COURT FILE NO.: CR-21-0054-0000 DATE: 2024 01 12

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: His Majesty the King AND: Z.D.

BEFORE: Coats J.

COUNSEL: A. Al Rohani, for the Crown H. Bassi, for Defence

HEARD: June 19, 20, 21, 22, 23, 2023, September 1, 2023, and October 31, 2023

PUBLICATION RESTRICTION NOTICE By court order made under subsection 486.4(1) of the Criminal Code, information that may identify the person described in this judgment as the complainant may not be published, broadcasted or transmitted in any manner. This judgment complies with this restriction so that it can be published.

APPLICATION ENDORSEMENT

REASONS FOR DECISION

A: Overview:

[1] The accused, Z.D. is charged with one count of sexual assault contrary to section 271 of the Criminal Code, R.S.C. 1985, C.C-46 and one count of being a party to a sexual assault contrary to section 272(1)(d) of the Criminal Code. He pled not guilty to the charges. The offences are alleged to have happened between August 17, 2019 and August 18, 2019.

[2] The Crown called evidence of 5 witnesses, including the complainant A.K. Z.D. testified in his own defence.

The Law:

[3] Z.D. is presumed innocent. It is the Crown’s burden to satisfy this court of his guilt beyond a reasonable doubt.

[4] To secure a conviction for sexual assault, the Crown must prove the following essential elements beyond a reasonable doubt:

i) That Z.D. intentionally applied force to A.K.; ii) That A.K. did not consent to the application of this force by Z.D.; iii) That Z.D. knew that A.K. did not consent or that he was reckless or willfully blind as to whether she consented; and iv) That the force applied by Z.D. was of a sexual nature.

[5] Further, with respect to the s. 272(1)(d) offence, the added element is that Z.D. was a party to the offence with at least one other person.

[6] In this case, there is no dispute as to the first and fourth elements. Z.D. acknowledged that he had sexual activity with A.K. The only issues are whether A.K. did not consent, whether A.K. did or did not have capacity to consent, and whether Z.D. knew she did or did not consent or was reckless or willfully blind as to whether she consented. Z.D.’s identity, the date and jurisdiction are not an issue.

[7] The two charges are linked. If Z.D. is found not guilty of one, he is not guilty of the other and vice versa. The alleged offences were part of a continuing event alleged to have occurred one night, one right after the other or at the same time.

[8] The Crown must prove the actus reus beyond a reasonable doubt: that Z.D. touched A.K. and that the touching was of a sexual nature and that A.K. did not consent. The first two are determined objectively. Consent for the actus reus, however, is determined by reference to A.K.’s state of mind. The question is, did A.K., in her own mind, provide the voluntary agreement to enter into the sexual activity in question? (R. v. G.F., 2021 SCC 20, 163 O.R. (3d) 480, at para. 32).

[9] As set out at paras. 56-58 of G.F., under s. 273.1(2)(a.1) there can be no consent where the complainant is unconscious. Under s. 273.1(2)(b), there can be no consent where the complainant is incapable of consenting for any other reason. If there is no capacity to consent, then the complainant lacks the operating mind to provide voluntary consent.

[10] The Crown must also prove the mens rea beyond a reasonable doubt. The mens rea of sexual assault is satisfied when the accused intended to touch the complainant and has knowledge that the complainant was not consenting or was willfully blind to the absence of consent (para. 35 of G.F.).

[11] As set out in R. v. H.W., 2022 ONCA 15, 160 O.R. (3d) 81, at para. 46, the term “consent” when used as an element of the actus reus involves what is going on in the mind of the complainant. The term when used in relation to the mens rea concerns itself with the mind of the accused. An analysis of mens rea typically occurs after the court concludes that the actus reus of the offence has been committed.

[12] The first two issues are 1.) whether the Crown has proven beyond a reasonable doubt that A.K. did not provide consent to Z.D. to engage in the sexual act, which is to be looked at subjectively from her perspective, and/or 2.) whether the Crown has proven beyond a reasonable doubt that A.K. did not have capacity to consent. If I find that the Crown has not proven these elements beyond a reasonable doubt, there is no need for me to go further and consider the mens rea.

[13] As Z.D. testified, the court must be guided by the decision in R. v. W.D., [1991] 1 SCR 742.

[14] The trial judge must instruct themselves in cases involving credibility as follows:

i) If the judge believes the testimony of the accused, the judge must acquit; ii) If the judge does not know whether to believe the accused or a competing witness, the judge must acquit; iii) If the judge does not believe the testimony of the accused but is left with a reasonable doubt by it, the judge must acquit, and; iv) Even if the judge is not left in doubt by the evidence of the accused, the judge must ask themselves whether on the basis of the evidence the judge does accept, are you convinced beyond a reasonable doubt of the guilt of the accused.

Analysis

[15] Paragraph 71 of R v. Le Goff, 2022 ONSC 609 sets out the interplay between capacity to consent and consent as follows:

[71] In R. v. G. F., 2021 SCC 20, 459 D.L.R. (4th) 375, at paras. 4, 24, 52 – 53, the Supreme Court of Canada held that capacity to consent is a necessary (but not sufficient) precondition to a sexual assault complainant’s subjective consent. Consequently, where both capacity and consent are in issue, the trial judge is not required to consider these two requirements separately or in any particular order: G. F., at paras. 4, 24, 53. In this case, it makes sense to consider whether T. R. had the capacity to consent first. If I conclude that the Crown has proven beyond a reasonable doubt that T. R. did not have the capacity to consent at the time of the sexual activity, then there can be no question that she consented. This is because there can be no subjective and voluntary consent without the capacity to consent: s. 273.1(2)(b) of the Criminal Code; G. F., at paras. 53 – 58. In other words, if I conclude that the Crown has proven lack of capacity to consent beyond a reasonable doubt, T. R. cannot have consented, Mr. Le Goff must be convicted, and I need not move on to consider whether T. R. actually consented as a separate inquiry. It is only if I conclude that the Crown has not proven lack of capacity beyond a reasonable doubt that I then need to move on to consider whether the Crown has proven that T.R. did not subjectively and voluntarily consent beyond a reasonable doubt.

[16] A.K. testified in-chief that she does not remember any of the sexual activity in the vehicle until she woke up to Z.D. penetrating her vagina and M.H. with his penis near or in her mouth.

[17] In assessing capacity and consent in the absence of direct evidence as to A.K.’s subjective state of mind, I must consider all the evidence in the case.

[18] Paragraphs 72 and 73 of Le Goff summarize the law as follows:

[72] In assessing capacity and consent in the absence of direct evidence as to T. R.’s subjective state of mind at the relevant time, I must consider all of the evidence in the case, including circumstantial evidence: Al-Rawi, at paras. 69 – 74. In R. v. J. R., 2006 ONSC 22658, at paras. 18 – 20, Ducharme J. considered the effect of a sexual assault complainant’s memory loss. He held that memory loss on its own does not conclusively establish that the complainant did or did not consent, or that they were or were not capable of consenting. However, a complainant’s memory loss may be circumstantial evidence of the fact that the complainant did not consent, or that they were incapable of consenting, as follows:

. . . 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. . . . In R. v. Esau (1997), [1997] 2 SCR 779 … 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.

. . . In none of . . . [the] cases is a blackout or memory loss, without more, taken as proof of lack of consent or lack of capacity.

This does not mean that evidence of memory loss or a blackout is unimportant, irrelevant or necessarily lacking in probative value. It may well be circumstantial evidence which, when considered with the other evidence in a case, may permit inferences to be drawn about whether or not a complainant did or did not consent or whether she was or was not capable of consenting at the relevant time. But even here, while not required as a matter of law, for such evidence to be probative, some expert evidence will almost always be essential.

[73] As noted, where a complainant is unable to testify to her subjective state of mind, the Crown may prove a lack of consent and/or lack of capacity to consent through circumstantial evidence. This may include evidence of the complainant’s lack of memory, along with all of the other circumstantial (and direct) evidence in the case.

[19] In this case the allegation is that Z.D. sexually assaulted A.K. in the back of his vehicle. As previously mentioned, A.K. testified that she had no memory of what happened in the truck until she woke up to Z.D. penetrating her vagina and M.H. with his penis at or in her mouth. She testified that during the entire interaction in the vehicle, her memory suffered from serious gaps. She remembered waking up to Z.D. penetrating her, and M.H asking her to engage in anal sex and her declining.

[20] In the absence of direct evidence from A.K. as to her subjective state of mind at the relevant time, I must consider all of the evidence in the case, including circumstantial evidence.

[21] I will start with the evidence of Z.D. and apply the W.D framework. Having considered all of his evidence and the other evidence summarized below, I believe his evidence in regard to A.K.’s capacity to consent. His evidence was largely internally consistent, as acknowledged by the Crown. Much of his evidence matched that of A.K.’s. He testified in a straightforward manner, without exaggeration. His evidence was not shaken in cross-examination.

[22] Z.D.’s evidence that I believe and accept regarding A.K.’s capacity to consent and consent is summarized as follows:

1. On August 17, 2019 he was at a Club. He was in a booth with his friends when he saw A.K. on the dancefloor. He recognized her from high school and from her Instagram account. She had also been dating a mutual friend. Z.D. approached her on the dancefloor, and they engaged in small talk.
2. He described A.K. as “completely normal” when he first encountered her. He did not recall if she had any drinks in her hand at the time. Z.D. returned to a booth with his friends and A.K. came by 15-20 minutes later to talk. Z.D. testified that “She was still fine, she was normal. She was talking, walking and laughing” and did “not at all” appear to be drunk. A.K. took Z.D. by the hand, and they went to the dance floor where they began to dance and “hook up.” She had no coordination difficulties at all.
3. Z.D. asked A.K. if she wanted to get a drink at the bar, and she agreed. He testified that she appeared fine and did not appear sick. They continued dancing and grinding with one another. Z.D. asked A.K. if she wanted to do some cocaine. She said yes. He obtained some cocaine from M.H.
4. Z.D. testified that A.K. had no difficulty walking to the bathroom and never expressed feeling sick. They went to the bathroom in order to consume cocaine.
5. Z.D. testified that A.K. urinated. She had no difficulty sitting on the toilet; no difficulty lifting her dress; no difficulty bringing down her underwear and had no difficulty washing her hands when they were leaving the restroom. A.K. consumed the cocaine. They returned to the booth, took a photo together and left shortly after.
6. Z.D. testified that A.K. asked to return to Oakville with him. She lived in Oakville. He stated that he was okay with that. He did not know her address.
7. He asked M.H. to drive because he was with A.K., and they were having a good time. The fact that he had consumed alcohol did not necessarily play a role in his decision to ask M.H. to drive.
8. Z.D. testified that A.K. had no difficulty with walking or her speech.
9. Once inside the vehicle, they continued chatting and laughing. They exchanged telephone numbers. They consumed another hit of cocaine.
10. Z.D. testified that they began to become intimate with one another. They were kissing and petting. He stated that she placed his hand on her vagina and she began to grope his penis. She removed his jogging pants and began to perform oral sex on him. She continued this for a couple of minutes and told him that it was his turn “to go down” on her. Z.D. agreed. A.K. was conscious throughout this encounter.
11. A.K. then asked Z.D. to “put it in”. He asked her if she was on birth control because he did not have condom with him. She stated that she was and had no difficulty communicating this to him.
12. Z.D. testified that he began having sex with her. M.H. asked if he could join. This was not something Z.D. was comfortable with as he did not want another guy’s penis in his face. However, A.K. stated that she was “down for it,” referring to Z.D. joining them.
13. Z.D. was clear that none of this conduct was forced on A.K.; that she was a willing participant and she had her faculties about her.

[23] There were only two places where Z.D.’s evidence directly contradicted that of A.K.’s before they got in the vehicle. First, A.K. testified that she vomited in the bathroom, and second, that she vomited just outside the vehicle. Z.D. testified that she not vomit either time.

[24] I accept Z.D.’s evidence in this regard. Z.D.’s evidence that he would have been concerned about A.K. getting in his vehicle if she had just vomited is credible. His evidence was reasonable. His evidence on this point was not shaken in cross. He had a good memory of the events of that evening.

[25] Z.D.’s evidence as to A.K.’s capacity up to the time she entered the vehicle is consistent with A.K.’s evidence in the following ways:

1. A.K. testified that although she had been drinking before coming to the Club, she agreed that no one had expressed any concerns about her drinking or sobriety. She had no difficulties standing in line or walking. She was not having issues with her coordination. She agreed that she had told the police that upon her arrival at the Cub she felt “tipsy but pretty normal.”
2. A.K. agreed that her friends at the Club, particularly K., did not express any concerns with her level of impairment.
3. A.K. testified in-chief that she “may have been falling over a bit” when she went to the restroom at the Club. In cross, she agreed that this may have been an exaggeration and she had never previously she said that she may have been falling over.
4. The entrance to the Club had stairs. A.K. did not know if she had difficulty with the stairs but agreed that none of her friends said anything to her about any difficulties walking.
5. A.K. did not recall giving her address to Z.D. and M.H. but agreed that she must have because neither knew where she lived. She also agreed that she made a conscious decision to return to Oakville in his vehicle as that had not been her initial plan. Her initial plan was to stay in Toronto.
6. A.K. agreed that once in the truck, it was possible that she and Z.D. exchanged numbers.

[26] A.K. testified in cross-examination as follows as to what happened in the vehicle:

1. It was possible she and Z.D. were holding hands.
2. It was possible that at some point in their drive she and Z.D. started making out.
3. It was possible that she engaged in foreplay with Z.D.
4. She didn’t know if she put her hands on his penis over the clothes.
5. She didn’t remember if she placed his hand on her vagina. She couldn’t say one way or the other.
6. She doesn’t remember if she started performing oral sex on Z.D.
7. She doesn’t remember if she asked Z.D. to perform oral sex on her.
8. A.K. stayed that she could not remember, but it was possible that she said “I want you inside of me” to Z.D.

[27] A.K.’s evidence does not contradict Z.D.’s. She acknowledges that it was possible that she performed oral sex on Z.D., that she asked him to engage in sexual intercourse, and that she could not remember.

[28] I am not satisfied beyond a reasonable doubt that A.K. lacked capacity. A.K. made a decision that night, just before getting in the vehicle, to go to Oakville rather than go back to a hotel as originally planned. She provided her home address to Z.D. and M.H., to be dropped off. She made a decision not to have anal sex with M.H.

[29] In summary, her evidence regarding the sexual activity is that it was both possible that she performed oral sex on Z.D. and that she asked him to “put it in.” She also acknowledged that it was possible that while she had no memory, that she may have appeared conscious, spoke, and interacted with Z.D.

[30] I do not put any weight on the evidence of A.K.’s friends T.N. and E.C. as to whether A.K. had capacity or consented. There are other plausible explanations for A.K.’s demeanor, other than that she was sexually assaulted, such as her being upset at her lack of memory of that night.

[31] In the circumstances of this case, including the acknowledgements of A.K. in cross examination, I find that A.K.’s evidence of a lack of memory does not conclusively establish that she did not consent or was incapable of consenting.

[32] I refer to Le Goff, at para. 72: “memory loss on its own does not conclusively establish that the complainant did or did not consent, or that they were or were not capable of consenting.” While a complainant’s memory loss may be circumstantial evidence that there was a lack of consent or a lack of capacity, a blackout or memory loss, without more, cannot be taken as proof.

[33] I have considered the evidence of Cara Shepard who was called as an expert by the Crown. She was qualified by the Court to give expert evidence as to the absorption, distribution and elimination of drugs including alcohol in the human body, the detection and analysis of bodily substances such as blood and urine for the presence and concentration of drugs and alcohol, and the pharmacological effects of drugs and alcohol on the human body.

[34] Ms. Shepard testified that an analysis was done of A.K.’s blood and urine taken as part of sexual assault examination kit on August 18, 2019.

[35] No alcohol was detected in the blood samples. A small amount of Benzoylecgonine (BE), a metabolite of cocaine, was detected in A.K.’s blood.

[36] A.K.’s urine sample showed BE and morphine. No alcohol was detected.

[37] I did not find this evidence of assistance in this case. Ms. Shepard acknowledged that the results of the blood analysis do not reveal how much cocaine was consumed. The urine test results can only provide some general information about the time of drug consumption. While the fact that no alcohol was detected in the blood or urine can be used to work backward and project a range of alcohol concentration in the blood assuming an average elimination rate, the calculation assumes that the person had zero alcohol in their blood at the very moment the test was taken and not before. Further, as Ms. Shepard testified, the effects of alcohol will be dependent upon a person’s tolerance for alcohol, and a person’s experience with alcohol. For instance, Ms. Shepard testified that individuals with a high tolerance for alcohol could not be displaying any outward observable effects at very high blood concentration but still be experiencing memory impairment. She could not predict someone’s degree of tolerance just by knowing how much alcohol they consumed. Calculating the blood alcohol level is also dependent on an individual’s elimination rate, the time when the alcohol level reached zero and when they voided their bladder. None of this was known in regard to A.K.’s sample. Additionally, Ms. Shepard did not know the alcohol content of the drinks she was asked to assume A.K. drank.

[38] Because so much is dependent on a person’s tolerance for alcohol, Ms. Shepard’s hypothetical calculations cannot be applied with any reliability to A.K.’s consumption of alcohol that night to calculate her blood alcohol level. Further, the hypothetical calculation assumes complete and total absorption of all the alcohol that was consumed. Ms. Shepard acknowledged that in reality this may not occur. Ms. Shepard also acknowledged that someone can be experiencing an alcohol-induced blackout but appear entirely normal to an outside observer and that memory impairment is different than incapacitation. When someone is experiencing an alcohol induced blackout, they are conscious, they are carrying on conversations, and they are interacting with their environment. It is different than unconsciousness. They can make conscious decisions.

[39] For these reasons, Ms. Shepard’s evidence was not of assistance to this Court on the issue of A.K.’s capacity.

Conclusion:

[40] I have accepted Z.D.’s evidence as to A.K.’s capacity and consent. The Crown has not established that A.K. did not consent and/or did not have capacity beyond a reasonable doubt. Therefore, Z.D. is acquitted of both charges.

Coats J. Date: January 12, 2024

COURT FILE NO.: CR-21-0054-0000 DATE: 2024 01 12 ONTARIO SUPERIOR COURT OF JUSTICE HIS MAJESTY THE KING – and – Z.D. REASONS FOR DECISION Coats J. Released: January 12, 2024