COURT FILE NO.: CR/19/70000170/0000 DATE: 20200525 ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:

HER MAJESTY THE QUEEN Ari Linds, for the Crown

• and -

VALLY MAWANGA Mark Rieger, for the Accused

HEARD: January 27, 28, 29, 30, 31; February 3, 4, 5, 6, 7, 10, 11, 12, 13, 14, and 18, 2020

Subject to any further Order by a Court of competent jurisdiction, an Order has been made in this proceeding directing that the identity of the complainant and any information that could disclose such identity shall not be published in any document or broadcast in any way, pursuant to s. 486.4(1) of the Criminal Code of Canada.

Forestell J.

REASONS FOR JUDGMENT

Overview

[1] Vally Mawanga is charged with one count of sexual assault. He elected trial by judge alone and pleaded not guilty to the charge. The trial proceeded before me over three weeks.

[2] The charge against Mr. Mawanga arises from a complaint by the complainant, O.T., that she had been sexually assaulted by Mr. Mawanga on August 5, 2017.

[3] O.T., who was visiting Toronto with three friends for Caribana, reported that she left her friends to find a washroom after they had been drinking at their car. She had almost no memory of events from the time shortly after leaving the car at around 3:00 p.m. until she “came to” in the apartment of Mr. Mawanga at around 9:30 pm. She had four memory fragments from the time period between 3:00 p.m. and 9:30 p.m. She recalled being in a Subway restaurant with a man she did not know. She recalled being in an Uber with the same man. She recalled being in the bedroom of the man and being pulled by her ankles toward him as he put on a condom and she said “no, no, I don’t want to”. She next recalled being handed her clothes, still in the bedroom of the man. It was at this point that she left the apartment of the man and used a neighbour’s phone to contact her friends.

[4] The accused, Mr. Mawanga, admits that he had sexual intercourse with the complainant on August 5, 2017 at his apartment. He testified that he met the complainant at around 5:00 p.m. near the Caribana parade. She was looking for a washroom and he assisted her. He then tried to help her find her way back to her friends and her car, without success. They went to a Subway restaurant together where he bought her a sandwich. They then took an Uber to his apartment at around 7:00 p.m. During the two hours they spent together before going to his apartment, Mr. Mawanga reported that they talked and touched. He testified that the complainant was an active participant in the touching and kissing that preceded the trip to his apartment. He testified that the complainant expressed consent to sexual intercourse before and during the sexual acts that occurred. He observed no signs of intoxication.

Issues

[5] The issues in this case are: (i) whether the Crown has proved beyond a reasonable doubt that the complainant did not consent; and, if not, (ii) whether the Crown has proved beyond a reasonable doubt that the complainant lacked the capacity to consent.

Summary of the Evidence

Background

[6] O.T. and her friend, Jameka Scott, travelled to Toronto on August 3, 2017 from Buffalo, N.Y with a friend of Ms. Scott’s, Shawn Perkiss, and his friend, Gerald Cozier. O.T. and Ms. Scott were both attending university in Buffalo at the time although they were on their summer break in August of 2017.

[7] The group stayed at a downtown hotel and attended parties on Thursday, August 3rd and Friday, August 4th. Although evidence was called relating to the activities of the group in the two days prior to the alleged offence and, in particular, in relation to the amount of alcohol O.T. consumed on those days, I will not summarize that evidence in detail. There was some inconsistency between the evidence of O.T. regarding her consumption and the evidence of Ms. Scott and Mr. Perkiss regarding O.T.’s consumption of alcohol on those days. Mr. Cozier had little recollection of the amount of alcohol consumed.

[8] Although there were some inconsistencies between O.T.’s testimony and that of her friends regarding her drinking during the two days leading up to August 5, 2017, I do not find that this undermines her credibility. O.T. would have little reason to make note of her alcohol consumption those nights. Similarly, her lack of recollection of dancing at the party on Friday night is not significant. She did recall that she enjoyed herself and that it was a “Foam Party” where she played in the foam. The evidence of the activities of O.T. during the two days before she encountered Mr. Mawanga is of little assistance in determining the issues in this trial.

[9] The evidence of any drinking pattern in the two days leading up to August 5, 2017 is not a sufficient basis to draw any conclusions about how much O.T. typically drinks or the typical outward signs of intoxication for O.T. As I will discuss below, the toxicologist, Dr. Eliot, gave evidence about the effects of alcohol on naïve drinkers as opposed to more experienced or moderate drinkers. The evidence before me is that O.T. had consumed alcohol prior to this incident, although rarely to excess. She was not a naïve drinker, but neither was she an experienced drinker. She testified that on one prior occasion she suffered memory loss when drinking. On that occasion, she drank to excess and left a message to someone without remembering that she had done so.

O.T.’s Memory of August 5, 2017

[10] O.T. testified that she and her three friends woke up on the morning of August 5, 2017, smoked some marijuana and went back to sleep. When they woke again at around 10:00 a.m., they got up and went for a meal and drinks at the Real Jerk restaurant at around 11:00 a.m. or 12:00 noon. They intended to go to the Caribana parade but were running late. They were joined at the meal by another friend. They finished the meal and travelled to the area of the parade by car. They stopped on the way to buy mix for the alcohol they intended to drink.

[11] They arrived and parked the car sometime around 2:00 or 2:30 p.m. The parking lot was near enough to the parade that they could hear the music, but they could not see the parade. The parking lot was near the Island Airport. One person in their group had purchased a large bottle of Hennessey Cognac. O.T. testified that she did not know the exact size of the bottle. The group drank in the car for about 20 to 25 minutes. O.T. testified that she had two drinks, each containing about a shot or a shot and a half of Hennessy mixed with Pepsi in a 16 oz. cup. O.T. did not remember how much of the bottle was consumed by the group. The others in the group reported that the bottle was empty when the group finished drinking before the parade. O.T. agreed that this was possible. She agreed that it was possible that the two drinks she consumed contained more than 1 to 1.5 oz of liquor.

[12] After drinking, O.T. was feeling the effects of the alcohol and described herself as feeling ‘tipsy’ rather than ‘drunk’. She testified that she was feeling the effects of the alcohol but was aware of her surroundings and what was going on around her.

[13] After drinking at the car, O.T. testified that the group started to make their way to the parade. She realized that she had forgotten something and went back to the car. Gerald Cozier went back with her. The rest of the group carried on to the parade. O.T. could not remember what she went to the car to retrieve. Ms. Scott testified that O.T. stayed at the car to use the bathroom closer to the car and Gerald Cozier stayed with her. Ms. Scott said the others in the group went towards the parade and intended to find a bathroom on the way. Gerald Cozier testified that O.T. told him that she wanted to talk to him about something personal and that they went to the car to talk while the others went to the parade. O.T. agreed that it was possible that this happened.

[14] O.T. remembered getting back to the car but did not remember getting into the car. She did not know if she drank more. O.T. did not remember how long she and Mr. Cozier were at the car.

[15] She recalled that she needed to use the washroom. She believed that there was a washroom near a playground in a brick building. She testified that she recalled being at the building but did not recall using the washroom. O.T. described the building for the first time at trial. At the preliminary inquiry she had not recalled any details about the structure. She had been shown a photograph of the washroom the day before her trial testimony during her interview with the Crown and the police officer. She testified that when the Crown showed her the photo of the building it jogged her memory.

[16] O.T. had no other memory of that day until about 9:30 p.m., except for limited fragments of memories. She recalled being in a Subway restaurant but did not recall entering the restaurant, leaving the restaurant or ordering anything. She did recall that it was still light outside. Her only memory was of being in line with a man standing behind her and then beside her. She identified the man as being the same man whose apartment she later woke up in — Mr. Mawanga. O.T. testified that did not know his name and did not believe that she had seen him before. She testified that she believed that she had a sandwich and ate a bit of it, but that she does not like Subway. She would not have chosen to go to Subway to eat. She believed that Mr. Mawanga purchased the sandwich for her.

[17] When asked if she remembered how she was feeling when she was at the Subway restaurant, O.T., in her police statement, said that she was feeling a “little out of it” but “not threatened in any way” because if she had been feeling threatened, she would have tried to get away. At trial, O.T. said that when she said she did not feel threatened she meant that she did not feel that her life was in danger.

[18] Her next memory is of being in a red four-door sedan. She remembered that it was still light out. She did not remember the driver and did not remember calling the car. She believed that the man from the Subway restaurant was still with her. She believed that she still had the sandwich. O.T. could not remember the trip in the car. She did not recall the route, any conversation in the car or how long the trip took. In describing how she felt at the time, O.T. said that she “did not feel out of the ordinary at that moment”, but in looking back that time, she remembered that she did not “feel normal”. O.T. did not remember the end of the trip.

[19] O.T.’s next memory after the trip in the car was being on Mr. Mawanga’s bed. She testified in her evidence-in-chief that she recalled being on the bed, lying on her back and that Mr. Mawanga pulled her by her ankles to the edge of the bed. She recalled that she said “No, no, I don’t want to”. She recalled that Mr. Mawanga was pulling on a condom. She testified that she was wearing a top but was not wearing her shorts or underwear. She believed that she said no twice. She described the packaging of the condom as being gold and blue. O.T. has no memory of the time that passed after she said “no” and was pulled to the edge of the bed by her ankles, until she woke up later to see Mr. Mawanga wearing red boxer shorts. He was handing O.T. her shorts and underwear. She recalled him asking her where her phone was.

[20] In cross-examination, O.T. testified that she was fully clothed and lying on the bed when Mr. Mawanga pulled her towards him, and she said “no”. In cross-examination, O.T. said that she recalled saying “no” and Mr. Mawanga putting on a condom and continuing. In her police statement, O.T. said she thought that she was lying on her stomach when she was pulled to the edge of the bed by Mr. Mawanga.

[21] O.T. agreed, in cross-examination, it was possible that during the time of her memory lapses that day she had met Mr. Mawanga and they had talked. It was put to her that she had told Mr. Mawanga that her parents were not together. She agreed that it was possible she had told him that. She stated that it is true her parents are not together. O.T. agreed it was possible that when she and Mr. Mawanga were in Subway, she told him that she did not like tomatoes. O.T. testified that it is true that she dislikes tomatoes.

[22] It was put to O.T. that it was possible she had kissed Mr. Mawanga, touched his penis and expressed a wish to have sexual intercourse prior to travelling with him in an Uber to his apartment. O.T. agreed that these things were possible. She did not agree that it was possible that the sexual intercourse in the apartment occurred with her consent. O.T. was certain that she did not consent and that she had expressed her lack of consent. She recalled doing so when she was pulled by Mr. Mawanga towards him on his bed.

Mr. Mawanga’s Account of his Interaction with O.T.

[23] Mr. Mawanga testified at his trial. He was 26 years-old at the time of trial and was 24 at the time of his arrest. He was studying and working at the time of his arrest.

[24] He said that he had gone to the Caribana parade alone. He had never attended the parade before. He moved to Toronto in 2015. He was not familiar with the area of the city near the Exhibition grounds where he went to view the parade. He arrived at the parade at around 3:00 or 3:30 p.m.

[25] At around 5:00 p.m., after the parade had finished, he walked back to the streetcar stop at which he had disembarked prior to the parade. Before going home, he sat and rested on a bench near the Toronto Music Garden. While he was sitting on the bench, he saw O.T. He said that he thought she looked as if she was desperate to use a bathroom. He asked her if everything was okay. She said, “No I am not okay”. He asked “What’s wrong? What has happened?” She answered that she needed to use the washroom. Mr. Mawanga could see some small buildings nearby and suggested that they could contain washrooms. He walked with her to the buildings which, as it turned out, did not contain washrooms. Mr. Mawanga noticed some small bushes nearby and suggested that she use the bushes. O.T. entered the bushes and Mr. Mawanga stood nearby.

[26] Mr. Mawanga stated that during this interaction, he did not observe O.T. to be slurring her words or stumbling. He noticed no signs of intoxication.

[27] After O.T. emerged from the bushes, Mr. Mawanga asked if she was okay and she said yes and thanked him. They introduced themselves. Mr. Mawanga asked if she was with others or on her own and O.T. told him that she was with friends but that they had lost each other. He asked if she had tried to call them and she explained that she did not have her phone with her. She said that she thought she had left her phone and purse in the car she had travelled in with her friends to the parade. Mr. Mawanga asked where they had parked. O.T. told him that it was an outdoor parking lot, but that she could not remember the location. He asked her to describe the car and she said it was a black jeep. O.T. told Mr. Mawanga that she was not from Toronto and that she was from the United States. Mr. Mawanga offered to help her look for the parking lot and the car.

[28] O.T. asked to use Mr. Mawanga’s phone to contact her friends. She told him her telephone number and he dialed the number. He was unable to call her phone because his phone plan did not permit him to call the United States. O.T. suggested that he try WhatsApp. Using WhatsApp, Mr. Mawanga tried to call O.T.’s phone, but there was no response. He believed that he called two to three times. He then sent a text message that said, “Hi”. After sending the message, they looked for the car and checked periodically to see if the message had been read.

[29] In cross-examination, it was suggested to Mr. Mawanga that he should have searched closer to the area of the parade. He testified that he assumed that O.T. had been separated from her friends near the area where he encountered her. As a result, he looked with her in that area. He was not familiar with the parking lots because he did not know the area and did not have a car. He did not receive a detailed description of the car from O.T. and assumed that she would recognize the parking lot or the car. He did not find it odd that O.T. gave limited information about the car and the location of the parking lot. He knew that she was not from Toronto and believed that this was why she was lost.

[30] Mr. Mawanga described in detail the area where he and O.T. walked to search for the car. They searched for about 30 to 40 minutes. As they looked for the car, they talked. O.T. told him about her studies, her family and her plans for the future. O.T. told Mr. Mawanga that her parents were divorced. Mr. Mawanga told O.T. about his background and studies. Mr. Mawanga stated that did not see any signs of impairment. They spoke in English although Mr. Mawanga’s first language is French. He stated that O.T. was walking and talking normally.

[31] After looking for the car for a period of time, they sat in some chairs and continued to talk. Mr. Mawanga testified that during the course of the conversation, O.T. asked if he had a girlfriend and he asked her if she had a boyfriend. He testified that they began holding hands as they sat and talked. At some point, O.T. rested her head on his shoulder.

[32] O.T. then said that she was thirsty. Mr. Mawanga went to the nearby Subway restaurant and bought her a bottle of water. He brought it back to her at the chairs in the park. They continued to talk. At some point, they took a photo together. Mr. Mawanga produced the photo which he had emailed to himself after his arrest on the charge. He had later lost his phone and did not locate the photo on his computer until two days before he testified. [1] The photo was taken at 6:36:49 on August 5, 2017. The photograph shows O.T. and Mr. Mawanga standing close together. O.T. has her hand covering her mouth. Mr. Mawanga testified that they were laughing at the time.

[33] A short time after the photograph was taken, Mr. Mawanga testified that he and O.T. went to the Subway restaurant together. While they were waiting in line, O.T. gave him a hug. She was facing him and put her arms around his chest. She was touching his chest and stomach with her nails while they stood in line. O.T. kissed him while they were in line waiting. First, she kissed his neck and then Mr. Mawanga kissed her forehead. After that, they kissed on the mouth.

[34] They ordered a sandwich in the restaurant. O.T. said that she did not want tomatoes. Mr. Mawanga asked why, and he believed that she said something about having an allergy to them. Mr. Mawanga paid for the food with his Visa card.

[35] After they got the food, they left the restaurant. Mr. Mawanga remembered that there was a parking lot behind the building north of the Subway restaurant. They went to check the parking lot for O.T.’s car. They did not find the car. Mr. Mawanga testified that O.T. seemed a little disappointed at not finding the car but that she was calm.

[36] Mr. Mawanga testified that after checking the parking lot, he and O.T. stood near the entrance of the Alliance Française centre. They kissed each other and hugged. O.T. pulled him towards her using his t-shirt. O.T. said that she liked Toronto and spoke of moving to Toronto. She asked if he would share an apartment with her. He agreed that this would be a good thing. During the hugging and kissing, O.T. touched his penis over his clothes. He touched her chest. This interaction lasted about 20 minutes. During this time, O.T. asked where Mr. Mawanga lived. He told her that his apartment was not far. O.T. asked if they could go to his place and said that she felt like having sex with him. She asked him to call an Uber or taxi.

[37] Mr. Mawanga called an Uber. A red SUV picked them up and drove them to Mr. Mawanga’s residence which was about 20 to 25 minutes away. In the Uber, there were two other women in addition to the driver, Mr. Mawanga and O.T. O. T. sat in the front with the driver. During the drive, they all talked about the parade. The two other women were dancers from the parade. Mr. Mawanga produced a screen shot of the record of the Uber trip from the area of lower Spadina to his residence on Munro Street. The record of the trip shows a time of 7:00 p.m.

[38] Mr. Mawanga also produced the record of his purchases of water and a sandwich at Subway. The transaction record shows the purchases as being made on August 8, 2017, but this was because he made the purchases on Saturday, August 5th, and Monday, August 7th was a holiday. Mr. Mawanga was arrested on the 6th of August and not released until the 9th. Therefore, he could not have made the purchases on August 8, 2017.

[39] Mr. Mawanga testified that when they arrived at his residence, he held the car door open for O.T. He believed that they held hands for some part of the walk from the car to the door of his residence. When they entered the apartment, they went up one flight of stairs to the main floor of the apartment and then up another flight of stairs to Mr. Mawanga’s bedroom. When they were going up to the bedroom, O.T. asked Mr. Mawanga if he had condoms and he said that he did.

[40] Mr. Mawanga testified that when they arrived in his bedroom, he went to a bag to get the condoms. While he was getting the condoms, O.T. was looking around his room. They were talking, but he could not remember what they talked about. He believed that O.T. put the Subway bag with her sandwich and the bottle of water on his desk.

[41] They began kissing again. While they were kissing, O.T. took off Mr. Mawanga’s hat and T-shirt. At about the same time, he took off O.T.’s top and bra. While they were still kissing, O.T. undid the belt and top button of Mr. Mawanga’s pants and touched his penis. He then removed his pants and underwear. He removed her clothes.

[42] When they were naked, he took a condom and opened it to put it on. O.T. was standing in front of him kissing him. She went on to the bed and lay on her back with her legs open. He followed her onto the bed. He got on top of her and had sexual intercourse with her. Mr. Mawanga recalled that they spoke during intercourse, but he could not remember exactly what was said. He recalled that they said things like “is it good?” He testified that O.T did not ever say, “No , no I don’t want to.”

[43] Mr. Mawanga testified that after intercourse, they lay on the bed and talked. O.T. had her head on Mr. Mawanga’s chest. He asked whether she liked the sex and whether it was good, and she said it was good. They spoke about who he lived with at his apartment and what he did. They spoke for some time. He showed her photos of his family. After some time passed, O.T. put her hand on Mr. Mawanga’s penis. They began to kiss and touch. Mr. Mawanga got another condom and put it on. He lay on his back on the bed and O.T. got on top of him. They had intercourse for a second time. Afterwards, they again lay in the bed and talked.

[44] At some point, O.T. looked out the window and saw that it was dark. Mr. Mawanga recalled that she asked how she would find her friends. He recalled that he could see that she was becoming a bit worried. Mr. Mawanga looked out of his window and saw his neighbour sitting outside. He suggested that they could go and ask to use the neighbour’s phone to call O.T.’s phone. He said that if they did not contact her friends that way, they could call a taxi or Uber and go to the hotel. By this time, O.T. had mentioned the name of the hotel to Mr. Mawanga.

[45] They put their clothes on and O.T. got the bag with her sandwich and the bottle of water. Mr. Mawanga brought a jacket for O.T. and they went down one flight of stairs to the living room area. Mr. Mawanga forgot something and went back upstairs. He testified that he believed that he forgot his key. O.T. continued down the next flight of stairs to go outside. Mr. Mawanga followed a few seconds later.

[46] Surveillance videos from outside Mr. Mawanga’s residence shows that Mr. Mawanga came down the stairs from the residence seconds after O.T.

[47] Mr. Mawanga testified that when he reached outside, he saw O.T. with the neighbour’s phone. O.T. appeared to dial the number and get no response the first time. She seemed a bit agitated. She called again and then appeared to get an answer. He heard her ask the person on the other end to come and pick her up. She said that she didn’t know where she was. She also said something like “it was as if I was absent”. The neighbour asked O.T. to give her the phone and she gave directions to the person to whom O.T. had been speaking.

[48] Mr. Mawanga said that after O.T. spoke with her friends on the phone, her demeanour seemed to change. She seemed more worried and impatient. She was not crying but sounded as if she might cry. He tried to reassure her.

[49] After the phone call, Mr. Mawanga suggested that they should wait at the corner so that her friends would see them. They began to walk to the corner and then returned to his address. He believed that they did this because O.T. wanted to go back and sit down. She sat on the steps and Mr. Mawanga stood facing her and then crouched facing her. At one point he went inside the house. He did not remember why he went inside. He went in a second time as well. On the surveillance video, it appears that after Mr. Mawanga came out of the building for the second time, he handed something to O.T. He recalled that he gave her his phone.

[50] About 27 minutes after they left the house, they walked down the street to wait for O.T.’s friends. She seemed eager to leave. She walked ahead of Mr. Mawanga. On the video, he appeared to have his phone to his ear and testified that he believed that he was on a call.

[51] A few minutes later, O.T.’s friends, Ms. Scott and Mr. Cozier, arrived. At this point, O.T. began to cry. Her friends got out of the car and they hugged and got back in the car. Mr. Mawanga did not recall any interaction with Ms. Scott but remembered talking to Mr. Cozier.

Statements of Mr. Mawanga

[52] Ms. Scott testified that when they picked up O.T. from the corner near Mr. Mawanga’s home, she thought that she asked Mr. Mawanga if O.T. had been in his house and that he said yes. She did not remember any further conversation. She immediately got in the back seat with O.T. and comforted her while Gerald Cozier spoke to Mr. Mawanga. Ms. Scott testified that if Mr. Mawanga said why O.T. was in his house, Ms. Scott blocked him out and did not listen. She recalled that Mr. Cozier may have been yelling.

[53] Mr. Cozier testified that he tried to have a conversation with Mr. Mawanga when they picked up O.T. but Ms. Scott was saying “pull off, pull off”. Mr. Cozier testified that Mr. Mawanga tried to give his name and contact information. Mr. Cozier testified that Mr. Mawanga seemed to be cooperating and trying to give information. Mr. Cozier testified that Mr. Mawanga gave the name of “Vally”.

[54] In examination-in-chief, Mr. Cozier testified that Mr. Mawanga said something like, “I found her wandering around somewhere” or, “I found her drunk, wandering the streets”. He did not remember the exact words spoken by Mr. Mawanga. Mr. Cozier recalled that Mr. Mawanga spoke with an accent and Mr. Cozier had some difficulty understanding him. He was not sure if it was the language issue or the fact that Mr. Cozier was rattled that caused the difficulty in understanding. In cross-examination, he testified that the gist of what Mr. Mawanga said was that he had found her wandering around somewhere. Mr. Mawanga was trying to provide details of how they encountered each other. Mr. Cozier agreed that he had difficulty testifying to precisely what Mr. Mawanga said to him because at the time, he was rushed, Ms. Scott was speaking, and Mr. Mawanga had an accent. It was suggested to Mr. Cozier that Mr. Mawanga did not say that O.T. was drunk. Mr. Cozier agreed that the suggestion could be true because he did not remember word for word what Mr. Mawanga said.

[55] Later, when they had returned to the hotel, Ms. Scott, Mr. Cozier and Mr. Perkiss all observed O.T. to be extremely upset and distraught. Mr. Perkiss testified that after O.T. was back at the hotel on the night of the 5th of August, Ms. Scott showed him the WhatsApp message from Mr. Mawanga which showed Mr. Mawanga’s number. Mr. Perkiss called Mr. Mawanga’s number. He testified that he asked Mr. Mawanga why O.T. was in the state she was in. Mr. Perkiss testified that Mr. Mawanga said that he came across her and she seemed pretty intoxicated. She seemed like she needed to go to the washroom and get cleaned up. Mr. Perkiss recalled that he then said to Mr. Mawanga that they had his number and picture and that they would be sending them to the police. Mr. Perkiss testified that he (Mr. Perkiss) did most of the talking during the call. He described the conversation as one-sided and said that he did not give Mr. Mawanga much opportunity to speak.

[56] Mr. Perkiss noted that Mr. Mawanga spoke with an accent and agreed that Mr. Mawanga may have asked him to speak more slowly because English was not his first language. In cross-examination, Mr. Perkiss agreed that he could be mistaken about what Mr. Mawanga said. He agreed that it was possible that Mr. Mawanga said that he met O.T. in the park and helped her to find a washroom. In cross-examination, Mr. Perkiss said that he disregarded anything that Mr. Mawanga told him.

[57] Ms. Scott was present when Shawn Perkiss called Mr. Mawanga and she recalled Mr. Perkiss yelling at Mr. Mawanga over the phone.

[58] Mr. Mawanga denied ever saying that O.T. was drunk. He believed that he told Mr. Cozier that he met O.T. at the park and that she was looking for them. He also believed he said that she was looking for a washroom and that afterwards, they went to his place to spend some time. Mr. Mawanga testified that he gave Mr. Cozier his telephone number and name. Mr. Cozier gave Mr. Mawanga his name and number. Mr. Mawanga forgot Mr. Cozier’s name, but put the number in his phone as “O.’s friend”.

[59] Later, Mr. Mawanga received a call from a man who he now knows was Shawn Perkiss. Mr. Perkiss was very angry. He asked, “Are you Vally?”, and then yelled and swore at Mr. Mawanga. Mr. Mawanga had difficulty following what Mr. Perkiss was saying and asked him to speak more slowly. Mr. Perkiss asked him what happened that day. Mr. Mawanga said that he told Mr. Perkiss, he met O.T. in the park. Mr. Mawanga testified that Mr. Perkiss was not allowing him to finish his sentences. He was shouting at Mr. Mawanga. The call did not last any more than three minutes. Mr. Mawanga denied saying that O.T. was drunk.

Evidence of O.T.’s alcohol consumption and level of Intoxication

[60] O.T.’s friend, Jameka Scott, testified that on the morning of August 5, 2017, she, O.T., Gerald Cozier, and Shawn Perkiss all went to the Real Jerk for brunch. She did not remember if they smoked marijuana in the morning.

[61] At the Real Jerk, Ms. Scott believed that all of them drank but she could not remember what each person ordered. After brunch they went to the parade. They arrived and parked sometime after 2:00 p.m. She recalled everyone drinking Hennessy mixed with Pepsi. She did not remember the size of the bottle but did remember it was not small. They drank for about 20 to 25 minutes. She believed that the bottle was empty when they finished drinking. Ms. Scott could not say how much O.T. drank. After drinking the Hennessy, Ms. Scott said that she was feeling fine but felt a buzz and knew that she would probably feel drunk later on. By the time she got to the parade she felt drunk.

[62] Ms. Scott testified that after drinking in the car, she and Shawn Perkiss and Shawn’s friend went towards the parade and to find a bathroom, but O.T. chose to go to the bathroom near the parking lot. Ms. Scott last saw O.T. around the time that O.T. said that she wanted to go to the bathroom. O.T. did not seem drunk. She seemed very happy. Ms. Scott testified that she did not see O.T. walking. Ms. Scott next heard from O.T. when she got a telephone call from her at around 9:30 p.m. that night. In the conversation on the telephone and when Ms. Scott and Mr. Cozier picked her up, O.T. seemed upset and afraid. She did not seem intoxicated.

[63] Shawn Perkiss testified that on the 5th of August, the group of four went to the Real Jerk for brunch. He could not remember if they drank. They met with a friend of his at the Real Jerk and she accompanied them to the parade. They arrived at the parking lot near the parade at about 2:00 p.m. They drank Hennessy for about 15 to 20 minutes. It was a 1.75 litre bottle or, 60 ounces. All five individuals drank the cognac. They had cups and Mr. Perkiss recalled that they mixed the cognac with cranberry juice. Mr. Perkiss drank about three cups containing about one to two shots per cup. Mr. Perkiss testified that when he refers to “shots” he was just “eyeballing” the amount and not measuring. Mr. Perkiss recalled Gerald Cozier having about the same amount. He believed that O.T. drank less, but he did not know how much each of the three women drank. The bottle was empty when they finished drinking.

[64] After drinking, they all left the car together. Mr. Perkiss, Ms. Scott and Mr. Perkiss’ friend, Tyesha, stopped at the bathroom on the way to the parade. They noticed that Gerald Cozier and O.T. were no longer behind them. They continued on to the parade.

[65] Mr. Perkiss testified that he was not feeling the effects of the alcohol when he was walking to the parade but that he felt the effects later. He recalled that he was not stumbling or slurring his words and did not see Ms. Scott or Tyesha slurring or stumbling. When he last saw O.T as they left the car after drinking, he did not think that O.T. was drunk or intoxicated.

[66] Gerald Cozier testified that on August 5, 2017 the group went for brunch and had drinks with brunch. They later drank Hennessy in the parking lot near the parade. He did not remember the size of the bottle of Hennessy but thought it was a fairly large bottle and likely 1.75 litres. The bottle was empty when the group finished drinking. They drank for about 20 minutes. Mr. Cozier had three drinks. They were ‘free pouring’ and he did not know how much alcohol was in each drink. He did not know how much Ms. Scott, Tyesha or O.T. drank. He thought that Shawn had two drinks.

[67] Mr. Cozier described his state as “inebriated but not totally”.

[68] Mr. Cozier recalled that the whole group left the car to go to the parade. On the way to the parade, O.T. said that she wanted to go back to the car to talk to him about something. Mr. Cozier went back with her because he had keys to the car and a phone. He believed that O.T. also had her phone with her at that point.

[69] At the car, they hung out for a while. They were talking and flirting. Mr. Cozier then got a call from someone. O.T. said that she had to go to the bathroom. She walked towards the rear of the parking lot, in the direction of the bathrooms.

[70] Mr. Cozier testified that at the point when they were at the car, O.T. was kind of chatty but other than that he did not notice anything about her speech or her gait. He felt that she was a little intoxicated. He based this conclusion by comparing her demeanour on August 5th to her demeanour the previous night at a party when she had been drinking and became very social.

[71] Mr. Cozier finished his telephone call, waited about two minutes and then walked to the bathroom to look for O.T. He stood for a while outside the bathroom and did not see O.T. He then tried to call Ms. Scott but had difficulty getting through. He later met up with the rest of the group and told them that he had become separated from O.T. They watched the parade. When they returned to the car, they saw that O.T.’s phone and other things were in the car. They drove around the area a bit and then went back to the hotel. Later, Mr. Cozier and Ms. Scott went back to the area of the parade to look for O.T. They received a phone call from O.T. on O.T.’s phone and went to pick her up. Mr. Cozier testified that when they picked her up, O.T. did not seem intoxicated at all.

Toxicology Evidence

[72] Dr. Marie Elliot testified and was qualified to give expert opinion evidence in the area of the absorption, distribution and elimination of alcohol, drugs and poisons in the human body and the analysis of alcohol, drugs and poisons in the human body. She was also qualified to offer opinion evidence on the effects of alcohol, drugs and poisons on the human body.

[73] Dr. Elliot testified that the samples of blood and urine taken from O.T. at 3:40 a.m. and 3:55 a.m. on August 6, 2017 showed traces of tetrahydrocannabinol (“THC”) in the blood and urine that was consistent with the consumption of some marijuana in the days before. The urine also had traces of ethanol which was consistent with the consumption of alcohol. It was not possible, from the test results, to determine what the blood alcohol level was for the complainant some eight to nine hours prior to the blood and urine samples being taken.

[74] No other drugs were detected in the blood or urine samples of O.T.

[75] Dr. Elliot testified that if the complainant, who weighed 150 lbs., drank two drinks, each containing 1.5 ounces of cognac mixed with a non-alcoholic drink it was not likely that the complainant would lose consciousness.

[76] Dr. Elliot testified that the speed of consumption of alcohol can affect the blood alcohol concentration. The faster the consumption, the more rapidly the blood alcohol concentration will rise. A faster rate of consumption will result in greater intoxicating effects. If the complainant drank four ounces of cognac in 20 to 25 minutes, there may have been more of an impact on her level of intoxication.

[77] Dr. Elliot explained that the consumption of alcohol can cause confusion, disorientation, slurring.

[78] Dr. Elliot explained that memory loss can result from alcohol consumption. She defined the term ‘blackout’ as meaning a period of time for which an individual has a loss of memory due to intoxication. During a “blackout” the person may engage in normal behaviour and conversation, but they cannot form a memory of the time period. The memory loss can be complete or partial.

[79] Dr. Elliot testified that blackouts are not predictable. There is no relationship between tolerance to alcohol and the occurrence of a blackout. Blackouts are not associated with a particular blood alcohol concentration. What is known is that blackouts are more commonly experienced by alcoholics, that a person who has had one blackout is more likely to experience another and that blackouts are more likely to occur at high blood alcohol concentrations. However, blackouts have been reported at 140 mg. of alcohol in 100 ml of blood . Blackouts are also more likely to occur when a person consumes alcohol in a short period of time.

[80] A person who has a blood alcohol concentration of 140 to 150 mg. of alcohol in 100 ml of blood may not show signs of gross impairment, depending on the person’s tolerance. Even if the person shows no signs of gross impairment that person could still experience a blackout.

[81] Elimination of alcohol from the body begins as soon as a person consumes the alcohol. A person would typically eliminate 10 to 20 mg of alcohol per 100 ml of blood every hour. If a person drinks quickly there may be a plateau when the blood alcohol concentration remains constant, but that would only last for a maximum of two hours before the blood alcohol concentration began to decline.

[82] For a woman who weighed 150 lbs., to reach a blood alcohol concentration of 150 mg. of alcohol in 100 ml of blood, she would have to drink at least six fluid ounces of cognac.

[83] Dr. Elliot testified that in addition to alcohol, drugs such as benzodiazepines or Gamma-hydroxybutyrate (“GHB”) can cause memory loss. There was no benzodiazepine detected in the blood or urine of the complainant. This type of drug remains in the blood and would have been detected if it had been consumed by the complainant in the 24 hours prior to her blood and urine samples being taken. GHB causes the same effects as alcohol and can cause memory loss. GHB is eliminated from the body within 12 hours or less after its consumption. If the complainant had consumed GHB between 3:00 p.m. and 9:30 p.m. on August 5th, it would not necessarily be present in the blood or urine at 3:40 or 3:50 a.m. the next day.

[84] Dr. Elliott testified that if you exclude chronic alcoholics, the main factor that is associated with a blackout is a rapid increase in blood alcohol concentration.

[85] Dr. Elliott testified that it is possible for outward signs of intoxication to peak and fade with the passage of time from the initial consumption of alcohol but that the memory loss could continue. Dr. Elliott testified that if a 150 lb. woman drank two drinks, each containing three ounces of cognac, within 20-25 minutes, she could suffer memory loss. It would be possible that outward signs of intoxication would have faded in the two hours after the person drank the alcohol, but that her memory loss could have continued.

[86] Dr. Elliot testified that if GHB is administered, the memory loss would start shortly after the administration of the drug. The memory loss would not be retrograde.

O.T.’s Emotional State after she left Mr. Mawanga’s Apartment

[87] O.T. recalled that after ‘waking up’ in the bedroom of the accused, she got dressed, went to the washroom and vomited and then left the residence. She walked down two flights of stairs to the front door. She had some difficulty with the lock but was able to open it. She did not know where she was. She had no phone or wallet. She asked a woman who was sitting on a porch across the street if she could use her phone. O.T. was carrying a bag containing the subway sandwich.

[88] The woman across the street, (Deborah Clarke-Smith), gave O. T. her phone to use. O.T. testified that Mr. Mawanga turned up two to three minutes later.

[89] O.T. used Ms. Clarke-Smith’s phone to call her own phone. At first no one answered but then Gerald Cozier called back about one minute later. O.T. spoke to him but did not know where she was. She gave the phone to Ms. Clarke-Smith to give the address.

[90] After giving the address., O.T. returned the phone and sat on the steps of the porch where Ms. Clark-Smith was sitting. O.T. testified that she was upset, and that Mr. Mawanga told her not to cry because people would think that he was a bad guy and had hurt her. He put his jacket on her. O. T. testified that she believed that she got up from the woman’s steps and began walking away. Mr. Mawanga kept trying to talk to her.

[91] O.T.’s friends, Jameki Scott and Gerald Cozier, arrived some time later. O.T testified that she got in the car and Jameki began comforting her while Gerald drove. They had O.T’s phone with them. On the phone was a message from Mr. Mawanga that said “hi”. The message had Mr. Mawanaga’s photo and phone number.

[92] During the car ride back to her hotel with Mr. Cozier and Ms. Scott, O.T. became increasingly distressed and was crying uncontrollably. After returning to her hotel with her friends, O.T. agreed to go to the hospital and to make a police report. She was taken to the hospital and a sexual assault kit was done. She later attended the police station.

[93] O.T. agreed that it was possible that Mr. Mawanga suggested that she try to borrow the phone of the neighbour.

[94] Deborah Clarke-Smith testified that she was on her porch with her friend at around 9:30 p.m. she saw the complainant come out of Mr. Mawanga’s residence and come down the stairs. Ms. Clarke-Smith recalled that she noticed that the woman seemed scared. She called over to the woman and asked if everything was alright. Ms. Clarke-Smith offered to lend the woman her phone. The woman came over and borrowed the phone. During the call, Ms. Smith heard her say, “Come and get me. Help me.”

[95] Ms. Clarke-Smith testified that she saw Mr. Mawanga come out of the building a couple of minutes after the woman. He came over to the woman and gave her a sweater and her purse. He tried to put his arm around her and she pushed him away. Ms. Clarke-Smith testified that after the woman used her phone, the woman was crying. Mr. Mawanga went inside and the woman “took off” and must have been running. Mr. Mawanga later came out and asked Ms. Clarke-Smith where the woman had gone.

[96] Ms. Clarke-Smith later got a call from a man who seemed upset and asked for her address. This was Shawn Perkiss. He gave Ms. Clarke-Smith’s contact information to the police after getting the telephone number from O.T.’s telephone.

[97] The video of Mr. Mawanga and O.T. leaving the apartment shows O.T. coming down the front steps and walking directly across the street towards Ms. Clarke-Smith’s address. It shows Mr. Mawanga following 18 seconds later. After what appears to be video of O.T. making a phone call, the two walked south and then crossed the street and walked back to Mr. Mawanga’s steps. They remained there together except when Mr. Mawanga went back into the residence and the complainant remained on the steps. They then walked across the street and south again with the complainant initially walking quickly ahead of Mr. Mawanga. The two then stood near a car on the street together and then continued out of view of the cameras.

[98] Ms. Clarke-Smith was shown the video in cross-examination. She testified that it seemed that the man followed the woman two minutes after the woman crossed the street and not 18 seconds. In re-examination, Ms. Clarke-Smith was asked if there were things she saw that were not on the video and she said that the area where the woman was first standing was not on the video.

[99] Gerald Cozier testified that he was driving around with Ms. Scott looking for O.T. when they received a call from O.T. on O.T.’s phone. He spoke to O.T. and so did Ms. Scott. O.T. said, “Hey – can you guys come and get me?” and then a lady got on the phone and tried to give them directions.

[100] Mr. Cozier testified that he and Ms. Scott drove to the address Ms. Clarke-Smith had given to them. It took about 15 minutes to get to the address. At the corner of the street, Mr. Cozier saw O.T. standing with a jacket around her shoulders and a man holding the jacket on her shoulders. When they pulled up, O.T. ran into the car. Mr. Cozier thought she looked scared, rattled, shaken up, confused. She said, “I want to go home.” At some point during the ride to the hotel she began to cry. When she got to the hotel she broke down. she was asking for her mom and asking to go home. They placed a call to her mother. After the call to her mother she seemed very, very scared. Mr. Cozier called 911.

Issues and Law

Elements of the Offence

[101] In R v. Ewanchuk, [1999] 1 S.C.R. 330, at para. 25, the Supreme Court delineated the elements of the actus reus of sexual assault:

The actus reus of sexual assault is established by the proof of three elements: (i) touching, (ii) the sexual nature of the contact, and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’s actions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had any mens rea with respect to the sexual nature of his or her behaviour.

[102] The mens rea for sexual assault requires the Crown to prove beyond a reasonable doubt that the accused intended to touch the complainant in a sexual manner and knew or was reckless or willfully blind to the complainant’s lack of consent. The first two elements of the actus reus of the offence are conceded. Mr. Mawanga admits sexual contact. The issues in this case are whether or not the Crown has proved beyond a reasonable doubt lack of consent or lack of capacity to consent.

Consent and Capacity to Consent

[103] Consent, as defined in s. 273.1(1) of the Criminal Code in August of 2017, is the “voluntary agreement of the complainant to engage in the sexual activity in question”. This means the conscious agreement of the complainant to engage in every sexual act in a particular encounter.

[104] Subsections 273.1(2)(b) and (c) of the Code provide that no consent is obtained where the complainant is incapable of consenting to the activity or where the complainant expresses by words or conduct a lack of agreement to engage in the activity.

[105] In R. v. J.A., 2011 SCC 28, [2011] S.C.J. No. 28, at para 4, McLachlin C.J., stated at para. 44 “the jurisprudence has consistently interpreted consent as requiring a conscious operating mind, capable of granting, revoking or withholding consent to each and every sexual act”.

[106] As Pardu J.A. explained in R. v. G.F., 2019 ONCA 493 at para. 38:

…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.

[107] At paragraph 37 of G.F., Pardu J.A. adopted the summary of the elements of incapacity set out by Beveridge J.A. in R. v. Al-Rawi saying:

37 In R. v. Al-Rawi, 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:

[60] 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] 1 S.C.R. 1220).

[61] 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.

[66] 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.

Analytical Approach where Consent and Capacity are in Issue

[108] In R. v. Hutchinson, 2014 SCC 19, at para. 4 the Supreme Court described a two-step approach to proof of lack of consent where both consent and capacity are in issue:

The Criminal Code sets out a two-step process for analyzing consent to sexual activity. The first step is to determine whether the evidence establishes that there was no voluntary agreement of the complainant to engage in the sexual activity in question under s.273.1(1). If the complainant consented, or her conduct raises a reasonable doubt about the lack of consent, the second step is to consider whether there are any circumstances that may vitiate her apparent consent. Section 265(3) defines a series of conditions under which the law deems an absence of consent, notwithstanding the complainant’s ostensible consent or participation. Section 273.1(2) also lists conditions under which no consent is obtained. For example, no consent is obtained in circumstances of coercion, fraud, or abuse of trust or authority.

Burden of Proof

[109] The onus is on the Crown to prove the essential elements of the offence beyond a reasonable doubt. Mr. Mawanga testified in this trial. Even if I do not believe the version of events offered by the accused, if it raises a reasonable doubt, I must acquit him. Even if I reject his evidence and his evidence does not raise a reasonable doubt, I can only convict Mr. Mawanga if I am satisfied beyond a reasonable doubt of his guilt. (R. v. W.(D)., [1991] 1 S.C.R. 742.)

[110] Where, as in this case, there are two different versions of events, one inculpatory and one exculpatory, as the trier of fact, I must not simply choose which version I prefer. (R. v. Nimchuk (1977), 33 C.C.C.(2d) 209 (Ont. C.A.) at para. 7)

[111] However, “a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence” may constitute a basis for the rejection of the evidence of an accused (R. v. J.J.R.D. (2006), 218 O.A.C. 37, at para. 53; R. v. R.A., 2017 ONCA 714, [2017] O.J. No. 4772 (C.A.), at para. 56.)

Credibility and Reliability

[112] In weighing the evidence of the witnesses, including Mr. Mawanga, I must assess the credibility and reliability of the witness’s evidence. I have considered the internal consistency of the evidence of the witnesses and its consistency with other evidence. I have considered the plausibility of the evidence.

[113] In assessing the credibility of the complainant, O.T., I have considered her demeanour after she left the apartment of the accused. The evidence of her emotional state is admissible as confirmation of her allegations. I also recognize that this evidence of demeanour must be treated with caution. (R. v. J.A.A., 2010 ONCA 491.)

Analysis

1. Has the Crown proved lack of consent beyond a reasonable doubt?

[114] I am not satisfied beyond a reasonable doubt that the complainant did not consent to the sexual activity.

[115] I find that the complainant was trying to be truthful. I do not, however, find her recollection of events to be reliable. I reach this conclusion after considering her evidence as a whole and in the context of all of the evidence.

[116] The complainant testified that it was possible she could have expressed consent to the activity before she was in the bedroom of the accused, but that she did not consent to the sexual act immediately prior to it occurring. While her evidence was consistent on this point, her evidence of the context changed. She told the police that she was lying on her stomach when the accused pulled her by the ankles and when she said “no”. She testified at trial that she was lying on her back. She testified in her evidence-in-chief that she was not wearing pants or underwear when she was pulled by the ankles and when she said ‘no’. In cross-examination she said that she was fully clothed.

[117] The complainant described going to the neighbour to borrow a phone after leaving the apartment and said that the accused came out two to three minutes later. She described going directly to the neighbour. The video of the complainant and the accused leaving the apartment shows that the accused came out and went to the neighbour only seconds after the complainant. The recollection of the complainant was not reliable with respect to the events at the apartment of the accused.

[118] I have considered the evidence of the emotional state of the complainant after she left the apartment of the accused. Ms. Clarke-Smith described her as petrified. The complainant’s friends described her as extremely afraid and upset. I accept that the complainant suffered a loss of memory from about 3:00 p.m. until about 9:30 p.m. except for the fragments of memories of being in a Subway restaurant, being in the Uber vehicle and being on the bed of the accused. I accept that her blackout state lifted just before she went out to borrow Ms. Clarke-Smith’s telephone. I find that in these circumstances, the emotional state of O.T. is equally consistent with finding herself undressed in a stranger’s apartment, separated from her friends in a strange city as it is with having been sexually assaulted.

[119] I have considered the evidence of Mr. Mawanga with respect to the consent of complainant. Mr. Mawanga’s evidence was internally consistent and it was consistent with the other evidence. I accept Mr. Mawanga’s evidence.

[120] I find that the complainant, during the blackout period, was walking and talking and behaving normally. Her friends all testified that she showed no obvious signs of intoxication when they last saw her shortly before 3:00 p.m., nor when they picked her up after 9:30 p.m. Mr. Mawanga’s evidence, that he had a normal interaction with the complainant from 5:00 p.m. until 7:00 or 7:30 p.m. is consistent with the evidence of the complainant’s friends — that she seemed fine when they last saw her. I consider this evidence, not as evidence of consent, but as evidence that is consistent with the account of Mr. Mawanga and that is relevant to the assessment of his credibility.

[121] Mr. Mawanga’s description of the progression from talking to handholding to kissing and touching is plausible. The timing of the events is consistent with his record of the Uber ride and the photograph that he took of himself and the complainant.

[122] The Crown argued that the failure of counsel for Mr. Mawanga to put the photograph to the complainant was a violation of the rule in Brown and Dunne. I do not agree. It was put to the complainant that she talked, held hands with and kissed Mr. Mawanga during the time that she was with him. It was put to her that she was attracted to him and enjoyed her interaction with him. The complainant had no memory of the time period and answered that these things were possible. The photograph, like the evidence of Mr. Mawanga, is evidence of a time period for which the complainant has no memory. It was not necessary to put every detail of the afternoon to the complainant in light of her answers to the questions put. I reach a similar conclusion with respect to the conversation that the accused described immediately preceding the Uber ride in which the complainant spoke of moving to Toronto. The conversation was not put to her in detail, but it was not necessary to do so. The complainant was clear and consistent in her evidence that she did not remember the events during that time period.

[123] In assessing the evidence of Mr. Mawanga, I have also considered the evidence of his alleged statements to Mr. Cozier and to Mr. Perkiss. I am not satisfied that Mr. Mawanga said to Mr. Cozier that he found O.T. wandering “drunk” or, that he told Mr. Perkiss that O.T. was drunk. Mr. Cozier testified that he was distracted when he spoke to Mr. Mawanga, that Mr. Mawanga spoke with an accent and that he had difficulty understanding him. Mr. Perkiss testified that he did not give Mr. Mawanga an opportunity to speak and that he ignored what Mr. Mawanga was saying. Because I cannot be satisfied that Mr. Mawanga said what is alleged, there is no impact on his credibility from the alleged statements.

[124] I accept the evidence of Mr. Mawanga as to the actions and words of the complainant prior to and during each sexual act and I find that the Crown has not proved lack of consent beyond a reasonable doubt.

2. Has the Crown proved lack of capacity to consent beyond a reasonable doubt?

[125] I find that the Crown has not proved lack of capacity to consent beyond a reasonable doubt.

[126] The inference that Mr. Mawanga administered a drug to O.T. is not available on the evidence. The Crown expert, Dr. Eliot, testified that if a drug such as GHB was administered, the memory loss would follow the administration of the drug. O.T.’s memory loss began shortly after she left Mr. Cozier. The only available inference is that the memory loss was the result of the alcohol consumed by O.T. with her friends.

[127] Although I can and do infer that O.T.’s memory loss was caused by her consumption of alcohol, I cannot infer that O.T.’s alcohol consumption rendered her incapable of consenting to the sexual acts. The evidence of the expert was that memory loss does not necessarily mean that the person is incapacitated. Memory loss may subsist beyond the other effects of the alcohol. Persons who suffer memory loss from alcohol consumption can function and make decisions while not recording the events and thought processes. The complainant consumed enough alcohol to cause a memory loss but she was not incapable of consenting.

[128] For the reasons set out above, I accept the evidence of Mr. Mawanga. I find his account of events to be consistent with other evidence and to be plausible. I accept that O.T. displayed no obvious signs of impairment during her interaction with Mr. Mawanga.

[129] The evidence in this case supports the inference that O.T. communicated with and interacted with Mr. Mawanga for over two hours before they returned to his apartment and had sex. She asked for water, ordered food, asked questions about Mr. Mawanga and conveyed information about herself. O.T. asked to go to Mr. Mawanga’s residence and expressed her wish to have sex. She asked Mr. Mawanga if he had condoms. All of this conduct supports the inference that O.T. had an operating mind capable of appreciating nature and quality of the sexual activity, knowing the identity of the person wishing to engage in the sexual activity and understanding she could agree or decline to engage in, or to continue, the sexual activity.

Conclusion

[130] For these reasons, I find that the Crown has not proven lack of consent or lack of capacity to consent beyond a reasonable doubt. I find Mr. Mawanga not guilty.

Forestell J.

Released: May 25, 2020

Footnote

[1] The photograph was not shown to O.T. whose testimony was complete by the time that Mr. Mawanga located the photograph.