drink at the club at about 2:00 a.m. on December 21, 2017, the above samples would have been taken just over and just under 24 hours after her last drink. The samples were tested at the C.F.S. and alcohol was not detected. The samples were also tested for drugs commonly found in “drug facilitated sexual assault cases” (or “date rape” drugs). Two of these drugs – Ketamine and Flunitrazepam – were essentially ruled out as there was no trace of them and they “can typically be detected in the urine for at least two days after use”. A third “date rape” drug – GHB – was not tested for because it is rapidly eliminated and cannot be detected after 12 hours.

38The C.F.S. expert, Dr. Marie Elliot, also described the central nervous system depressant effects of alcohol in her report, including “slurred speech, staggering gait, and impaired balance … As the BAC increases, the effects become more pronounced and may include loss of motor coordination, impaired consciousness, and nausea and vomiting. Impaired consciousness in this context may range from sedation to a complete loss of consciousness”. Finally, and perhaps most importantly, Dr. Elliot explained the effects of alcohol on memory as follows:

The effects of alcohol on memory are unpredictable, and cannot be related to specific blood alcohol concentration (BAC) or range of BACs. A ‘black out’ is more likely to occur in individuals consuming large amounts of alcohol in a short period of time, and in individuals reaching high BACs. Assuming that an individual has ‘blacked out’ as a result of alcohol consumption, I would expect there to be some signs of alcohol intoxication (e.g. slurred speech, impaired balance and gait); however, the level (or degree) of intoxication will vary depending on the individual and their pattern of drinking. The fact a person “blacked out” due to alcohol only means that they were intoxicated to some degree whether extremely intoxicated or only moderately intoxicated. [Emphasis added].

(ii) The defence evidence

39The accused Godad is 40 years old. He was born in Somalia and came to Canada in 1994 at age 15, with his mother, grandmother, and two brothers. He became a citizen in 2004. He completed high school in Toronto and attended three years of undergraduate studies at the University of Toronto, while working at the same time to support himself. He obtained a job at a major bank in 2001, at age 22, and ended his university studies in order to work full time. He worked his way up at the bank and now, after some 18 years working there, he is the manager of a customer services team of 10 to 15 employees. He lives in a high rise apartment building in downtown Toronto near the Sky Dome.

40Godad began the evening of December 20, 2017 at a bar in downtown Toronto called “Crocodile Rock”. He met up with a group of people there, between 9:00 and 9:30 p.m., who were all celebrating the Christmas season. Their plan was to continue on to the “Fiction” club after drinks at the “Crocodile Rock” bar. Godad believed he had about three drinks at this bar, over about an hour and a half. At about 11:00 p.m., the group of five to seven acquaintances (both male and female) proceeded on foot to the club, which was nearby.

41Godad described the club as extremely crowded and full of energy. Everyone started dancing on arrival. It was impossible to keep the whole group together on the dance floor. At some point two or three members of the group, including Godad, proceeded to the bar and had a round of tequila shots. Godad left his credit card with the bartender, which gave him V.I.P. status at the club and allowed him to run a tab at the bar. You could see the dance floor from the bar. Godad was dancing and socializing for about an hour after his arrival.

42Godad’s account of how he met T.C. and G.R. is similar to their accounts. They were dancing in front of him and he said “hello” and introduced himself. The various groups on the dance floor were somewhat indeterminate, because it was so crowded, but T.C. and G.R. were definitely together, perhaps as part of a group. Godad talked with T.C. He noticed her ring and asked if she was married. After chatting together for a period of time, while dancing, Godad invited the group to come to the bar for drinks, which he put on his tab. The general practise that evening, in the group or groups that Godad socialized with, was for one person to pay for a round of drinks and then someone else would pay for the next round. There were four of them at the bar – Godad, T.C., G.R., and a girl who was now with G.R. (presumably Chloé). Godad ordered four tequila shots and two vodka coolers. Everyone had a shot and the two coolers were shared in two glasses and in the two bottles. They were at a high table in front of the bar, with dancing going on all around them. After consuming the drinks, they returned to the dance floor. There were no drugs consumed. Godad does not do drugs.

43It was before midnight when the group had these first drinks. After dancing with T.C. for awhile, Godad invited the group back to the bar for another round of drinks. T.C. and G.R. came with him, and perhaps Chloé, although Godad was unsure whether Chloé came for this second round. Godad again ordered four tequila shots and two vodka coolers and the drinks were distributed amongst the group in the same high table area in front of the bar. After finishing the drinks, they returned to the dance floor. Once again, T.C. and Godad danced together and G.R. and Chloé danced together. This second round of drinks and the further dancing lasted for approximately a half hour. T.C. appeared to be happy.

44At some point, Godad became separated from T.C. He reconnected with another group of friends or acquaintances and socialized with them for a period of time. Godad did not reconnect with T.C. until it was getting close to “last call” at the bar at 2:00 a.m. He was at the bar with some of the people he had been socializing with. He texted some of the others who were not there, including T.C., to come and join him for “last call”. He identified the 1:45 a.m. text message to T.C. – “Hola Costa Rica. This is Daniel from VIP” – as one of these texts that he sent at this point in the evening. His reference to “VIP” in the text message was to the particular area of the bar where V.I.P. service was located. He agreed it was implicit in the text message that he was paying for drinks. It was still very crowded in the club. The practise was to come to the bar and drink there and not to drink on the crowded dance floor. T.C. appeared at the bar and he asked her to join his group for “last call”. He also asked her to invite G.R. and Chloé, but T.C. did not know where they were. Godad estimated that he and T.C. had been separated for about an hour. He assumed that she had been with G.R.

45Once T.C. arrived at the bar, Godad ordered a round of drinks for himself, T.C., and the four or five others who were with him at the bar. Once again, he would have ordered shots of tequila and a sipping drink of some kind, either cocktails or a vodka cooler. The bar at the club cannot sell alcohol after 2:00 a.m. so these were their last drinks. Godad agreed that this round of “last call” drinks was likely consumed by this group, including T.C., in the hour between 1:45 a.m. and 2:45 a.m., by which time they would have been starting to leave the club. The club closed at 3:00 a.m.

46Godad’s general plan with the various people he had been socializing with that night, both at “Crocodile Rock” and at “Fiction”, was that they would perhaps go to a restaurant somewhere, in order to eat after the club closed. The exact plan as to who would go, and where they would go, had not yet been settled. These kinds of details would normally get worked out once they were outside the club on the street, after closing. Godad and T.C. danced together to some of the last slow salsa dances, after “last call”. Her dancing was energized and more passionate and intimate. Godad invited her to join the group that was going out to eat, and he invited her to include G.R. and Chloé. T.C. seemed to be interested in accepting Godad’s invitation but she said that she could not find G.R. and Chloé. She had her phone out and was trying to reach her friends.

47Godad had to pay his bill at the bar and get his credit card. He was dancing with T.C., both before and after he paid the bill, and he kept asking T.C. whether her friends were coming. It became apparent that T.C. did not know where G.R. was. They looked for G.R. and Chloé and could not find them. The club was starting to empty out, as the 3:00 a.m. closing time approached. Members of the group that Godad had socialized with were heading downstairs to the coat check and were then going outside. Godad asked T.C. if she wanted to wait outside for her friends. At this point, Godad learned from T.C. that she could not get her coat (either because G.R. had her coat or because G.R. had her coat check ticket). They had another dance together and were holding hands. Godad felt that he could not leave with the group outside and go to a restaurant, and that he had to stay with T.C. There was still no sign of G.R. and Chloé, and Godad and T.C. had to leave the club. Godad asked T.C. if she wanted to come to his apartment, which was nearby, and wait there for her friends to reappear. She agreed. He went to the coat check and got his own winter jacket. He gave it to T.C. and put it over her shoulders, as it was cold outside on the street. There were taxis waiting outside the club when they exited. There was only one entrance and exit to the club.

48Godad estimated that he and T.C. probably exited the “Fiction” club at about 2:50 a.m. or 2:55 a.m. He based this estimate on the fact that the club closed at 3:00 a.m., the fact that the video surveillance at his apartment building showed he and T.C. arriving there at about 3:01 a.m., and the fact that a taxi ride from “Fiction” to his apartment building would take about 5 or 10 minutes (see Exhibit 14). Assuming the accuracy of this estimate, Godad and T.C. would have been outside “Fiction” on the street getting into a taxi about 10 or 15 minutes before G.R.’s texts to T.C., which were sent at 3:07 a.m. from outside “Fiction” (see Exhibit 9).

49During the taxi ride, Godad and T.C. were talking and joking and holding hands. He described them both as being “happy drunk”. He estimated that he had consumed about one drink every half hour, or about 10 to 15 drinks, over the entire evening at both the bar and the club (on his evidence, he was drinking for a maximum of about six hours, from 9:00 p.m. to 3:00 a.m., or for a minimum of about five hours, from 9:30 p.m. to 2:30 a.m., so his above estimates seem plausible). He had gone out to celebrate and he was feeling good, but he was aware of his surroundings and was able to carry out various tasks such as paying his bill at the bar, recovering his credit card and his coat, and directing the taxi.

50Godad’s apartment is on the 36th floor of his building. He and T.C. entered the lobby, they were holding hands and he was leading or guiding her. She had his coat draped over her shoulders. They stopped in front of the concierge and greeted him and then went to the elevator. I have previously described the video surveillance evidence from the lobby and the elevator and will not repeat that description. It is apparent that T.C. was intoxicated to some degree and that Godad was assisting and leading her. There were also some signs of affection. Godad was cross-examined extensively about various details in the video surveillance. He agreed repeatedly and candidly that many of these details indicated T.C.’s impairment due to alcohol.

51Godad drew a floor plan of his 36th floor apartment (see Exhibit 14). Upon entry, there is an open plan kitchen and living room straight ahead. This is where they went and he showed T.C. the view of the city from his living room window. There is a hallway to the left, upon entry, which leads to the master bedroom and ensuite bathroom, which was where Godad slept. The hallway also leads to a second bedroom, a den, and a washroom which were occupied by his three female housemates. He did not see them and he was conscious of not distributing them. The plan was that he and T.C. would wait at his apartment until G.R. contacted T.C. Both G.R. and T.C. had cell phones, T.C. appeared to have been trying to contact G.R. without success, and Godad assumed that G.R. was somewhere nearby with T.C.’s coat and would soon contact her and take her home.

52After showing T.C. the view from the living room, Godad went to the kitchen as he was hungry. At this point T.C. vomited in the living room. It was only a couple of minutes after they had first entered the apartment. Godad went to her, let her finish, and then asked if she could go to the washroom. She said that she could, so he guided her down the hallway to his ensuite bathroom, respecting his three housemates by not using their bathroom. He asked T.C. if she was okay and made sure she had a glass of water. She was standing by the sink and she asked for privacy. He left her and returned to the living room to clean up the vomit. After five minutes, he went back to check on her. He knocked on the bathroom door and she asked for a little more time. He went back to cleaning the vomit, before returning to the bathroom a second time. The bathroom door was now open and Godad saw that T.C. was lying on his bed in the master bedroom. He also saw that her phone was lying on the bed. They made eye contact and Godad asked if she had reached G.R. She replied something to the effect, “I don’t know where they are”. He asked how she was and she replied “okay” or “better than when she arrived”. Godad denied that T.C. was physically incapacitated after vomiting. She was able to walk around the apartment, from the living room to the ensuite bathroom and from the bathroom to the master bedroom. He never had to lift her up, holding her under her arms to put her on the bed and causing the bruises near her armpits, as was suggested in cross-examination.

53Godad went into the bathroom and washed his hands. He left the door open and they talked. She moved over to one side of the bed, leaving more room, and made a gesture raising her hands, as if to invite him to join her on the bed and give her a hug. Godad put on some music on his desktop computer and lay down on the bed beside T.C. They began talking by joking about the vomit and then making “small talk” about television shows and movies. They joked about her being from Costa Rica and not from Columbia. She laughed at his jokes. She became more calm and composed and they talked about more serious personal matters that required some openness. She was a different person from the one who was flirting and joking and dancing and singing along with him at the club. He asked her about her husband and any boyfriend and about her Mum and her son. He could see where things were going and he wanted to know who he was getting involved with.

54This conversation on the bed continued for a period of time that was more than 20 minutes but less than an hour. They had been in the apartment for about an hour and had nothing further to drink. She said that she had been “feeling stressed” and had “needed” the night out. She said that she had a great time. They were holding hands and lying on the bed facing eachother. They began kissing and caressing eachother with their free hands. These were passionate “French kisses” that were sustained and mutual. Godad gave detailed evidence about how this initial sexual contact on the bed escalated into him performing oral sex on various parts of her body, and then to intercourse with a condom, which did not ultimately conclude in a male orgasm as he could not maintain his erection. I do not intend to summarize this detailed account provided by Godad as the Crown fairly conceded that, if it is true or raises a reasonable doubt, it clearly shows that T.C. was actively initiating and participating and was communicating consent to the various sexual acts, both verbally and with her hands and other bodily movements. This escalating sexual activity, from the initial kisses to eventual vaginal intercourse, lasted for more than 20 minutes but for less than an hour, according to Godad’s account. He testified that he did not observe any vaginal blood or tampon. They fell asleep when he could not maintain his erection.

55Godad’s account of events in the morning, after he and T.C. awoke, was that T.C. said “I have to be there for my son”, upon seeing that it was 7:00 a.m. They had not set an alarm. He had intended to make breakfast for her but it was clear that she wanted to leave. She pointed to her clothes as she was naked, she called Uber, and she asked Godad to confirm the address on her phone for the Uber driver. It was a very short time between her awaking and her leaving, which he estimated as 7 to 10 minutes. T.C. did not ask him about how she got to his apartment. Rather she spoke about her son and about her mother, saying repeatedly “she’s going to kill me”. Godad agreed that he may have said something about G.R. leaving her at the club. They did not discuss letting G.R. know that she was on her way home.

56They left the bedroom and went through the kitchen on their way to the living room, so that Godad could show her the view and show her where the Uber driver would pick her up. On their way, they walked past the place where T.C. had vomited. The carpet was still wet and there were paper towels covering it. Godad may have made a bad joke about what she ate last night. It was only a brief incidental reference to her vomiting and it was not apparent that she felt badly about it.

57They took the elevator down to the ground floor. Godad denied telling her not to talk about what happened because of the cameras in the elevators. T.C. appeared to be preoccupied with her mother as she referred repeatedly to this topic. The Uber driver was parked in front of the building and Godad had last words with T.C. in the lobby, perhaps saying “take care”. When he received her first text message at 7:21 a.m. and she said, “omg I’m so sorry, this is so embarrassing”, he did not know what she was referring to but could only think that she was referring to her preoccupation with her mother, as that is what she referred to repeatedly as she was leaving. When she went on to ask about use of a condom, he understood that she was referring to sexual intercourse. She knew he had put a condom on because he had been careful to show her. When he repeatedly told her in his text messages to “please relax”, he was addressing her concerns about her mother and about not being there for her son when she awoke. These were the concerns that she had raised before leaving.

C. ANALYSIS

58The essential elements of the offence of sexual assault are well-known. The three part actus reus is the application of force, without the consent of the complainant, in objectively sexual circumstances. The two part mens rea is that the application of force must be intentional, and the accused must known or believe that the complainant is not communicating consent to the particular sexual act in question. See: R. v. Chase (1987), 37 C.C.C. (3d) 97 (S.C.C.); R. v. Ewanchuk, [1999] 1 S.C.R. 330; R. v. Barton, 2019 SCC 33 at paras. 86-92.

59In my view, there is only one real issue in dispute in this case and that is the actus reus element of consent. The focus in relation to this element is solely on the complainant T.C.’s subjective state of mind and whether she wished to engage in the various sexual acts with Godad, at the time when those acts were taking place. See: R. v. J.A., 2011 SCC 28 at paras. 44-6. As to the other elements of sexual assault, there is no question that Godad applied force to T.C. in objectively sexual circumstances, that he intended to apply force, and that he would have known if she had not communicated consent. He described her words and actions in vivid detail, to the effect that she was actively communicating and initiating the various sexual acts. There was no ambiguity in his description of her communication, or in his subjective state of mind about what she was communicating to him. Godad’s account of what happened goes to the actus reus and not to the mens rea.

60Focusing then on the actus reus element of consent, the Crown realistically conceded that the evidence in this case was that T.C. acknowledged, in cross-examination, that she has no recollection of her subjective state of mind at the time of the sexual acts in question. Accordingly, the Crown cannot prove this element through direct evidence from the complainant herself about her own state of mind. Nor is there sufficient circumstantial evidence of her actual state of mind at the time of the sexual acts. For example, no one saw or heard her say or do anything from which her subjective lack of consent at the relevant time could be inferred. See: R. v. Garciacruz (2015), 2015 ONCA 27, 320 C.C.C. (3d) 414 at paras. 48-57 (Ont. C.A.); R. v. J.R. (2006), 40 C.R. (6th) 97 at paras. 17-19 (Ont. S.C.J.), aff’d 2008 ONCA 200, 59 C.R. (6th) 158 (Ont. C.A.).

61The Crown seeks to prove the actus reus element of lack of consent by way of proving that the complainant T.C. lacked the capacity to consent. The Court of Appeal recently clarified the legal standard for proof of lack of consent, on this basis of lack of capacity, in R. v. G.F. (2019), 2019 ONCA 493, 378 C.C.C. (3d) 518 at paras. 33-40 (Ont. C.A.). The Court stated the following:

An unconscious or sleeping person is incapable of consenting to sexual activity. On the other hand, capacity for considered evaluation of the collateral risks and consequences of sexual activity sets the bar too high for capacity to consent to sexual relations.

In R. v. Al-Rawi, (2018) 2018 NSCA 10, 359 C.C.C. (3d) 237 (N.S. C.A.), Beveridge J.A. discussed elements of capacity to consent to sexual relations established by the jurisprudence, at paras. 60-61, 66-67, and I adopt that summary, subject to the caveat that, in light of the varieties of human conditions which may raise issues of incapacity, it may not describe all of the circumstances in which a complainant could be found to lack an operating mind:

This begs the question: what constitutes an operating mind? Comatose, insensate or unconsciousness cannot qualify. Major J., in R. v. Esau, supra, reflected that being unconscious due to intoxication is not the only state capable of removing a complainant’s capacity to consent (para. 24). Mere awareness of the activity is also insufficient to ground capacity where the trial judge accepted that the complainant was “out of control” and “not able to say no” due to the involuntary ingestion of drugs (R. v. Daigle (1997), 127 C.C.C. (3d) 130 (Que. C.A.), aff’d 1998 S.C.R. 1220).

On the other hand, requiring the cognitive ability necessary to weigh the risks and consequences of agreeing to engage in the sexual activity goes too far.

Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:

1. appreciating the nature and quality of the sexual activity; or
2. knowing the identity of the person or persons wishing to engage in the sexual activity; or
3. understanding she could agree or decline to engage in, or to continue, the sexual activity.

In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. As detailed above, these inquiries are entirely subjective.

[citations in original.]

Here, I agree with the submissions of the Crown on appeal that while mere proof of drunkenness, loss of inhibitions, regret for a bad decision or some memory loss do not of themselves negate capacity for consent, some physical actions such as walking a short distance, making a phone call, speaking, and some awareness of or resistance to sexual activity do not necessarily preclude a finding of incapacity. I also agree that some memory of the events is not necessarily inconsistent with incapacity: R. v. P. (C.), 2017 ONCJ 277 (Ont. C.J.), at paras. 69-70, aff’d 2019 ONCA 85 (Ont. C.A.), leave to appeal to S.C.C. requested, 38546 (March 11, 2019) [2019 CarswellOnt 5368 (S.C.C.)]; Tariq, at paras. 5, 116, 120-121, 124; Daigle, at pp. 133, 137; Bell, at paras. 7, 44-46, 48; Wobbes, at paras. 12,15, 24; G. (L.), at paras. 23-24, 94-99; R. v. Merritt, [2004] O.J. No. 1295 (Ont. S.C.J.), at paras. 56-59; R. v. Powers at paras. 2, 7; R. v. Dixon, 2018 ONCA 949 (Ont. C.A.), at paras. 3, 17-18; R. v. Crespo, 2016 ONCA 454, 132 O.R. (3d) 287 (Ont. C.A.), at paras. 5, 9. As the case law demonstrates, the trier of fact must consider all the evidence to make the factual determination of the complainant’s capacity at the relevant time. Issues of incapacity can arise in a multitude of circumstances, including sleep, intoxication, illness, and intellectual disability.

Also see: R. v. J.R., supra at paras. 42-3.

62The Crown does not rely on involuntary ingestion of drugs as the basis for seeking to prove lack of capacity. The Crown conceded that there is insufficient evidence of intoxication and incapacity due to drugs. I agree with this concession. No drugs were found in T.C.’s system, including two common “date rape” drugs that remain in the body for two days. All of T.C.’s drinks appear to have been poured by the bartender and they were shared with a number of other persons who felt no ill effects. T.C. did not taste or see anything suspicious that could indicate she was involuntarily drugged. Finally, Godad’s conduct, in openly inviting T.C.’s two friends to twice join him and T.C. for drinks at the bar, is somewhat inconsistent with any plan to surreptitiously doctor her drinks with “date rape” drugs. For all these reasons, there is no basis to infer incapacity due to involuntary ingestion of some drug.

63The Crown relied solely on voluntary alcohol ingestion as the basis for inferring lack of capacity. In particular, the Crown relied on the video surveillance images of T.C. upon arrival in the lobby at Godad’s building and in the elevator, and on the fact that she almost immediately vomited upon entering his apartment, in the context of all the other evidence concerning the events that night, as the basis for inferring lack of capacity. The Crown conceded that if Godad’s evidence is accepted, or if it raises a reasonable doubt, concerning T.C.’s change in demeanour and her behaviour, after talking with Godad on his bed for some time after vomiting, and concerning her active participation in and initiation of various sexual acts, then lack of capacity could not be proved and I would have to acquit.

64Before turning to my analysis of lack of capacity, I should briefly refer to two minor circumstances that the Crown relied on, namely, the bruising on the undersides of T.C.’s biceps and bleeding due to her period. The evidence of bleeding due to her period is contradictory. T.C. and G.R. both testified that she was bleeding but the police photographs of T.C.’s jeans and Godad’s own evidence both contradict this alleged bleeding. I cannot resolve this conflict in the evidence. As to the bruises, the Crown submits they infer that Godad lifted T.C. up and onto the bed by grasping her under the armpits and at the biceps. This strikes me as an improbable way in which to lift an incapacitated body onto a bed. The location of the bruising is more consistent with the place where a man could hold a woman during sexual intercourse, if he was on top and she reached back with her arms, and if she bruised easily. In short, I did not find either of the above two circumstances to be helpful.

65In my view, the Crown has failed to prove that T.C. lacked the capacity to consent to sexual activity with Godad on the night in question. I am satisfied that there is a reasonably possible inference, based on all the circumstances in the case, that T.C. had the capacity to consent and did consent to sexual relations with Godad. See: R. v. Villaroman (2016), 2016 SCC 33, 338 C.C.C. (3d) 1 at para. 37 (S.C.C.); R. v. Finlay and Grellette (1985), 23 C.C.C. (3d) 48 at 58 (Ont. C.A.). In particular, I rely on the following eight circumstances:

• First, I am satisfied that T.C. was intoxicated due to alcohol when she arrived at Godad’s apartment shortly after 3:02 a.m. However, the video surveillance images show that she was not so severely intoxicated as to be unable to walk or to perform other motor skills or to interact with Godad. More importantly, if she vomited and rid her body of some of the alcohol in that way, and if some time then passed and she rid her body of more alcohol in that way, she would then have been less intoxicated between 4:00 a.m. and 5:00 a.m. that morning, if this was the time when the sexual acts occurred;
• Second, T.C.’s lack of memory is not in itself indicative of lack of capacity. The expert opinion evidence of Dr. Elliot makes it clear that even moderate intoxication can lead to loss of memory, “depending on the individual and their pattern of drinking”;
• Third, the evidence concerning the events that occurred at the club is somewhat unreliable because the accounts of the three witnesses differed on a number of points. However, the evidence of both G.R. and Godad is generally consistent on one point, namely that they both had drinks with T.C. in a group on two separate occasions. According to both of these witnesses, she was happy and normal and was not intoxicated. T.C. testified that she has no recollection of any such drinking together with Godad and G.R. This tends to infer that T.C.’s lack of recollection, if credible and reliable, is a condition that arises after only moderate drinking and at a time when she was not intoxicated;
• Fourth, T.C. herself testified that her lack of recollection or “black-out” arose at a point where she had consumed only four drinks over a period of a couple of hours. She was adamant that she was not intoxicated at this point and yet she suffered a complete loss of memory. Once again, this tends to infer that T.C.’s lack of recollection, if credible and reliable, is a condition that arises after only moderate drinking and at a time when she is not intoxicated. It is therefore plausible that she also does not recall having sexual relations with Godad, and consenting to sexual relations with Godad, even though she was not intoxicated or incapacitated at the time;
• Fifth, the totality of T.C.’s text message conversation with Godad, beginning at 7:21 a.m., immediately after she had left his apartment, is reasonably capable of inferring that she recalled having sexual relations with him (as she expressly asked whether he “put on a condom”), is reasonably capable of inferring that she consented (as she goes on to say “I have never done this” and “I feel like a teenager”), and is reasonably capable of inferring that she bore no animosity towards Godad (as she apologized, perhaps for leaving his apartment so suddenly due to feeling guilt about her mother and her son). She also sent a “thumb up” emoji, perhaps inferring that she thought their night together was good. There are other possible inferences for some of these text messages but, in totality, they are capable of inferring Godad’s innocence. In addition, T.C.’s inability to explain the most significant of these text messages is particularly troubling;
• Sixth, T.C.’s own testimony and G.R.’s testimony and text messages about the pressure and guilt that was put on T.C., because of her failure to come home that night, is troubling. G.R.’s texts at 3:07 a.m. and 5:04 a.m. suggested that T.C. was being “irresponsible” and acting like an “adolescent”. G.R. repeatedly threatened to tell T.C.’s mother about her absence, and then he did tell her mother, who became angry and upset. This was before T.C. returned home. According to her own testimony, T.C.’s immediate concern when she awoke at 7:00 a.m. was for her son. She had always been there for her son in the morning and so she immediately left Godad’s apartment, in a hurry, in order to be home for her son in the morning. She also testified that she saw G.R.’s text messages and was aware that her mother was mad at her, before she arrived at her home;
• Seventh, the evidence about T.C.’s demeanour upon her arrival at home, and the process by which her allegation of sexual assault emerged, are also suspicious. G.R. described T.C. laughing and smiling upon her return home, and being “silly” and unable to explain where she had been. T.C. denied smiling. However, she testified that her mother came downstairs and was angry with her and was questioning her. It is in this context that the allegation of sexual assault emerged;
• Eighth, Godad’s account of the events that night, in the context of all the other circumstances summarized above, leaves me in a state of reasonable doubt as to his guilt. See: R. v. D.W. (1991), 63 C.C.C. (3d) 397 (S.C.C.). His version of events was detailed and plausible, much of it was supported by the various text messages, and certain parts of it were supported by T.C.’s and G.R.’s evidence. The only part of his account that I found somewhat improbable was his alleged inability to find G.R. and Chloé, as the club was closing at 3:00 a.m., resulting in the impromptu decision to take T.C. back to his apartment. However, G.R.’s account that he was also unable to find T.C. during this very same time period was equally improbable. What I am left with on this point is reliable evidence that Godad and T.C. left the club in a taxi around 2:50 a.m. to 2:55 a.m., and that G.R. was not at the front of the club texting T.C. and looking for her until 3:07 a.m. For some unexplained reason, it appears that they missed eachother. In any event, the important time period is later in the morning at Godad’s apartment. In this regard, I cannot reject his account concerning the time when the sexual acts between the two began, concerning the conversation that took place prior to these sexual acts, and concerning the manner in which the sexual acts occurred.

66None of the above eight circumstances are determinative and some are entitled to more weight than others. What matters is the totality of all the evidence. When these eight circumstances are considered together they give rise to a reasonably possible inference that T.C. had the capacity to consent, as defined in G.F., and that she did consent to sexual relations with Godad on the morning in question.

D. CONCLUSION

67For all the reasons set out above, the Crown has not proved the actus reus element of lack of consent beyond a reasonable doubt. Accordingly, the accused Godad is not guilty.

M.A. Code J.