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judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of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, 162.1, 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 from time to time before the day on which this subparagraph comes into force, if the conduct alleged 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 victim of the right to make an application for the order; and

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

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

Ontario Court of Justice

Date: 2024 04 30 Court File No.: Toronto 4810-998- 23-40000458

Between:

HIS MAJESTY THE KING

— AND —

DWAYNE SCOTT

Before: Justice Christine Mainville

Heard on: April 22, 23 and 24, 2024 Reasons for Judgment released on: April 30, 2024

Counsel: Ovais Ahmad and Dylan Theriault-Harris.................................... counsel for the Crown Andrew Domacina.......................................................................... counsel for the accused

Mainville J.:

[1] The accused, Dwayne Scott, stood trial for sexually assaulting the complainant, C.L., at her apartment in the early morning hours of January 15, 2022. The result depends on whether the Crown can prove that C.L. did not consent, or was incapable of consenting, to sex with Mr. Scott.

[2] C.L. experienced an alcohol-induced blackout and has no recollection of the events in question. The sexual relations between herself and Mr. Scott on the night in question, however, are not in dispute.

[3] Mr. Scott testified and denied sexually assaulting C.L. He described a consensual sexual encounter between the two.

[4] A forensic toxicologist testified to what C.L.’s blood alcohol concentration (BAC) would have been at the relevant time – within a broad range – and to the potential effects of that.

[5] Evidence bearing on C.L.’s capacity to consent on the night in question was adduced in the form of video footage from various cameras in C.L.’s apartment building, where the alleged offence took place. In these videos, C.L. does not show any obvious signs of impairment, nor was it suggested that any can be observed.

[6] No third-party witnesses were called to attest to C.L.’s condition and consumption of alcohol that night.

[7] Based on the whole of the evidence, I am unable to find that Mr. Scott sexually assaulted C.L.

Overview of the Evidence

[8] C.L. and Mr. Scott vaguely knew each other from working at a downtown Toronto bar. On January 14, 2022, after attending that bar, they both separately went to an after-hours nightclub affiliated with the bar. Mr. Scott was working as a DJ that night at the nightclub, taking turns with another DJ. C.L. was there socializing with friends and colleagues, in particular people from the bar that is affiliated with the nightclub.

[9] C.L. recalled arriving at the nightclub somewhere around 12:15 to 12:30 am, after the bar had closed and her work shift had ended. She did not have anything to drink beforehand. She also had not eaten for the better part of the day. She recalled consuming a significant amount of alcohol at the nightclub but could not offer any precise evidence as to how much she drank. She recalled taking shots of tequila and vodka and drinking champagne later in the evening. While she provided an estimation when prompted to do so in examination-in-chief, she accepted in cross-examination that those numbers were guesses. Still, she certainly had a recollection of drinking and the defence does not dispute that she did consume alcohol that evening.

[10] Indeed, the forensic toxicologist, Ms. Tse, testified that based on the bodily samples taken from C.L. on the morning of January 15th, she was able to calculate C.L.’s projected BAC earlier in the night. She indicated that at around 3 am, this would have been in the range of 134-259 mg of alcohol per 100 mL of blood. Where C.L. was situated within that broad range is dependent on several factors including her rate of elimination. There is also a broad range of potential effects associated with BACs within this range, that will be particularly impacted by the person’s tolerance for alcohol.

[11] Due to having experienced a blackout resulting from the consumption of alcohol, C.L. has no recollection of leaving the club with Mr. Scott or of any sexual encounter with him.

[12] The last recollection of that night that stuck in her mind was being in the passenger seat of Mr. Scott’s car, and of him driving. They were joking and laughing. She also recalls drinking from a water bottle. She does not suggest that she was falling asleep or anything of the sort based on what she recalls of that moment in time. She also has a recollection of Mr. Scott being with her just inside the door to her apartment.

[13] After her memory was refreshed with her statement to the police, C.L. testified in cross-examination that she also had some recollection of showing Mr. Scott a bookcase inside her apartment that she was proud to have built.

[14] Her next memory was then of waking up in the morning in her bed. She was wearing a sweater she sometimes wears to bed but found it odd that she was wearing house pants she does not usually wear to sleep because she does not find them comfortable. She also thought it odd that she was neatly lying on her back and tucked in, whereas she usually sleeps on her side. At first, she could not find her phone and panicked, but then located the phone in a boot at the apartment entrance. She felt sore in her vaginal area.

[15] Not recalling what had happened the previous night but recalling that the last person she saw was Mr. Scott, she contacted him via his Instagram profile. She first messaged him and, receiving no response, she placed a first call just after 9 am and another just past 10 am.

[16] Shortly thereafter, Mr. Scott responded. After some back and forth about why she seemed persistent in trying to communicate with him without waiting for him to respond, she asked what happened last night and he responded that he had just dropped her off, and that they would talk later.

[17] C.L. thought this was suspicious, in particular given the use of the word “just”. She attended the hospital so that a sexual assault examination could be performed. She also took screenshots of the message exchange between herself and Mr. Scott.

[18] The sexual assault examination kit and subsequent analysis confirmed the presence of Mr. Scott’s DNA on C.L., and it is not disputed that he had sexual intercourse with her that night.

[19] Mr. Scott’s account however is that he had some brief interactions with C.L. at the nightclub while DJing there that night. They had had similar brief chit chats in the past, at the same bar and nightclub they went to that evening.

[20] Upon seeing her toward the end of the night, he offered C.L. a ride home knowing that she did not live far from where he resided. He did not know exactly where she resided, but they had previously discussed living in some proximity to each other, in North York. Mr. Scott testified that C.L. was sitting alone and on her phone when this exchange occurred. The club lights had come on as it was closing time. She accepted the ride offer and they went to his car which was parked on the street.

[21] Mr. Scott testified that he did not see C.L. drink that evening as they were not generally together, and she seemed perfectly fine to him when he saw her at the end of the night. She was doing something on her phone and was not sleeping or passed out or anything of the sort. He testified that he saw no indicia of impairment and did not believe C.L. to be drunk.

[22] Mr. Scott himself had had a few drinks over the course of the night but deemed himself able to drive. He stated that he ordered watered down mixed drinks to enable him to drive as he always does, and that he had anywhere from 2 to 6 over the course of the night, including earlier at the bar.

[23] Mr. Scott testified that in the elevator down at the nightclub, C.L. leaned toward him and briefly kissed him. In the car, she similarly made some advances towards him including putting her hand on his lap and kissing him. They were joking and laughing throughout the ride. She again seemed perfectly fine to him.

[24] Mr. Scott says that at some point during the drive to North York, he told her he needed to drop her off quickly in order to go home to pee. She then told him that he could come inside and pee at her place. Based on her demeanour towards him and this indication that he was invited to her apartment, at this time of night, Mr. Scott stopped at a gas station to purchase condoms in case something happened at her apartment. He did not tell her this was what he was purchasing – he just pulled into the gas station and went in and out after making the purchase.

[25] Mr. Scott then describes parking at C.L.’s building, being let into the building by her, having another flirtatious interaction in the elevator, and using the bathroom when he arrived in her apartment. When he exited, she showed him around the apartment, showing him her bookcase and a certificate hanging on the wall. She then invited him to her bedroom and let the dog out on her balcony, which was accessible from the bedroom. After the dog came back in, they sat on the edge of the bed where they again kissed and were being playful with each other.

[26] Mr. Scott says that C.L. then began undressing him and they cooperated in undressing each other. He describes an entirely consensual encounter that included him stopping to retrieve a condom from his pants. When he did so, he says that she asked him why he stopped. When he said he was getting a condom, she responded that that was a good idea. They then proceeded to have intercourse.

[27] Mr. Scott testified that the intercourse was passionate but not rough. At no time, according to him, did C.L. pass out or appear unconscious or otherwise not engaged to him. He described her actions throughout the intercourse including manipulating his genitalia to get him aroused and pulling him down toward her. She appeared to be consenting and he believed her to be consenting throughout.

[28] When he was about to ejaculate, he says he asked her where he should come, and she said on her. He removed the condom and did so, acknowledging that it went a bit everywhere around her lower stomach and vaginal area.

[29] According to Mr. Scott, both then got dressed, though he does not recall what C.L. put on. They went to the bathroom together to clean up, and he flushed the condom down the toilet. They then returned to her room and chatted for a bit at the edge of her bed. He then told her he had to get up in the morning for work so needed to leave to get some sleep. In court, he explained that he had scheduled himself in for a Skip the Dishes shift sometime around 11:30 that day. This was a side job he had at the time.

[30] According to Mr. Scott, C.L. asked him not to leave. After he explained why he needed to, she walked him to the apartment door, and he left.

[31] Video surveillance evidence of C.L.’s apartment building was introduced at trial. It shows that, just after 3 am, the accused and C.L. entered the lobby to her building. C.L. was leading the way, holding her phone, a sweater, and her purse in one hand. She engaged with the touchscreen building directory and buzzed herself in using the cell phone she had in hand. As they were buzzed in, she returned to the touchscreen to hang up the call, explaining in testimony that it rings very loudly. She and the accused then entered and made their way past security, to the elevator vestibule.

[32] Further video surveillance showed C.L. pressing the elevator button, entering the elevator with Mr. Scott, and engaging in conversation with him in the elevator. At one point, Mr. Scott briefly put his arm around C.L.’s shoulder. C.L. agreed that they then appeared to be laughing and joking around. They exited the elevator together.

[33] At no point is C.L. being assisted by Mr. Scott. She is at all times walking by herself and is not seen stumbling or being unsteady in any way, nor does she require any support from the walls or railings visible in the video surveillance. She is holding various items and does not drop any, and she handles her phone and the directory without any visible issues. No obvious signs of impairment can be observed.

[34] C.L. characterized herself as a heavy drinker. She indicated that when she gets drunk, she becomes friendly and may get clumsy. She agreed that she might have trouble maintaining her balance or walking a straight line, and that she can sometimes be unsteady on her feet and fall. She agreed that those effects would be amplified when very drunk. C.L. also acknowledged that based on the video footage, she did not look particularly clumsy or as though her motor skills were impaired at that time. She also agreed that despite her lack of recall, it was possible that she consented to Mr. Scott giving her a ride and invited him up to her apartment.

The Principles to be Applied

[35] Mr. Scott is presumed innocent. There is no obligation on him to do anything to establish his innocence. The presumption of innocence remains in place, unless and until the Crown has proven each essential element of these offences beyond a reasonable doubt.

[36] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough for me to believe that Mr. Scott is probably or likely guilty. Reasonable doubt requires more than mere probability. Although it cannot be described with mathematical precision, reasonable doubt is a high standard, consistent with its role as a safeguard against wrongful convictions. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

[37] In assessing the evidence of the witnesses in this case, I must consider their credibility and reliability – in other words, their honesty and their ability to accurately perceive and relate their observations.

[38] Testimony can be assessed by many factors, including (a) the plausibility of the evidence; (b) the presence of independent supporting or contradicting evidence; (c) the external and internal consistency of the evidence; (d) the “balance” of the evidence, meaning the witness’ apparent willingness to be fair and forthright without any personal motive or agenda; and to a limited extent, (e) the witness’ demeanour while testifying.

[39] I am entitled to believe all, part, or none of a witness’ evidence and may attach different weight to different parts of a witness’ testimony.

[40] In assessing the credibility and reliability of the witnesses, I do not simply choose one conflicting version of events over another. Instead, I must apply the framework set out by the Supreme Court of Canada in R. v. W.(D.), 1991 SCC 93, [1991] 1 S.C.R. 742, which underscores that a criminal trial is not a credibility contest and that any uncertainty must inure to the benefit of the accused. Even if I prefer the evidence of the complainant, or entirely reject the testimony of the accused, I can only find the accused guilty if I am convinced of his guilt beyond a reasonable doubt based on a thorough review of the evidence as a whole.

The Elements of the Offence

[41] To establish the offence of sexual assault, the Crown must prove that Mr. Scott intentionally touched C.L. in circumstances of a sexual nature without her consent, knowing that she did not consent to the touching.

[42] Consent involves C.L.’s state of mind at the relevant time. It means her conscious agreement to take part in every physical sexual act in the encounter. C.L.’s consent must have been given freely at the time each specific physical sexual act occurs. C.L. may revoke or limit her consent at any time.

[43] No consent is obtained if the complainant is either unconscious or incapable of consenting to the activity: Criminal Code, ss. 273.1(2)(a.1) and (b).

[44] Capacity to consent requires an operating mind at the time the sexual activity occurs. An operating mind denotes the ability to contemporaneously evaluate each and every sexual act. Capacity exists along a continuum, such that a state approaching unconsciousness will likely give rise to a lack of capacity, as would a state of extreme intoxication. The key is whether the complainant was capable of granting, revoking, or withholding consent: Brown et al, Prosecuting and Defending Sexual Offence Cases, Emond 2nd ed, pp. 413-14.

[45] As explained by the Supreme Court in R. v. G.F., 2021 SCC 20, at para. 57, for a complainant to be capable of providing subjective consent to sexual activity, they must be capable of understanding the physical act, that the act is sexual in nature, the specific identity of the partner, and that they have the choice to refuse to participate in the sexual activity. To establish that the complainant was incapable of subjective consent, the Crown must prove the absence of any one of these factors beyond a reasonable doubt: G.F., at para. 58.

[46] To prove the requisite intent, the accused must have either known that the complainant was not consenting to the sexual act in question or must have been reckless or willfully blind to the absence of consent. In other words, the Crown must prove either that the accused actually knew that she was not consenting; or that he knew there was a risk that she was not consenting to the sexual touching but went ahead anyway; or that he knew of indications that she was not consenting to the sexual touching, but deliberately chose to ignore those indications because he did not want to know the truth: R. v. J.A., 2011 SCC 28, at para. 24.

[47] The accused may raise the defence of honest but mistaken belief in consent if he believed that the complainant communicated consent to engage in the sexual activity, subject to the limits set out in ss. 273.1(2) and 273.2 Cr.C.: J.A., at para. 24.

General Credibility and Reliability Assessments

[48] C.L. came across as credible. While she was at times reluctant to agree with seemingly obvious statements put to her by the defence in cross-examination, she generally testified in a straightforward manner and in my assessment, tried to provide her best account of what transpired at the time.

[49] C.L.’s credibility is not the focus of this analysis. The reliability of her account is in issue to some extent, given her consumption of alcohol that night. But the larger issue is that C.L. is simply unable to assist the court with what transpired during key portions of the evening, given her lack of recall.

[50] I also generally found Mr. Scott to be credible. Many aspects of his account aligned with what C.L. could recall, and with the video surveillance. For instance, his evidence that he didn’t see her drinking that night aligns with hers that she does not generally recall interacting with him at the nightclub, although she recalls seeing him working as one of two DJs.

[51] I did however find some aspects of Mr. Scott’s evidence to not be credible. He at times proved overly cautious in answering questions such that he was not directly responsive to the questions asked. Like C.L., this led him to occasionally refuse to acknowledge the obvious – such as the fact that he wanted to sleep with C.L. when they were driving up to North York and he stopped to get condoms. Or the fact that he did not perceive any indicia of alcohol consumption including the smell of alcohol on C.L., despite being intimate with her and kissing her. While the video evidence supports his account that C.L. did not display any obvious signs of impairment, C.L. clearly had been drinking and he had a fair amount of experience with people being intoxicated. It seems implausible to me that he would not at least have perceived that she had been drinking, even if she was not exhibiting clear signs of impairment.

[52] While I am therefore unable to place complete reliance on his account of what transpired between him and C.L., I also cannot discount it. It certainly leaves me in a state of reasonable doubt. As explained below, the accused’s account (if believed or not rejected) is exculpatory in that it supports the position that C.L. subjectively consented or, if she didn’t, he reasonably and honestly believed her to be consenting.

[53] In any event, for the following reasons, I do not believe the Crown has discharged its burden to prove guilt beyond a reasonable doubt.

Findings of Fact and Analysis

[54] Based on the whole of the evidence adduced, I cannot find beyond a reasonable doubt that there was no consent or an incapacity to consent to the sexual activity on the night in question. Indeed, the evidence very much leaves open the possibility that C.L. did in fact consent, but simply does not recall. On the accused’s evidence – which I do not reject – it also leaves open the defence of honest but mistaken belief in consent.

Evidence of Intoxication and Memory Loss

[55] Certainly, the fact that C.L. appears to have experienced an alcohol-induced blackout suggests that she consumed a significant amount of alcohol that night.

[56] However, a blackout does not in and of itself amount to lack of capacity. The forensic toxicologist who testified in this case, Ms. Tse, explained that passing out is different from a memory blackout. A person who blacks out due to the consumption of alcohol is awake and aware but forming no recall. This is distinct from being passed out, where a person is not conscious and for that reason cannot recall anything.

[57] While incapacity to consent is not synonymous with unconsciousness, the point is that a person may be aware and have capacity, but not be forming a recollection of events. Justice Ducharme explained the significance of a blackout as follows in R. v. J.R., 2006 ONSC 22658, [2006] O.J. No. 2698 (S.C.J.) at para. 18:

Absent expert evidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannot testify as to what happened during a particular period. Indeed, Ms. Martin the toxicologist called by the Crown described a blackout as, “a complete loss of memory for a portion of time during a drinking episode.” In a sexual assault case this is particularly unfortunate since, as was noted in R. v. Esau (1997), 1997 SCC 312, 116 C.C.C. (3d) 289 at 296 (S.C.C.), ‘[t]he parties testimony is usually the most important evidence in sexual assault cases.’

[58] He continued:

In Esau at 297, Justice Major said of the complainant’s memory loss, “[a]ny number of things may have happened during the period in which she had no memory.” Thus, the only significance of memory loss, without more, is that the complainant cannot give direct evidence as to whether or not she consented to the sexual contact or whether or not she had the capacity to do so.

See also R. v. C.P., 2019 ONCA 85, aff’d 2021 SCC 19.

[59] The Crown does not dispute the distinction between a blackout and incapacity but argues that C.L.’s blackout is circumstantial evidence of incapacity. It argues that based on that and other circumstantial markers of incapacity, C.L.’s lack of capacity at the relevant time has been proven beyond a reasonable doubt. This, in its submission, includes the accused’s conduct after the encounter and C.L.’s after-the-fact reaction and pre-existing attitude toward the accused. I will return to these considerations below.

[60] I do not take issue with the submission that C.L.’s blackout, which I accept, is circumstantial evidence of her level of intoxication. But because a blackout is not synonymous with incapacity, I must also look at other indicators that relate to her capacity or lack of capacity resulting from her consumption of alcohol that night to determine the issue of consent.

[61] While also not dispositive, evidence of the complainant’s state immediately preceding the alleged incident is no doubt a significant indicator of capacity or lack of capacity. The evidence I have of this here is indicative of capacity.

[62] Indeed, the video surveillance provides the best independent evidence of C.L.’s state just after 3 am, as she and Mr. Scott head to her apartment where the incident occurred. Mr. Scott testified that he remained at C.L.’s apartment for around 30 minutes in total. I do not have any evidence to contradict that, whether from C.L. or the video surveillance. The video evidence thus shows C.L.’s state in close proximity to the events in question.

[63] This evidence shows that C.L. was awake and alert when she and Mr. Scott entered her apartment building together, after a more than 20-minute drive from downtown Toronto. C.L. accomplishes various tasks by herself. She engages with Mr. Scott and there is no indication that she is not aware of his presence or of who he is. She looks straight at Mr. Scott in the elevator and is joking with him. She is performing cognitive tasks and using her motor skills, however simple they may have been. No one is assisting her in these tasks. Nor does she rely on any physical supports. She in fact does not exhibit a single indicium of impairment. She also has sufficient awareness of her surroundings to return to the touchscreen in the lobby to hang up in order to avoid the ringing sound.

[64] Of course, the toxicologist’s evidence does not discount the possibility that C.L. was still very much intoxicated, and simply not showing typical signs of impairment. Not everyone does. Ms. Tse acknowledged that someone even at the higher end of the BAC range that she provided for C.L. could show limited and indeed no traditional signs of impairment.

[65] This is especially dependent on a person’s tolerance for alcohol, which can be built up over time. The toxicologist explained that the effects of alcohol are more pronounced for a light to moderate drinker, as compared to a more seasoned or practiced drinker. Someone with some experience and not new to alcohol consumption will exhibit greater tolerance and show fewer signs of impairment.

[66] Ms. Tse defined a heavy drinker as someone who routinely consumes either a few drinks every day, or many drinks on a weekly basis, and whose habits may be limited to 1 to 2 days a week. This aligns with C.L.’s evidence that, at the relevant time, she would drink to the point of getting drunk several times a week. C.L. herself accepted that she was a heavy drinker at the time.

[67] The fact that C.L. did not exhibit any clear indicia of impairment in the video footage therefore does not contradict her account of her consumption of alcohol and subsequent blackout.

[68] However, this does not tell me whether C.L. lacked capacity when she was in her apartment with Mr. Scott. If anything, it is more likely that she continued to be alert and aware once inside her apartment.

[69] Ms. Tse agreed that a person experiencing a blackout may be fully alert and aware, and may be interacting with their environment, appreciating situations or risks, and communicating completely coherently, but have no memory of these events the next day because they were not forming a memory at the relevant time. She confirmed that a blackout is not necessarily a sign of incapacity: the person can still interact with her environment and her sense of what is happening may or may not be altered – it depends on the person.

[70] She also explained that some people are more prone to memory impairment resulting from alcohol, whereas some may drink to the point of passing out and still have a recollection of preceding events.

[71] Certainly, there was evidence that C.L.’s BAC might have been at the higher end of the projected range. She was drinking on an empty stomach and consuming rapidly over a short period of time. In such circumstances, according to Ms. Tse, one would expect her BAC to rise more rapidly than if she had food in her stomach or had been drinking at a slower pace.

[72] The evidence, however, was that in such a case, the body can become overwhelmed, and the effects of the consumption may be more significant. Ms. Tse agreed that when someone is at an extreme level of intoxication, one would usually see impaired motor functions such as difficulty walking and slurred speech.

[73] Ultimately, various indicia of impairment may or may not accompany the BAC levels that C.L. may have had on January 15, 2022. Regardless of what exactly her BAC was, we know from the video surveillance that C.L. was alert and seemingly in significant control of her cognitive and motor skills just after 3 am that morning. We also know, based on C.L.’s recollection, that she at least showed Mr. Scott the bookcase she had built once inside her apartment.

[74] I also accept from the accused’s evidence that C.L. provided him with her address, as he would not otherwise have known how to get to her apartment. C.L. agreed that she must have. I also accept that upon nearing the building, the GPS could not locate it such that the car kept getting turned around, so C.L. had to direct him to it. C.L. indeed acknowledged that that had happened before, though she did not recall it happening with the accused.

[75] Mr. Scott also knew C.L.’s dog’s name – suggesting that this was also discussed given that, on C.L.’s evidence, they had had very limited discussions before that night. He also recalled discussing that they were both working the next night – that is why he knew he would see her that evening after he left her apartment. This aligns with C.L.’s evidence that she had a feeling the accused was going to come to the bar that night.

[76] C.L. also acknowledged that after buzzing herself and the accused into her building, she returned to the touchscreen directory to make sure she pressed hang up because the ringing is really loud. All of these are indicators of awareness and capacity.

[77] Ms. Tse also testified that blackouts are more likely to occur with persons who have a rapidly rising alcohol concentration – that is, when they drink quickly over a short period of time. In such a case, again, they might appear to be interacting with their environment and be able to carry on conversations, but they will have no recall or only a partial recall of those events.

[78] Here, I therefore cannot know whether C.L. simply formed no memory of events she was aware of and entirely lucid for at the time, or whether she was in a more advanced state of intoxication that could have negated her capacity to consent. On this evidence, I cannot infer where she was on that spectrum and if she could be said not to have capacity at the relevant time. For a similar analysis, see R. v. Meikle, 2011 ONSC 650.

[79] The Crown points to the Supreme Court’s comments in G.F., at para. 65, to submit that evidence of walking and talking is not dispositive of the issue of capacity. There, the Court stated:

The ultimate question of capacity must remain rooted in the subjective nature of consent. The question is not whether the complainant remembered the assault, retained her motor skills, or was able to walk or talk. The question is whether the complainant understood the sexual activity in question and that she could refuse to participate.

[80] While this is obviously an accurate statement of the law, the burden to prove incapacity remains on the Crown. Here as elsewhere in the law, circumstantial evidence is helpful and sometimes necessary for the Crown to prove its case even if not dispositive of the ultimate issue. It is necessary in this case because, as explained above, the complainant (due to her memory blackout) was not able to give any direct evidence of non-consent.

[81] The video evidence is important circumstantial evidence, and it does not assist the Crown in discharging its burden. It instead supports the defence contention that either the complainant had capacity to consent and did in fact consent, or that the accused honestly and reasonably believed her to be consenting. Ms. Tse specifically accounted for the possibility that someone in C.L.’s position could not only have been walking and talking, but also could have been fully aware of what they were doing.

[82] In this case, I do not have other witness evidence accounting for C.L.’s condition at the relevant time or anytime proximate to it.

[83] The Crown argued that aside from the blackout, there is additional circumstantial evidence of incapacity or lack of consent to consider. It points to evidence of consciousness of guilt, and to various aspects of C.L.’s reaction and intuitions the next day.

Evidence of Consciousness of Guilt

[84] The Crown relies on a false message Mr. Scott sent to C.L. after the events in question, and to his subsequent deletion of all his messages to her, as evidence of consciousness of guilt.

[85] The following exchange took place between Mr. Scott and C.L. on the morning of January 15th:

C.L.: Hey. I have a question

[9:07 am – outgoing call placed, not answered.]

[10:21 am – outgoing call placed, not answered.]

D.S.: [Surprised or shocked emoji]

U can’t wait for me to hit u back

What’s up

C.L.: Lmao no

So what happened last night?

D.S.: U blowing up my phone this early in the morning

C.L.: Cause I do not remember

D.S. I’ll tlk to u later

[Face palm emoji]

C.L. That’s all I’m checking for

It doesn’t need to big convo, but if you could just tell me what happened that’s all I’m looking for

D.S.: Oh damn

That’s what u couldn’t wait for! [Funny face emoji]

I jus dropped u home

[86] Both C.L. and Mr. Scott agree that they were texting at the same time such that some messages overlapped – in other words, one was still typing as the other one was, each completing their thought. The order in which each read the other’s messages is thus not exactly as it reads on paper. In particular, Mr. Scott had not yet read C.L.’s question asking what happened the previous night when he wrote “U blowing up my phone this early in the morning”. He explained that in his culture, it’s considered rude not to wait for a person to answer before following up with them again. He woke up to a message and two missed calls and was therefore somewhat irritated when he responded.

[87] In any event, Mr. Scott recognized that writing to C.L. that he had “just dropped her home” was a lie. He explained that he was confused by her messages asking him what had happened given that he could not understand why she would be asking that about events that had just taken place and for which she was fully aware. He therefore suspected that she was either joking – especially considering her “lmao” (laughing my ass off) message – or that it wasn’t her at the other end of the phone. A friend of his had had a similar experience where a boyfriend or spouse had taken the phone and messaged to investigate what their partner had done behind their back. He had never discussed partners with C.L. so thought it was possible that she had a boyfriend who was perhaps now investigating what had happened the previous night. It should be noted that Mr. Scott himself was married at this time and had just cheated on his wife.

[88] Mr. Scott reasoned that he did not want to get C.L. in trouble if it was not her messaging him. He knew he would see her in person that night at the bar, so he wrote that he “just dropped her home” and that he would talk to her later.

[89] I accept that if I were to find that the accused told a significant lie to C.L. in an apparent effort to avoid detection or to cover up what occurred, as the Crown urges me to find, this may constitute circumstantial evidence of a sexual assault – in the particular circumstances of this case, that C.L. did not have the capacity to consent: R. v. Trevor, 2006 BCCA 91, at para. 14. See also R. v. U.K., 2023 ONCA 587, at paras. 72-75 and 77.

[90] I must also be cautious, however, in approaching this type of after-the-fact conduct as being indicative of consciousness of guilt, when alternate explanations can reasonably account for the lie. In R. v. Calnen, 2019 SCC 6, at paras. 116-17, the Supreme Court of Canada cautioned against the potential dangers of after-the-fact conduct evidence:

This evidence may . . . appear more probative than it is, it may be inaccurate, and it may encourage speculation. After-the-fact conduct evidence may thus give rise to imprecise reasoning and may encourage decision makers to jump to questionable conclusions.

To meet the general concern that such evidence may be highly ambiguous and susceptible to jury error, the jury must be told to take into account alternative explanations for the accused’s behaviour. In this way, jurors are instructed to avoid a mistaken leap from such evidence to a conclusion of guilt when the conduct may be motivated by and attributable to panic, embarrassment, fear of a false accusation, or some other innocent explanation. [Citations omitted]

[91] Here, I find that there is very much an air of reality to the accused’s explanation for the messages. They are consistent with his version of events.

[92] On his account, there would be no reason for him to think that C.L. would have had no recollection of events having taken place just a few hours earlier. In such a state of mind, he would have naturally perceived C.L.’s insistence and messages to be odd. This could very well have prompted him to suspect that something was amiss, and that he would clarify that later in person when he could be assured of his interlocutor.

[93] In a sense, his explanation for the lie makes more sense than the one the Crown urges me to adopt. If Mr. Scott engaged in sexual intercourse with C.L. while she was incapacitated, why would he then suggest to her that he merely dropped her off, when he could not bank on her having no recall at all including of him entering her apartment with her? This is in a context where there is no question that C.L. was alert when she entered her apartment building with Mr. Scott and indeed showed him her bookcase inside the apartment. She was not passed out or asleep, or anything close to that. If she had not suffered a blackout in relation to any portion of time when he was with her in her home – something which he could hardly be assured of – he would be caught in a most suspicious lie.

[94] Moreover, Mr. Scott’s explanation accounts for the somewhat suspicious use of the word “just” in stating that he dropped her off – it makes some sense if in his mind, he is thinking that someone is investigating potential wrongdoing on C.L.’s part.

[95] In my assessment, Mr. Scott’s explanation for that message is more plausible than is the suggestion that he was attempting to cover up a sexual assault.

[96] I do find it more suspicious that he then proceeded to “unsend” his messages once C.L. gave him the cold shoulder at the bar that same evening – something that the Instagram application allows a user to do. Still, I cannot exclude as unreasonable Mr. Scott’s explanation that he was acting on his emotions after C.L. blew him off and unfollowed him on Instagram.

[97] In these circumstances, as in R. v. Le Goff, 2022 ONSC 609, at paras. 107 and 108, I cannot conclude that Mr. Scott’s after-the-fact conduct in lying and unsending messages to C.L. constitutes evidence of consciousness of guilt from which I can infer that he committed a sexual assault or from which I can draw any other culpable inference.

C.L.’s Reaction and Pre-Existing Attitude

[98] The Crown urges me to infer lack of capacity, or in the alternative, lack of consent, from C.L.’s testimony that she “didn’t want that” (in reference to her assumption of having been raped), and from her subsequent feelings and actions which the Crown argues are inconsistent with consent. More specifically, the Crown points to C.L. feeling shocked, anxious and panicked, messaging the accused to find out what happened, becoming upset when he did not tell her what happened, and going to the hospital for an examination.

[99] I accept that evidence of C.L.’s state of mind upon awakening in the morning and realizing that some sexual activity had occurred is admissible evidence and can be probative of her state earlier in the night: R. v. F.B.P., 2019 ONCA 157, at paras. 7-8.

[100] However, in this case, C.L. investigated and indicated that she went to the hospital out of an abundance of caution because she did not know what had happened. Her feelings and actions do not tell me what in fact did happen. Experiencing a significant memory loss in C.L.’s circumstances could assuredly lead to feelings of anxiety and panic. It would also lead to a natural desire to investigate what in fact did happen, and to become upset when these efforts proved unsuccessful. And to then decide, out of an abundance of caution, to seek protection and get examined. Her feelings and actions are consistent with suffering a blackout, but beyond that do not greatly assist in establishing lack of capacity or lack of consent at the relevant time.

[101] Nor does the fact that C.L. felt out of place when she woke up – because she was neatly tucked in and lying on her back, whereas she usually sleeps on her side – have much probative value in the circumstances of this case. Or indeed the fact that C.L. woke up wearing pants she does not usually wear to bed and her phone was not where it usually is. C.L. herself indicated that the position in which she found herself when she awoke “just spoke to how she might’ve passed out”. But the impression she had, even if it was suggestive of passing out, does not tell me anything about when C.L. may have passed out. This could very well have occurred after Mr. Scott had already left her apartment.

[102] The Crown bears the burden of proving incapacity, not merely that C.L. was intoxicated and acted in ways that she may not have were it not for the disinhibition or loss of control that alcohol induces. As stated by the Superior Court in R. v. Tahan, 2022 ONSC 1103, at para. 130:

Only a high level of intoxication that deprives the complainant of an operating mind is sufficient to remove the capacity to consent to sexual activity. Drunkenness, alcohol-induced memory loss, disinhibition, or loss of self-control are not the equivalent of incapacity; a drunken consent is still a valid consent: R. v. Cedeno, 2005 ONCJ 91, at para. 18; R. v. J.W.M., [2004] O.J. No. 1295, at para. 55.

[103] I also accept that inferences about consent can properly be drawn from the complainant's pre-existing attitudes, such as how she felt about a particular person or type of sexual interaction and how that would have informed her actions in the normal course: see, for e.g., R. v. Garciacruz, 2015 ONCA 27, at paras. 29-30.

[104] In this case, however, the Crown did not lead evidence that C.L. would not have consented to having intercourse with Mr. Scott or in these circumstances had she been of sound mind. The Crown instead relies on an absence of evidence of C.L.’s interest in the accused, and on a statement C.L. made in cross-examination that, assuming she had been raped, she did not want that. Obviously, no one would. But this has no probative value in terms of elucidating whether this is indeed what happened. Self-evidently, an accused bears no burden of tendering evidence that the complainant was sexually attracted to him to raise a reasonable doubt. Such evidence would not usually even be admissible.

[105] Ultimately, I do not know what happened inside C.L.’s apartment during the night of January 15, 2022. But I accept that it is at least possible that the accused and C.L. were both aware and actively engaging in consensual sexual activity – and that C.L. simply has no recollection of it.

[106] Considering the evidence as a whole, including all of the circumstantial markers the Crown pointed to, I am neither satisfied that C.L. lacked capacity or that she did not consent to the sexual activity with Mr. Scott.

[107] Nor do I disbelieve the accused’s account, which at minimum serves to raise a reasonable doubt. Contrary to the Crown’s submissions seeking to micro-analyse the various sexual acts that would have been engaged in for indicia of non-consent, the accused’s description, which may well be accurate, was manifestly of a consensual sexual encounter.

[108] An acquittal will therefore follow.

Released: April 30, 2024 Signed: Justice C. Mainville