R. v. D.C., 2018 NUCJ 20

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. D.C., 2018 NUCJ 20 Date: 20180724 Docket: 08-16-228 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: D.C. ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Crown): Doug Garson Counsel (Accused): Ilan Neuman Location Heard: Iqaluit, Nunavut Date Heard: November 7 & 8, 2017, and June 8, 2018 Matters: Judgment for criminal charge under

section 271 of the Criminal Code , RSC 1985, c C-46. REASONS FOR JUDGMENT (Delivered Orally)

(NOTE: This document may have been edited for publication) DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. TABLE OF CONTENTS I. INTRODUCTION . 4 II. EVIDENCE . 4 A. Testimony of the Complainant, S.K. 4 B. Testimony of K.K. 7 C. Testimony of M.K. 7 D. Testimony of the accused, D.C. 7 E. Testimony of A.B. 9 F.

Testimony of R.R. 9 III. LAW .. 10 IV. POSITION OF THE PARTIES . 13 A. Defence Submissions . 13 B. Crown Submissions . 14 C. Defence Reply . 15 V. ANALYSIS . 16 A. Issue One . 17 (i). Disposition of Issue One . 19 B. Issue Two . 19 (ii). Disposition of Issue Two . 21

I. INTRODUCTION [1] The accused, D.C., is charged with sexually assaulting the complainant, S.K., on May 15, 2016, in the City of Iqaluit, contrary tosection 271 of the Criminal Code, RSC 1985, c C-46 [Criminal Code]. This case raises issues that come before this Court and otherCourts in Canada frequently because it concerns the application of the rules set out in R v Ewanchuk, (SCC), 133 CCC(3d) 481, to drunken sexual conduct . In all these cases the complainant was intoxicated and in most cases the accused was as well. Onesuch case that the Crown relied on is R v CP, 2017 ONCJ 277 [CP].

The case carefully examined all of the applicable legalprinciples and discussed a number of relevant Ontario cases where the principles were applied to facts similar to this case – where boththe complainant and the accused were intoxicated. I adopt paragraphs 56 to 60 of CP on the fundamental principles applicable to allcriminal trials. II. EVIDENCE [2] The Crown and Defence filed an agreed statement of facts that stipulated that DNA swabs were taken from the complainant’svagina and anus and the area surrounding the vagina and anus. An oral swab indicated weak PSA and phosphatase, but no spermatozoawere found.

The swab was submitted for DNA analysis. There was no semen identified in rectal swab and it was not submitted for DNAanalysis. When the complainant was examined at the hospital on May 15, 2016, there were no bruises, tearing, marks or injuries found inthe complainant’s vagina or anus other than noted in the sexual assault kit. [3] The Crown called evidence from the complainant, her mother M.K., and K.K. A. Testimony of the Complainant, S.K. [4] The complainant lives in Tundra Valley with her mother, her uncle W.K., his wife K.

N., and her four children J, M, M, and H. [5] She was at home on the evening of May 14, 2016, and had just smoked a joint of marijuana that left her stoned when around 11 or12 o’clock she received a text message from her friend K.K. inviting her to a party. She told K.K. that she had a fight with her commonlaw husband and that he had her newborn baby that night. As a result she accepted her invitation to go drinking. [6] She took a taxi to the accused’s mother’s residence in Tundra Valley. She discovered that the accused was there along with K.K.’scommon law partner, A.B.

After the complainant arrived, K.K. offered her a drink of vodka. K.K. poured vodka in a large glass until itwas half full and gave it to the complainant. The complainant did not like to drink vodka straight and she ordered some C plus orangesoft drink from the Snack restaurant. While waiting for the C plus to arrive, everyone started drinking the vodka straight from the bottleand began socializing and talking. The complainant became intoxicated quickly because she was drinking the vodka straight.

Sheremembered having a good time and then getting a text message from a friend around one in the morning asking if she was okay. Shetold the friend she was okay and was having a good time. Then she had what she described was a blackout. [7] The next thing the complainant remembered after, in her words “blacking out”, was that the accused was on top of her, screamingat her. She only had her bra on and she tried to fight him and get him off her, but was not initially successful. She testified that theaccused was holding her legs up and put his penis in her bum.

After struggling for a while, she pushed him off her and told him he was“fucking crazy”. Then she ran out of the residence. She says she told the accused to stop but he did not listen to her and that she felt painin her anus. She said the accused used to be her friend but she never thought he would do that to her. [8] She ended up at the hospital but did not remember how she got there. The nursing staff did a rape kit procedure and called thepolice. The police arrived and she talked with them for a while. They asked her about some marks on her neck and chest and took some

pictures that were entered as Exhibit “1.” She described the mark on her neck as a “hickey” and indicated that she did not remember how she got it until she got to the hospital. Then she remembered that she and the accused gave each other one earlier when the party was starting. He had asked her to give him one so he could forget about his ex-girlfriend N.L. and then he did the same to her. She gave the accused the hickey as a favour and did not expect the hickey exchange to lead to sex.

If she knew the hickey was going to lead to sex, then she would never have given it to the accused. [ 9 ] Later the next day, when she was at home showering, she noticed that she had bruises all over her body including the top of her feet. The complainant did not have the bruises when she started the evening. [ 10 ] In cross-examination, the complainant acknowledged that at some point in the evening K.K. and A.B. had a fight and left the party. She remembered K.K. getting ready to leave the building when she was barfing.

K.K. then tried to get the complainant to leave with her in a cab, but she refused to go with her because she was vomiting. After being confronted with her statement to the police, the complainant acknowledged that she told the police officer who took her statement that did not want to leave with K.K. because she wanted to finish her drink, but did not have an independent recall of saying that. [ 11 ] The complainant also acknowledged, after being confronted with her statement that at some point in the evening she went to get a dog in the living room and noticed R.R. was asleep on the couch in the living room.

She said hello to him. However, she had no memory of speaking to R.R. when she was leaving the house. [ 12 ] The complainant had no memory of talking on the phone with anyone before or after the sexual contact. She also confirmed that she had no memory of getting to the hospital, nor of how she got the bruises on her body. She knew she had struggled with the accused and assumed that was how she got the bruises. She testified that the accused’s hand marks were on her arms, legs, backside, and back. She knew she had a telephone call from her mother because her phone log showed it, but she had no memory of the call.

She agreed that she was functioning, but had little memory from the time shortly after she started drinking until she woke up in the hospital. [ 13 ] However, she did remember sitting on the lap of the accused after she started drinking. They talked about when they were in a boyfriend-girlfriend relationship in high school. They used to kiss and hold hands but never had intercourse because the accused was too afraid of her mother. That night, the complainant knew that the accused had just broken up with his girlfriend, N.L., and felt bad about it.

That was the reason they had exchanged hickeys. [ 14 ] She had no memory of the accused telling her he could not get an erection and asking her to try oral sex and then, when that would not work, asking her to try anal sex.

However, she did remember the accused saying “she had a loose vagina” and then forcing himself “up her butt.” She had no memory of the accused getting a number of text messages just before she left for the hospital. [ 15 ] She had no memory of asking R.R. to call her a taxi, nor of how her clothes were removed. [ 16 ] The complainant acknowledged that there were big gaps in her memory from the time that K.K. left until the struggle with the accused and then how she got to the hospital. She agreed that she was functioning and doing things but could not remember them. B.

Testimony of K.K. [ 17 ] K.K. confirmed asking the complainant to come with her when she left the party, but the complainant did not follow her. She testified that the complainant had 2 or 3 cups of vodka straight and was “pretty drunk”. K.K. said the complainant was vomiting when she asked her to leave. K.K. also said that she was very drunk and did not remember having a fight with A.B. C. Testimony of M.K. [ 18 ] M.K. testified that she received a telephone call from the complainant about 2:30 in the morning.

She said the complainant’s voice was crackly, and that the complainant told her that she was okay and would be home soon. In cross-examination, she admitted when confronted with her statement to the police that she also heard a male voice say something like “go on top”. She also acknowledged that

she told the officers that she was kind of worried about her but she did not seem alarmed. D. Testimony of the accused, D.C. [ 19 ] The accused testified in his own defence. He is in a relationship with N.L. and they are the parents of a one year old son. On the evening in question, he was drinking at the Navigator with A.B. and K.K., where he drank five or six beers. After the bar closed, they agreed to split the cost of a 60 oz bottle of vodka and continued to party. K.K. went for the alcohol, while the accused shared a joint of marijuana with A.B. after they got back to his mother’s house.

K.K. arrived at the accused’s mother’s house and they started drinking out of the bottle. Then K.K. said the complainant wanted to drop by and went to get her. [ 20 ] The accused and A.B. were becoming drunk when the complainant arrived. After her arrival, the complainant noticed the accused’s dogs and started playing with them. They all drank and were having fun. Everyone was happy that he had broken up with N.L. The accused was sitting by the window of his bedroom on a little green bucket and the complainant was sitting on the bed.

The complainant went over and sat on the accused’s lap and stayed there for a while. A.B. and K.K. got into a fight and he asked K.K. to follow him. They were outside in the porch talking with the complainant and wanted her to leave with them. K.K. got mad at the complainant and started yelling at her and then she and A.B. left in a taxi. [ 21 ] The complainant came back into the house and lay down next to the accused. He asked her why she did not go and she said she did not feel like it.

They kept drinking and started talking about why they never had sex when they were just kids and he mentioned it was because he was afraid of her mother. Then they agreed to have sex and started taking off their clothes. He had a hard time getting an erection and asked her to give him oral sex, but that did not help either. They tried anal sex, but that did not work either. While this was happening, the accused got a bunch of text messages from N.L. saying she wanted to see him and was coming over to his house. He tried to get the complainant to leave but she would not go.

He started to shove the complainant off the bed to get her to leave because his girlfriend was coming. The complainant got upset and started screaming. He thought she felt that she was being used. [ 22 ] The accused got angry and tried to kick the complainant out. They struggled and then the complainant left. Rick heard the commotion and called her a cab. The accused denied using any force during the attempted sex.

About five minutes later, N.L. arrived and started banging on the window of the residence. [ 23 ] In cross-examination, the accused revealed additional information about his interactions with the complainant after the party started. He testified that the complainant was openly flirting with him in front of K.K. and A.B. They were also putting their arms around each other and kissing and hugging. This went on for about an hour until A.B. and K.K. argued and left. [ 24 ] The accused confirmed that he wanted to have sex with complainant that night.

When the Crown prosecutor asked the accused why he had asked the complainant a question about why she did not leave with K.K., the accused responded that he did not want to force her to do it. The Crown prosecutor pointed out to the accused that at no time in his examination-in-chief did he say anything about the complainant being on top of him during sex. The accused acknowledged that he did not say anything about that or about the kissing and fondling that went on. E. Testimony of A.B. [ 25 ] The Defence also called A.B. as a witness.

He testified that he got “pretty drunk fast” and that there was another person staying at the accused’s house that night whose name he couldn’t remember. A.B. exhibited some reluctance to give the testimony anticipated by Defence Counsel – as set out in a previous statement he gave. After having a chance to refresh his memory, he acknowledged that he saw the complainant kissing the accused during the party that night. In cross-examination, the Crown elicited that the witness was very intoxicated that night and did not have a clear memory of what went on. F.Testimony of R.R. [ 26 ] Defence also called R.R.

He was living in the D.C. residence on the night of the incident and was sleeping on a couch in the living

room. He remembered the accused and the complainant were in the bedroom that was only separated from the living room by a curtain.They went back and forth from the bedroom to the living room where he was watching television. They would sit with him for a bit andthen go back to the bedroom. He remembered another couple being there for a couple of hours and then leaving. He testified that theaccused and complainant were listening to music and playing videos and seemed to be having a good time. [27] He remembered that the complainant left about an hour after K.K. and A.B. left.

He thought K.K. and A.B. only had a few drinks.R.R. testified that before leaving the complainant came out of the bedroom with her clothes on and asked him to call her a taxi. She alsoasked him to help her out to the taxi, but after she put her shoes on she was able to make it without his help. The complainant appearedto be a little bit under the influence of alcohol. She was friendly and he had no difficulty in understanding her when she spoke to him. [28] In cross-examination, he confirmed that all four people were drinking from a 60 oz bottle.

R.R. initially resisted the suggestionsfrom the Crown prosecutor that a lot more alcohol was consumed than he had testified to. He maintained that no one was out of control.However, after waffling and changing his story several times, he finally admitted that the complainant was intoxicated. He alsoacknowledged after vacillating that the complainant was distraught and upset when she came out of the bedroom.

He then added that shemade a phone call before she left and that N.L. was banging on the door of the residence after the complainant had departed. [29] R.R. denied that the complainant was staggering from the alcohol and that this was why she asked for help getting to the taxi.However, he did acknowledge that the accused was intoxicated. [30] In re-examination, R.R. confirmed that he had no trouble understanding either the accused or complainant.

Neither had any troublewalking and they made sense when they talked to him. [31] He concluded by stating that, although both were intoxicated, “they were functionable, very functionable” III. LAW [32] As noted in CP, consent is determined by reference to the complainant’s state of mind at the time the touching occurs. A courtmust ask whether the complainant wanted the sexual touching to occur. If the complainant may have appeared to have wanted the sexualactivity to occur, then that consent may be negated by

section 273.1(2) of the Criminal Code. It states, there is no consent where thecomplainant is incapable of consenting. [33] In R v JA, 2011 SCC 28, [2011] 2 SCR 440, the Supreme Court of Canada clarified that an unconscious individual cannot consentto sex. As noted by Crosbie J. at paragraph 67 of CP, the degree of intoxication required to rise to the level of incapacity is notstraightforward. She stated: 68. ...

In other words, they must have a sufficient awareness of what is happening and an ability to make decisions and act on them.Cases where extreme intoxication have led to findings of incapacity to consent tend to be cases where the evidence of intoxication is farbeyond the loss of gross motor skills and balance. These cases tend to include evidence of a loss of awareness or loss of consciousness. 69. To be clear, to prove incapacity to consent to sexual activity, the Crown does not need to prove that the complainant was in a stateakin to automatism as a result of impairment.

Instead, the question to be determined is whether the complainant lacked the minimalcapacity to consent, or withhold his or her consent, to the sexual activity. [34] In this case, the complainant testified that she had blacked out and could not remember a large part of the evening. This does notnecessarily mean that she was incapable of consenting.

As noted by Crosbie J. at paragraphs 103 and 104 of CP, the effect of alcoholinduced amnesia or a blackout was considered by Ducharme J. in R v JR, (ON SC), [2006] OJ No 2698 (SCJ) [JR].He adopted the words of Major J. in R v Esau (1997), (SCC), 116 CCC (3d) 289 at 296 (SCC)[Esau], stating: ...Absent expert evidence, a loss of memory or a ‘blackout’ is direct evidence of nothing except the fact that the witness cannot testify asto what happened during a particular period.

[35] On the other hand, Ducharme J. noted that the absence of evidence of consent due to the impact of alcohol on a complainant’smemory is not necessarily fatal to the prosecution, especially where the Crown presented other significant evidence. The blackout is notnecessarily irrelevant or lacking in probative value. It, along with other evidence in a case, may permit inferences to be drawn aboutwhether a complainant did or did not consent, or whether she was or was not capable of consenting at the relevant time. [36] An instructive case is R v MT, 2016 ONCJ 614 [MT].

Green J. described the facts in the first paragraph of the judgment: [1] On July 17, 2015, K.S. went with some friends to a bar to celebrate a friend’s birthday. She woke up the next morning atapproximately 11:00 or 11:30 a.m. in a hotel room. She was naked, the tampon she had put in the night before was gone and she had norecollection of how she arrived at the hotel or with whom she had arrived. K.S., knew one thing: that someone had sexual intercoursewith her. K.S. contacted the front desk at the hotel and discovered the name of the person who registered for the room and asked herroommate to come pick her up.

Ultimately the defendant was identified as the person who was with K.S. in the early morning hours ofJuly 18, 2015. He was arrested and charged with sexual assault. [37] In summarizing the general principles from the cases reviewed, Green J. stated: [94] What stands out from all these cases, is that consent to sexual acts does not require a high level of consciousness.

While the courtsphrase the test as having the ability to understand the risks and consequences associated with the sexual act that he or she is engaged inas well as understanding the sexual nature of the act and the ability to realize that one can refuse, it does not require that the complainantbe able to properly evaluate those risks and consequences with a clear mind unencumbered by the effects of alcohol. Bad decisionsbased on loss of inhibitions due to intoxication is not enough to meet the test for incapacity.

Moreover, the court cannot concludeincapacity to consent from the mere fact that the complainant is effectively falling down drunk. The courts have consistently held thatthis alone is insufficient to confirm whether the complainant had an operating mind.

In order to make a finding of incapacity to consent,the case law suggests that the court must be able to identify evidence that establishes, beyond a reasonable doubt that the complainant’scognitive capacity is sufficiently impaired by the consumption of alcohol so as to make her incapable of knowing that she is engaging ina sexual act or that she can refuse to engage in the sexual act. [38] Green J. then held the complainant lacked the capacity to consent for various reasons, including the amount of alcohol consumed,the indicia of impairment as seen in various videos, and that the complainant was falling asleep in an elevator.

IV. POSITION OF THE PARTIES A. Defence Submissions [39] Defence Counsel emphasized the difference between lack of memory and the lack of a functioning mind. While the complainantclearly did not remember large parts of the evening, she did exhibit some indicia of an operating mind. He relied on the observations ofR.R. about the complainant when she came out of the bedroom with her clothes on and the conversation he had with her.

She appeared tohim to be exhibiting minimal signs of a functioning mind. [40] He submitted that there were conflicts between the complainant’s evidence and the evidence from the sexual assault kit set out inthe agreed statement of facts. The results of the testing showed that no DNA was found and there was no tearing or bruising of thecomplainant’s anal area. This contradicts the complainant’s evidence that she could still feel the pain in her anus for the rest of the week. [41] He pointed out A.B.’s evidence that he saw the complainant kissing the accused.

There is also a conflict between thecomplainant’s evidence about getting dressed on the porch before leaving and R.R.’s evidence that she was fully dressed when she cameout of the bedroom. [42] Next, Defence Counsel noted the evidence from the complainant’s mother about the phone call where she heard a male voice say“you get on top”.

[ 43 ] The complainant testified that she had been fighting with her boyfriend and that N.L. was her best friend. She also confirmed that she and the accused gave each other hickeys. The accused was not kind to the complainant when he knew N.L. was coming to his mother’s house.

He told her to leave and when she would not, he pushed her out of the bedroom. [ 44 ] The complainant agreed she was sitting on the accused’s lap and kissing him. [ 45 ] Finally, there is her mother’s evidence on the phone call that the complainant told her mother everything was okay and she would be home soon followed by the “you get on top” comment. [ 46 ] This evidence suggests that the complainant consented to the sexual contact described by the accused, but was motivated to conceal it. She did not want anyone to know that she went out drinking and had a one night stand with her best friend’s boyfriend.

She also had the hickeys on her neck and could not hide them. She was struggling with the fact that she had consensual sex and was trying to piece it all together. [ 47 ] Defence Counsel argued that there was no evidence that the complainant lacked the capacity to consent. In fact, there is evidence to the contrary. There is evidence of her conversations and text messaging as well as her mother’s evidence about the phone call, and R.R.’s evidence about his conversation and interaction with her before she left.

Furthermore, the complainant acknowledged at page 37 of the trial transcript that she was functioning even though she cannot remember. When you put all these facts together, it raises a very big red flag. [ 48 ] Defence Counsel also expressed concerns about the complainant talking to K.K. after the preliminary inquiry about R.R. being in the residence. This conversation apparently caused the complainant’s memory to come back to her. Although this is not necessarily evidence of deceit, it is evidence that a person is trying to reconstruct things.

The complainant may have come up with what she thinks happened and then maybe convinced herself that something happened the way she reconstructed it. In the end result, it should cause the Court concern about the frailty of her recollection. [ 49 ] In conclusion, Defence Counsel referred the court to the reasons from Major J. in Esau that was adopted by Ducharme J. in JR , referred to above.

The question to be asked is ‘was the complainant functional and not whether she can remember.’ Looking at all the evidence the Court should conclude that the complainant had a sufficient functional mind to appreciate what she was doing and that she had the capacity to consent to the sexual activity that took place. B. Crown Submissions [ 50 ] The Crown submits that it presented proof beyond a reasonable doubt that the complainant did not consent to having sex with the accused.

In the alternative, the evidence shows that she was so intoxicated that she lacked the capacity to consent to sexual activity and the accused knew she lacked the capacity to consent. [ 51 ] Crown counsel submits that I should give little to no weight to the testimony of R.R. He was a hesitant witness and he equivocated in his answers. He answered questions in a half-hearted way and was contradicted by the accused on the level of the complainant’s intoxication. The complainant says she was very intoxicated, as did K.K. and A.B.

Only R.R. maintains that she was in reasonably good shape. [ 52 ] Crown Counsel submits that the evidence establishes that the complainant was highly intoxicated. The complainant testified in cross-examination that she was unsure enough about what happened at the hospital that she had to ask K.K. and A.B.. She told them she blacked out. She blacked out because she was drinking vodka straight from a 60 oz bottle. Throughout her cross-examination, she maintained that she could not remember the material parts of the evening because she was blacked out. Additionally, the accused admitted that she was really drunk.

She was so drunk that she then vomited in his bedroom. [ 53 ] Overall, there is ample evidence that the complainant did not have the capacity to consent. She was a candid, honest witness who was not evasive like R.R.

C. Defence Reply [ 54 ] In reply, Defence Counsel noted the accused’s answer to a question at page 94 after the answer on page 93 that the complainant threw up. Q. "I suggest that she was so drunk that she couldn't stand straight." A. No, she wasn't that drunk. She was still operational, petting my dog. She was functional the whole time. [ 55 ] Defence Counsel distinguished CP because in that case the woman was not blacked out – she was passed out. She was unconscious and was being taken advantage of. Whereas, in this case, we have a blacked out person not a person who passed out.

She is talking to her mother and everybody else and the question for the Court to decide is whether her evidence is reliable. Defence Counsel argues that it is not reliable and it would be unsafe to convict. [ 56 ] Finally, the accused’s story could reasonably be correct. It is backed up by the results of the sexual assault kit. V. ANALYSIS [ 57 ] I am satisfied that there is no issue that the accused touched the complainant intentionally.

There was contact between the accused’s penis and the complainant’s vagina and anus even though there may not have been penetration because the accused was unable to achieve an erection and did not ejaculate. There was also contact between the accused’s penis and the complainant’s mouth.

Therefore, the Crown must prove the complainant did not consent to the sexual activity or could not consent to sexual activity given her state of intoxication and that the accused knew she did not consent or was incapable of consenting because she was unconscious. [ 58 ] In this case, the accused, the complainant, K.K., and A.B. testified that they were all very drunk. The complainant testified at pages 14 to 17 of the trial transcript: Q So I will just ask you again: How drunk were you? A Drunk enough that I blacked out. I was drunker than anybody should be, I guess. Q Did you black out? A Yes.

Q What's the next thing that you remember? A The next thing I remember after blacking out was [D.C.] was on top of me and he was screaming at me. And I remember trying to fight him off but for awhile I couldn't get him off and then -- The accused maintains that although the complainant was drunk her mind was still functioning. He says at page 94 of the transcript: No, she wasn't that drunk. She was still operational, petting my dogs, she was functional the whole time. Q. Functional but throwing up? A. Throwing up but she was still functional. She was going around, she talked with Rick.

I don't know how to explain it.

[59] The complainant’s mind was clearly functioning early on during the party when she and the accused exchanged hickeys and shesat on the accused’s knee and started kissing him. It continued to function when K.K. left because she remembers the discussion withK.K. about leaving and she admitted she decided to stay and continue drinking. [60] There is also R.R.’s evidence that the complainant was functional when he saw her before she left the residence.

While I agree withthe Crown that R.R. was understating the condition of the complainant as a result of the consumption of alcohol, I accept his evidencethat she was functional enough to have a conversation with him. He also testified that the complainant made a telephone call before sheleft that she has no memory of making. [61] The complainant says she arrived at the accused’s residence at 11 or 12 o’clock at night and R.R. said that K.K. and A.B. werethere for 1 to 2 hours. R.R. testified that the complainant left about an hour after K.K. and A.B.

This time sequence suggests that K.K.and A.B. probably left around 1 o’clock, before the complainant texted a friend at 1 o’clock. The complainant then says she remembersnothing until she became aware of the attempt at anal intercourse. [62] The complainant was obviously blacked out when she spoke to her mother on the phone at 2:30AM because she has no memory ofspeaking with her. This blackout continued until she remembered the accused having anal intercourse with her. A. Issue One [63] The first issue is whether the complainant consented to the vaginal and oral sex.

She cannot remember and the accused says theyspoke about sex and she consented. [64] In considering the evidence of the accused, I am required to apply the R v W(D), [1991] 1 SCR 742, (SCC) test. IfI believe the accused I must find him not guilty. If I do not believe him, then I must consider whether I am left with a reasonable doubtabout what happened. If I am unable to decide whom to believe, then I must find him not guilty. [65] I find myself in a position where I do not believe the accused about the alleged discussion with the complainant and her expressconsent to the vaginal and oral sex.

Both parties were very intoxicated. It defies common sense that during this drunken interaction theaccused had the presence of mind to discuss having vaginal, oral, and anal sex with the complainant. Instead, the sex just happened asthey were fumbling and groping each other. [66] However, I do have a reasonable doubt about whether the complainant did not consent to the vaginal and oral sex. The reliability ofthe complainant’s evidence is problematic because there are gaps in her memory because she experienced a blackout.

The accused wasalso very intoxicated, but seems to have been functioning at a higher level of consciousness than the complainant. However, both havememories that establish that they were attracted to each other and engaged in some of the preliminaries to consensual sexual activity. Thecomplainant acknowledged sitting on the accused’s lap and exchanging hickeys and she also acknowledged that she came back to theaccused when she had a chance to leave because she wanted to continue drinking.

There is also M.K.’s evidence about the overheardcomment to “get on top” and her daughter’s apparent lack of concern for her safety. The accused described hugging and kissing thatwent on for about an hour before K.K. and A.B. left. A.B. also said he saw some kissing. [67] There is no issue about whether the complainant had the capacity to consent to the vaginal and oral sex because the complainantsays she was in a blackout. She did not contradict the accused about her mental functioning at that time but says I cannot remember. Theother evidence suggests she was functional and had an operating mind before the sex.

When the complainant argued with K.K. she had a functional mind, and when she left the bedroom and interacted with R.R. she had a functional mind. As Green J. stated in MT: Moreover, the court cannot conclude incapacity to consent from the mere fact that the complainant is effectively falling down drunk. The courts have consistently held that this alone is insufficient to confirm whether the complainant had an operating mind.

In order tomake a finding of incapacity to consent, the case law suggests that the court must be able to identify evidence that establishes, beyond areasonable doubt that the complainant’s cognitive capacity is sufficiently impaired by the consumption of alcohol so as to make herincapable of knowing that she is engaging in a sexual act or that she can refuse to engage in the sexual act.

(i). Disposition of Issue One [ 68 ] Therefore, I conclude the Crown has failed to prove that the complainant lacked the capacity to consent to the vaginal and oral sex. B. Issue Two [ 69 ] The second issue is whether the complainant consented to the anal sex. Her evidence was that she was in a blackout until she remembered the accused on top of her. She said: The next thing I remember after blacking out was [D.C.] was on top of me and he was screaming at me.

And I remember trying to fight him off but for a while I couldn't get him off and then - - [ 70 ] She then gave very detailed evidence about how the accused had anal intercourse with her. The evidence on the anal sex is on a different level because the complainant had some memory of it. She testified at the top of page 16 of the transcript: When he was on top of me he was holding my legs and kind of pushing me down and forced his penis up my bum, even though I told him not to. But he did it and it hurt. I can still feel the pain, I can still feel how it felt to sit down for the rest of that week.

I don't like to think about it and for a long time I didn't think about it. And every time I have to come here that's what has to come back. And I don't like having to think about it, it's hard. [D.C.] used to be my friend and I never thought that he would do that to me. [ 71 ] When asked if the accused said anything she stated: Oh, I remember just before he shoved his penis up my bum he told me that if I didn't fuck him he was gonna fuck me up and I was scared. I've never seen [D.C.] look that way ever in my life.

I've known him for almost all of my life and I've never ever seen him look so angry. [ 72 ] The accused testified that the complainant consented to the anal sex as well. As a result, there is a direct conflict in the evidence about the anal sex that creates a credibility issue. [ 73 ] In addition, I must consider that the complainant’s evidence is inconsistent with the admitted fact from the sexual assault kit that there was no semen found in her anus and no bruises, tearing, marks or injuries.

Given her testimony that her bum hurt for a week, it is a reasonable inference that there should have been some evidence of bruising or tearing. [ 74 ] How credible is this evidence of the complainant and where am I left after applying R v W(D) ? [ 75 ] The complainant was very animated and emphatic during the first part of her testimony. At first she seemed very sure of her evidence. However, as she continued her answers do seem indicative of a person trying to reconstruct what happened that night, as suggested by Defence Counsel.

The complainant spoke to other people to come up with what she thinks happened and maybe convinced herself that something happened the way she reconstructed it. [ 76 ] In the final analysis, she seems to have been very unsure about what actually happened because at page 17 she concluded with: I don't know if I blacked out again while he was doing it in my bum or if I stayed conscious.

[ 77 ] Once again, after applying R v W(D) , I find myself with a reasonable doubt about whether the complainant did not consent to the anal sex. [ 78 ] There is no issue that the complainant had the capacity to consent to the anal sex. Her evidence was detailed and indicative of an operating mind. (ii). Disposition of Issue Two [ 79 ] Taking all the evidence into account, the Crown has failed to meet the burden of proof on the complainant’s lack of consent or her capacity to consent and I find the accused not guilty of the charge of sexual assault. Dated at the City of Iqaluit this 24th day of July, 2018 ___________________ Justice E. Johnson Nunavut Court of Justice