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Client found not guilty of a charge of Sexual Assault after five day trial in the Superior Court in Barrie. D.I. was invited to a party in Barrie at a young lady’s home whom he met via Plenty of Fish dating site. The party became extremely large and out of control. D.I. was drinking as everyone at the party was intoxicated and using marijuana. The complainant met up with the client during the evening and took shots from his bottle. At some point, the two went to D.I.’s car and sexual intercourse took place. As D.I. was exiting the car, he was pulling up his pants and a police officer had arrived and noticed D.I. D.I. appeared highly intoxicated and the officer thought he was going to attempt to drive. When he looked into the car, the officer found the complainant passed out in the car. Several police and paramedics attempted to wake up the complainant but she was unresponsive. She was removed from the car, place on a stretcher and taken to hospital. D.I. was charged with sexual assault.

The Crown pursued the prosecution on two grounds. First, that the complainant was heavily intoxicated and D.I. knew she was heavily intoxicated. Her blood alcohol readings were between 254 and 295 mg per 100 millilitres of blood. A very high level. Thus the Crown argued that at such a high level of intoxication she lacked the “capacity” to consent to sexual activity and D.I. knew this or was wilfully blind that he lacked consent. The second ground was that the complainant must have passed out during sexual contact in the car and thus D.I. no longer had consent as per the Supreme Court of Canada’s decision in Regina v. J.R.. In addition, the Crown relied on an Ontario Court of Justice decision wherein the Court stated that because the complainant in that case was passed out and was unresponsive, there was clear evidence that she lacked the capacity to consent.

Defence lawyers Joseph Neuberger and Stacey Nichols extensively cross-examined all Crown witnesses as to their observations of the complainant and showed that all Crown witnesses were unreliable. However, the complainant, under cross-examination by Joseph Neuberger, admitted that she has been drinking excessively for several months leading up to the date of the party. In fact, the complainant drank four to five times per week at least 375 ml of rum per night and when drunk was a heavy sleeper. The complainant admitted to being an experienced drinker who developed a high level of tolerance. During the party, she admitted to be a social butterfly and being able to socialize, talk, walk and have fun. That the alcohol helped her be more social and she enjoyed herself. However, after a point of drinking she had no memory of the events. Under cross-examination by Joseph Neuberger she admitted that she cannot remember if she consented to sexual contact due to her memory loss.

An expert toxicologist testified for the Crown. The toxicologist testified at to the blood alcohol levels and the general effects of high levels of alcohol. Under cross-examination by Defence lawyer Joseph Neuberger, the expert agreed that the pattern of drinking of the complainant is indicative of a “heavy” drinker and she would not doubt have a higher degree of tolerance. It would be no surprise that she could be functional even while at such a high level of intoxication. More importantly, the expert agreed that just because the complainant was found to be passed out in the car and not responding to police and paramedics, thus in a deep sleep, it does not mean that the complainant could not have been functional 10, 12, 13 or even 15 minutes prior to being found passed out. This one important evidentiary point directly contradicts that finding of the court in the case the Crown was relying upon.

Stacey Nichols and Joseph Neuberger crossed other witnesses that showed the complainant was functional and in fact was outside the house having a cigarette minutes before the sexual contact, and appeared to smile and be “fine”. In addition, although the Crown refused to call medical evidence, Joseph Neuberger extracted from the police witnesses that the complainant was released from hospital some two hours later without any treatment for alcohol poisoning or for any distress and that in fact by an hour or so after her arrival in hospital she was awake and talking to hospital staff. Thus, this evidence detracted from the argument that the complainant was in an exceptionally intoxicated state. Finally, the Crown tendered the video statement of the client.

Based on all the evidence, the Court found D.I. innocent and thus not guilty of the charge of sexual assault.

Case Comment: When dealing with sexual assault cases where the Crown alleges “incapacity to consent” it is extremely important to focus on the surrounding evidence and understand cognitive functioning and that consent to intimate contact requires a minimal level of cognitive functioning.