WARNING

The court hearing this matter directs that the following notice 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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or

(ii) any offence under this Act, as it read at any time before the day on which this subparagraph comes into force, if the conduct alleged involves a violation of the complainant's sexual integrity and that conduct would be an offence referred to in subparagraph (i) if it occurred on or after that day; or

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

(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

Ontario Court of Justice

Date: 2020-11-25

Court File No.: Brampton 19-2223

Between:

Her Majesty the Queen

— AND —

C.E.

Before: Justice I. Jaffe

Heard on: October 21, 22 and 23, 2020

Reasons for Judgment released on: November 25, 2020

Counsel:

Y. Brar — counsel for the Crown

M. Hogan — counsel for the accused C.E.

Judgment

JAFFE J.:

Introduction

[1] In early December 2018, while both were residents of the Peel Youth Village, C.E. and H.V. found themselves on H.V.'s bed, both naked from the waist down. C.E. was kissing H.V. and was touching her vagina. Suddenly, H.V. got out of her bed and fled the room. On January 30, 2019, C.E. was charged with sexually assaulting H.V.

[2] C.E.'s trial was focused on the single issue of consent. C.E. asserts that H.V. expressly consented to engaging in the sexual activity whereas H.V. maintains that she had been rendered unconscious by the consumption of alcohol, or at a minimum significantly incapacitated, and only realized C.E. was performing sexual acts on her when she regained awareness.

Legal Framework

Sexual Assault

[3] Before reviewing the evidence, it is helpful to set out some legal principles which will serve as the backdrop against which the evidence in this case will be considered.

Actus Reus

[4] The actus reus of sexual assault is established with proof that the accused touched the complainant, that the touching was sexual in nature, and the complainant did not consent to the touching: R. v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25; J.A., at para. 23. As mentioned, the focus of this trial is squarely on the third ingredient of the actus reus, namely consent.

[5] There are two routes to establishing the absence of consent element of the actus reus. The Crown can prove beyond a reasonable doubt that the complainant did not give consent, or alternatively, that the complainant, while ostensibly consenting, lacked the capacity to consent. Where the Crown has proven beyond a reasonable doubt that the complainant did not consent, the court need not go on and consider the complainant's capacity to consent. It is only where consent was ostensibly given, or there is a reasonable doubt about the lack of consent, that the issue of the complainant's capacity arises: R. v. G.F., 2019 ONCA 493, 378 C.C.C. (3d) 518, at para. 41; R. v. Hutchinson, 2014 SCC 19, [2014] 1 S.C.R. 346, at para. 4.

Absence of Consent

[6] Section 273.1(1) of the Code defines "consent" as being "the voluntary agreement of the complainant to engage in the sexual activity in question." In determining whether a lack of consent has been established, a court must focus on the complainant's subjective state of mind. The actus reus does not require a complainant to voice objection or otherwise express a lack of consent, rather it will be established if the complainant "was not experiencing the state of mind of consent while the sexual activity was occurring": Ewanchuk, at para. 32; J.A. at para. 45.

Incapacity and the Unconscious Complainant

[7] Section 273.1(2) makes clear that consent requires the complainant to be capable of consenting. In other words, a complainant must provide conscious agreement to every sexual act in an encounter: J.A., at para. 31. This necessarily requires a complainant to be conscious throughout the entire sexual encounter: J.A., at para. 37.

[8] An unconscious person cannot consent to sexual activity: G.F., at para. 36. This long-standing principle of common law was given statutory recognition in s.273.1(2)(a.1) the day after C.E. was charged. In the concluding paragraph of J.A., McLachlin C.J. writing for the majority, sums up the state of the law relating to consent and the unconscious complainant as follows:

"The definition of consent for sexual assault requires the complainant to provide actual active consent throughout every phase of the sexual activity. It is not possible for an unconscious person to satisfy this requirement, even if she expresses her consent in advance. Any sexual activity with an individual who is incapable of consciously evaluating whether she is consenting is therefore not consensual within the meaning of the Criminal Code."

[9] However, a finding that a complainant was incapacitated and therefore unable to give consent, does not depend on a finding that he or she was completely unconscious. Incapacity can also be found in complainants who experienced diminished awareness or recall concerning the events in question: G.F., at para. 26. As the Court pointed out in G.F. "incapacity can arise in a multitude of circumstances, including sleep, intoxication, illness, and intellectual disability": G.F., at para. 38.

[10] Intoxication can lead to a lack of capacity to consent, but not just any level of intoxication will vitiate consent, even if followed by a lack of memory: G.F., at para. 54, R. v. Godad, 2020 ONSC 1392, at para. 65. It is often challenging to determine when intoxication crosses the line into incapacity, and as the Alberta Court of Appeal in R. v. Haraldson noted, though not required as a matter of law, expert evidence can often assist a court on the issue of incapacitation: R. v. Haraldson, 2012 ABCA 147, 524 A.R. 315, noted at para. 7.

[11] The bottom line is that regardless of the cause, a complainant will lack the capacity to consent to sexual activity if he or she is incapable of i) appreciating the nature and quality of the sexual activity ii) knowing the identity of the person or persons wishing to engage in the sexual activity; or iii) understanding he or she could agree or decline to engage in, or to continue, the sexual activity: R. v. Al-Rawi, 2018 NSCA 10, 359 C.C.C. (3d) 237, at para. 66; cited with approval in G.F. at para. 37; R. v. Kwon, 2020 SKCA 56, 386 C.C.C. (3d) 553, at para. 33.

Mens Rea

[12] The mens rea of sexual assault is established with proof of the accused's general intention to touch the complainant together with proof that the accused knew that the complainant did not consent, or was reckless or willfully blind to the absence of consent: Ewanchuk, at para. 42; J.A., at para. 24.

[13] The mens rea defence of honest but mistaken belief in consent is only available to a defendant where he or she not only believed that the complainant was consenting, but where he or she took reasonable steps to ascertain consent, and where he or she believed that the complainant communicated consent to the sexual activity as it was occurring: J.A., at paras. 42 and 48.

[14] Determining whether a particular defendant took reasonable steps is a quasi-objective and fact-specific exercise that takes into consideration the circumstances known to the defendant and asks how a reasonable person would respond in those circumstances: R. v. Crangle, 2010 ONCA 451, 256 C.C.C. (3d) 234, at para. 29, leave to appeal to S.C.C. refused, [2010] S.C.C.A. No. 300; R. v. Alboukhari, 2013 ONCA 581, 310 O.A.C. 305, at paras. 41 to 43; R. v. Malcolm, 2000 MBCA 77, 147 C.C.C. (3d) 34, at para. 24, leave to appeal to S.C.C. refused, [2000] S.C.C.A. No. 473.

The Evidence

[15] C.E. and H.V. gave similar accounts of what had occurred earlier in the evening prior to the alleged sexual assault. According to both parties, C.E. was invited to tag along with a small group of other residents for a trip to the local liquor store. C.E. had recently moved into the Peel Youth Village and H.V. explained that they were encouraged to make new residents feel welcome. While C.E. and H.V. remained outside the LCBO talking, the remaining two members of the group, Gabriel and Alexandria, entered the store and purchased a mickey of vodka.

[16] The group returned to the Peel Youth Village and according to C.E., each of the four group members purchased a pop from a vending machine before heading to the bedroom of Anas, another resident who did not join the group outing to LCBO but who, according to H.V., was already drunk. H.V. recalled things differently and testified that they went directly to Anas' bedroom, though in cross-examination she allowed for the possibility that they purchased pop and she simply could not recall having done so.

[17] The evidence of H.V. and C.E. also differed on the topic of how the purchased vodka was consumed in Anas' room. According to H.V., the group passed the mickey around and each took swigs from the bottle. According to C.E., in an effort to keep the distribution of alcohol even amongst the group members, they each poured vodka into the bottle cap and poured it into their pops. H.V. was certain she did not pour the vodka into a cap and then into a pop but again, she allowed for the possibility that others did.

[18] According to both parties, someone turned on some music in Anas' room, however, while C.E. explained that the group members were dancing, H.V. recalled only that they were not so much dancing as "swaying." C.E. testified that he danced with H.V. H.V. on the other hand has no recollection of dancing with C.E., though again conceded that it was possible she had done so and simply could not remember.

[19] H.V. testified that she began to feel tired and lay down next to Anas. Her next recollection was waking up in her own bed, with her arms straight down by her side and with no idea how she got to her room two floors up from Anas' room.

[20] When H.V. woke up, which she estimated was around 11:00 p.m. or midnight, she realized she was naked from the waist down and a completely naked C.E. was hovering over her kissing her lips with his hands touching her below her waist. While she knew she had no pants on, she could not recall if she was wearing underwear. H.V. could not recall if she said "no" or "stop" but she did recall that she "freaked out" and told C.E. that Anas "needed" her. H.V. then grabbed the first pair of pants she could find on the floor and fled the room.

[21] H.V. testified that she went directly to Anas' room but found that he was "passed out asleep." She then went to the room of another resident, Andrew, and in tears, told Andrew that C.E. was in her room and had been on top of her. At her direction, Andrew went to H.V.'s room to get C.E. to leave. It was then that H.V. realized that in her haste to leave her room, she had inadvertently put on C.E.'s pants.

[22] H.V. testified that it was Andrew who got staff members involved and at some point H.V. attended at the staff office and disclosed to staff member Jemar what had happened. Jemar advised H.V. that it was her decision whether or not to contact the police. H.V. testified that she decided not to involve the police at that point because she was intoxicated and she was concerned she would be blamed for the incident. However, after discussing the incident with Andrew several weeks later, she made the decision to report the incident to the police out of concern that C.E. might do the same thing to someone else.

[23] Andrew Barry testified on behalf of the Crown and recounted how some time after 7:00 p.m. in early December, H.V. came to his room and complained that there was a "naked guy" on her bed. On his own initiative, not at the direction of H.V., Andrew Barry attended at H.V.'s bedroom and observed C.E. in her bed masturbating. Mr. Barry threw him a shirt and told him to leave. Mr. Barry recalled that C.E. looked scared and repeatedly apologized to him.

[24] Mr. Barry explained that he then attended the fourth floor staff room and reported that there was a "naked guy" in H.V.'s bedroom and that they (the staff members) had to deal with the situation now. Mr. Barry then returned to his room and Jemar escorted H.V. to the staff room.

[25] In cross-examination, it was suggested to H.V. that residents at the Peel Youth Village were upset because following the alleged sexual assault, the rules were changed and they were no longer permitted to have other residents in their rooms. H.V. acknowledged that residents were talking about the change of rules and were not happy, though she denied that her name was ever mentioned in such discussions. Mr. Barry explained in cross-examination that there was already a rule in place prohibiting residents from having guests in their rooms, but that the rule was more strictly enforced following the alleged incident.

[26] C.E.'s evidence concerning what transpired in Anas' bedroom, and following, differed from H.V.'s. According to C.E., while Alexandria and Gabriel were hanging out together, H.V. was alternating between dancing with him by grinding her backside onto his front, and dancing on top of Anas, who was lying on his bed. After about 1.5 hours, Alexandria and Gabriel left the room and H.V. started to lean over the bed next to Anas, shaking her backside towards C.E. C.E. began rubbing the back of H.V.'s thigh moving up her leg towards her buttocks. H.V. kept pushing her leg back into C.E.'s hand which he interpreted as "positive affirmation."

[27] C.E. testified that as he was rubbing H.V.'s genital area she reached into a plastic bowl that Anas had next to his bed, removed a condom and, while giving C.E. a "lustful look" she handed the condom to C.E. According to C.E., it was H.V. who suggested they retire to either of their rooms, and it was C.E. who decided that they were going to go to H.V.'s room.

[28] C.E. recalled that they proceeded to H.V.'s room with H.V. leading the way up two flights of stairs. When they arrived at H.V.'s room, they began kissing. H.V. then grabbed C.E.'s shirt and led him to her bed, stopping to make sure he locked her bedroom door. H.V. then lay down on her bed and pulled C.E. down on top of her.

[29] After kissing for a while on her bed, C.E. began to pull off H.V.'s pants. H.V. assisted by lifting up her hips which C.E. took as another positive sign of consent. He then attempted to remove H.V.'s shirt, but stopped when she said "no." According to C.E., the two engaged in general foreplay during which H.V. repeatedly expressed her approval and consent by the sounds she was making and by answering "yes" to C.E. asking her if she was enjoying herself.

[30] C.E. testified that while he was kissing H.V. and touching her vagina as part of the foreplay, she put her hands on his shoulder, pulled away from him and exclaimed that she needed to check on Anas. H.V. then got off the bed, grabbed C.E.'s pants and ran out of the room. C.E. recalled asking H.V. if she was coming back and thinking that she would return, he remained in her bed for what he estimated was between 20-25 minutes. C.E. testified that Andrew then appeared at the door and threw a shirt at him. Two staff members then attended and escorted C.E. out of the room while telling him a resident had accused him of sexual assault.

[31] According to C.E., both he and H.V. were both equally drunk during this time period, perhaps more so than the others, though neither was "overly" drunk. C.E. insisted that at no point in the evening was H.V. unresponsive or incoherent and there was never any doubt in his mind that H.V. was a totally willing and active participant in their sexual activities. In cross-examination, C.E. acknowledged he found it "weird" that H.V. was grinding on an unconscious Anas, but not to the point where he questioned H.V.'s state of mind.

[32] C.E. was also challenged in cross-examination about having construed H.V.'s compliance with consent. However, C.E. maintained that H.V. was not simply compliant but was "enthusiastically responding" to him. C.E. also denied the Crown's suggestion that it was the absence of resistance or objections that led him to believe H.V. was consenting. C.E. insisted that in addition to the absence of objections, H.V. expressed multiple positive indications of consent such as handing him the condom.

[33] C.E. also denied the Crown's suggestion that just before H.V. pushed him away, her arms were straight down her side (an indication that perhaps she was not conscious). C.E. insisted that H.V.'s hands were in contact with him the whole time touching his back and his hair.

The Arguments

[34] On behalf of the Crown, Ms. Brar argues that just prior to pushing C.E. away, H.V. was unconscious and incapable of consenting to the kissing and vaginal touching. Ms. Brar acknowledges that H.V. cannot recall whether or not she might have consensually engaged in various sexual acts during the lead up to her bedroom, but argues that it is beyond dispute that H.V. did not consent to the actions that were being undertaken in the moments immediately prior to her regaining consciousness.

[35] Ms. Brar argues it ought to have been clear to C.E. that there was something wrong with H.V. and that he was willfully blind or reckless about her state of intoxication and thereafter her state of unconsciousness.

[36] Moreover, Ms. Brar argues that it is clear from C.E.'s evidence that his belief that H.V. consented to the sexual activity was based solely, and improperly, on the fact that she did not resist or say "no" to his advances. In other words, C.E. did not have an honest but mistaken belief in communicated consent but had a mistaken belief in what constituted consent. This type of mistaken belief does not afford a defence to sexual assault. Ms. Brar also submits that C.E. was aggressive in cross-examination and his illogical version of events ought to be rejected.

[37] On behalf of C.E., Mr. Hogan argues that the uncorroborated evidence of H.V. does not prove beyond a reasonable doubt that she was unconscious at the time of the sexual activity and unable to consent. Mr. Hogan also hinted about possible motive for H.V. to have fabricated her accusation against C.E. Specifically, it was suggested to H.V. that she was motivated to cast the sexual encounter with C.E. as non-consensual as a means to deflect mean-spirited gossip and blame for the increased restrictions that were put into place by the Peel Youth Village in the wake of the incident.

Analysis

Has the Crown Proven the Actus Reus?

[38] It became clear with counsel's submissions that the sexual activity the Crown argues was undertaken without consent is the activity that was ongoing just prior to H.V. getting out of bed and fleeing the room. It was this activity that the Crown argues was undertaken by C.E. while H.V. was in a state of unconsciousness and unable to consent. C.E. testified that H.V. was never unconscious.

[39] If I find that H.V. was unconscious at the point in time C.E. began to digitally fondle and kiss her, then it follows the Crown has established the actus reus of the offence.

[40] H.V.'s evidence concerning her state of unconsciousness was unsupported by any other evidence. However, I do not accept defence counsel's assertion that a complainant's evidence that she was unconscious could never, on its own, prove an absence of consent. Nor do I interpret the case law to which Mr. Hogan has referred as supportive of that general proposition.

[41] The two cases on which Mr. Hogan relies for the proposition that independent evidence is required to establish a lack of consciousness and a corresponding lack of consent, are R. v. C.P., 2017 ONCJ 277, [2017] ONCJ 277, [2017] O.J. No. 2221, and R. v. J.R., [2006] O.J. No. 2698 (S.C.J.). In both cases, the trial judges concluded that the only significance to a complainant's lack of memory during an alcohol-induced "blackout," without more, is that she cannot give evidence as to whether or not she consented to the sexual activity during the blackout period.

[42] However, there is an important distinction to be made between a state of unconsciousness and a lack of recall due to a blackout: R. v. Tweneboah-Koduah, 2018 ONCA 570, 48 C.R. (7th) 288, at para. 9. In the context of a blackout, the complainant may have retained some cognitive and physical awareness throughout a sexual encounter and may have consented to the sexual activity: R. v. Esau (1997), 116 C.C.C. (3d) 289 (S.C.C.), at 296. Unconsciousness on the other hand, is characterized by a complete lack of awareness and an inability to consent.

[43] What defence counsel is in effect arguing is that a person who renders their victim unconscious in the privacy of his room and out of view from prying eyes, would almost invariably escape criminal liability, for in many cases it would be difficult, if not impossible, for the victim to marshal expert or eye-witness verification of her state of unconsciousness. This is not the case. Section 274 of the Code specifically provides that corroboration of a complainant's evidence is not required in order for it to support a conviction. This has been the law for decades and there is no principled reason why s. 274 would not apply to a complainant's evidence that at the time of the sexual activity, she was unconscious.

[44] I found H.V. to be a credible witness whose evidence did not suffer from either improbabilities or inconsistencies. There were some inconsistencies between H.V.'s evidence and the evidence of Andrew Barry, the only other Crown witness. For instance, while H.V. recalled that upon fleeing her room, she reported to Mr. Barry that C.E. was in her bed, whereas Mr. Barry recalled that H.V. reported simply that a naked man was in her room, and made no mention of it being C.E. However, none of these inconsistencies were material.

[45] Moreover, during her cross-examination, H.V. candidly conceded the possibility that certain events might have occurred in the hours leading up to her blacking out for which she has no recollection. For instance, H.V. admitted that the group members might have purchased drinks from a vending machine, or that she might have danced with C.E. and Anas when they were drinking in Anas' room, or that it was possible she handed C.E. a condom prior to leaving Anas' room. These were all events which, if they occurred, occurred prior to when the Crown alleges H.V. lost consciousness. In fact, the vending machine visit would have happened before H.V. had consumed any of the vodka, and yet H.V. has limited recall from that time period.

[46] It did not appear to me that H.V. tailored her evidence to be most supportive of the Crown's theory and her willingness to make multiple concessions which arguably weakened the Crown's case, supports her credibility.

[47] I also did not discern any animus towards C.E. in H.V.'s evidence nor was there any apparent motive for H.V. to have fabricated her evidence. On this last point of motive, I mention this not because the absence of evidence of a motive to fabricate can enhance H.V.'s credibility, but simply because in his cross-examination of the complainant and his closing submissions, Mr. Hogan floated the possibility of a motive that if found to have existed, would have detracted from her credibility. I have not been persuaded that such a motive existed.

[48] However, a finding that a witness is credible does not lead inexorably to an acceptance of her evidence. Credibility and reliability are distinct concepts, one of which relates to veracity, the other to accuracy: R. v. H.C., 2009 ONCA 56, 241 C.C.C. (3d) 45, at para. 41. In this case, on the basis of difficulties in H.V.'s ability to recall, there is reason to doubt the accuracy of her account of what transpired on the evening in question. As just mentioned, H.V. herself acknowledges that in addition to having a complete absence of memory for a portion of the night, her memory of events leading up to the point she blacked out, and/or lost consciousness, is foggy.

[49] Turning to C.E.'s evidence, I agree that at times C.E. responded to the Crown's questions with a mix of sarcasm and anger. However, demeanour should not be over emphasized in a credibility analysis. While it is ideal to maintain decorum in a courtroom, it is understandable that someone being accused of a serious offence might at times be overcome with frustration and anger. Importantly, I did not find C.E. to be evasive, and his cross-examination unearthed no material inconsistencies either internally or with his previously recorded police statement. I am also unable to accept the Crown's argument that C.E.'s evidence was so illogical as to justify its wholesale rejection.

[50] In cross-examination, C.E. appeared to assert the belief that if someone hands him a condom, as he claims H.V. did, it means she is consenting to sex unless she subsequently voices an objection. If this was in fact C.E.'s mindset, it was flawed. However, C.E. insisted that H.V. expressed multiple positive indications of consent throughout their interactions, including while he was kissing and touching her in the seconds before H.V. bolted from the room.

[51] According to Andrew Barry, C.E. repeatedly apologized when found naked in H.V.'s bed. However, I cannot conclude that his apology was an expression of guilt. By being in another resident's bed and by committing adultery, C.E. was breaching at least two rules that night, either one of which could reasonably explain his contrition.

[52] As well, the fact that after H.V. left her room C.E. remained in her bed for some time until confronted by Mr. Barry, lends some support to C.E.'s claim that he and H.V. had been engaged in consensual sexual activity and he was expecting her to return.

[53] It does not however, come down to whose evidence I prefer. A criminal trial is not a credibility contest and C.E. having testified, the principles in R. v. W.(D), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 302, must guide my analysis of the evidence.

[54] When I consider all of the evidence, I am left in reasonable doubt about whether H.V. was unconscious and unable to consent to C.E.'s sexual fondling and kissing while they were both in her bed. I accept that H.V. has no memory of C.E. commencing that phase of their sexual interaction, however, there are other events leading up to that moment for which H.V. similarly has no memory but during which she was displaying some motor and cognitive awareness.

[55] For instance, though she has no memory of this, it would appear on the record before me that H.V. walked two flights of stairs to her own room and there is no evidence that she required any assistance or was otherwise impaired in her ability to walk. Moreover, the timeline of events is far from clear and I am left with no sense of how much time elapsed between when H.V. arrived in her room, and when she got out of bed and fled to Anas' room. It might have been an hour, it might have been less than a minute.

[56] H.V.'s lack of memory seems more consistent with blackout state, than one of complete unconsciousness. It is therefore possible that H.V. consented in the manner described by C.E. (through her actions and words) but retains no recollection of having done so.

[57] Having been left with a reasonable doubt about the absence of consent, I must now consider whether H.V. lacked the capacity to consent. In this case, the only evidence from which I could infer a lack of capacity comes from H.V. While not required in law, corroborative and circumstantial evidence often support a Crown theory of incapacitation: see for instance R. v. Kishayinew, 2020 SCC 34, at para. 1; Al-Rawi, at paras. 69 and 70. Evidence of excessive alcohol consumption, obvious signs of impairment, and/or vomiting by the complainant, often assist the court in determining whether the complainant had the legal capacity to consent to sexual activity. There is no such evidence in the case before me.

[58] A lack of recall from a "blackout" is circumstantial evidence which might assist the Crown in establishing a lack of capacity, however in this case, it does not on its own prove that fact. Nor does the extent of H.V.'s alcohol consumption that night lead inescapably to a conclusion that H.V. lacked capacity to consent, even when partnered with her lack of recall.

[59] C.E. testified that he and H.V. drank the same amount, neither was "overly drunk" and H.V. was coherent the entire time. C.E.'s evidence about H.V.'s visible state of impairment was uncontradicted. In fact, Mr. Barry, who interacted with H.V. moments after she "woke up" and fled her room, made no mention of having noticed any signs of impairment, and in fact appeared to have had no difficulty understanding H.V.

Conclusion

[60] H.V.'s lack of memory makes it possible that both she and C.E. are telling the truth about what occurred at the relevant time. I am therefore left with a reasonable doubt on the issue of consent, whether it was given and if it was, whether it was vitiated by incapacity. The Crown having failed to prove the actus reus of sexual assault, I need not address the mens rea element and I find C.E. not guilty.

Released: November 25, 2020

Justice I. Jaffe