When are you too drunk to consent? A Toronto trial shows how Canadian law doesn’t really answer that question

When are you too drunk to consent? A Toronto trial shows how Canadian law doesn’t really answer that question
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A jury wrestled with these questions over four days last week before finding Gavin MacMillan, 44, and Enzo DeJesus Carrasco, 34, guilty of sexually assaulting and drugging a 24-year-old woman over several hours at their downtown Toronto bar in 2016.

They aren’t the only ones to struggle with the answer. Judges, academics and legislators continue to debate how we should determine whether someone had the capacity to consent, often without much evidence of a complainant’s state at the time.

Some say the current legal standard in Ontario, which was used in the College Street Bar trial, is too low and doesn’t do enough to protect people in vulnerable, highly intoxicated states.

“This is going to have to be decided by the Supreme Court pretty soon. There isn’t a science. Judges look at the circumstances and pull it out of their hat,” said defence lawyer Angela Chaisson. “It’s really tricky.”

The College Street Bar trial shows how difficult it can be for a jury to decide where the line on capacity to consent is while a complainant is conscious, and demonstrates why experts say the current law offers little guidance.

What evidence did the jury hear?

The woman, now 27, testified she could remember only hazy bits and pieces from the night and described feeling like she was in a dreamlike state, her vision distorted as if she was looking through a fishbowl.

“I don’t remember any of that, so how could it have been consensual in any way,” she said, after hours of being cross-examined.

Unusually, her memory — or lack of memory — was far from the only evidence the jury had.

The jury saw several hours of footage from the bar’s eight security cameras that showed the woman drinking, including downing three shots in 10 minutes and taking several lines of cocaine. Crucially, the video showed almost all the interactions between her and the two men that took place that night, not just the time immediately before the start of the sexual activity, as is more typical of cases that may have video evidence from hotel or bar cameras.

In court, after MacMillan was shown the video of the complainant stumbling around the bar 20 minutes before the sexual acts started, prosecutor Rick Nathanson posed him a scenario:

“If you were behind that bar and were seeing what you just saw … and she pulled out her car keys and said, ‘Have a good night, I’m driving home now’ — you would never let her leave.”

DeJesus Carrasco’s lawyer asked him to evaluate the complainant’s sobriety using the province’s Smart Serve criteria for determining when someone is too drunk to serve more alcohol — slurred speech, glassy eyes.

An emergency room doctor testified the woman’s appearance in the footage suggested her “executive function” would have been seriously impaired while she was conscious; her muscle tone and limpness suggested she was at or near unconsciousness during some of the sexual activity.

A toxicologist testified about symptoms, including memory loss, that could manifest at different blood alcohol ranges, with the caveat that everyone processes alcohol differently.

But being visibly too drunk to drive, unable to walk steadily, memory loss or even vomiting are not clear indicators of incapacity under the law.

And expert evidence, including from toxicologists, is often unhelpful as they can only suggest what is possible in general terms based on the evidence, but can’t say what actually happened with a specific person, Chaisson said.

MacMillan and DeJesus Carrasco were convicted of gang sex assault and drugging to facilitate a sexual assault. However, the jury acquitted DeJesus Carrasco on a charge of sexual assault from earlier in the night. Jurors were also unable to reach a verdict on a charge of sexual assault for after he left the bar with the complainant the next morning, and could not reach a verdict on the charges of forcible confinement both men faced.

Since jury deliberations are secret and they do not provide reasons for their decisions, it will be up to a judge to find if the woman had not consented, was unconscious, or lacked capacity while conscious.
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