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The complainant said that was when he regained his memory. Hetestified he blacked out around 11:30 p.m. and awoke to Anderson anally penetrating himapproximately four hours later. He said he has no memory of that time period.

Rothery pointed to the man’s testimony during cross-examination that because of that memory gap, it’s possible he initiated the sexual encounter, and had not remembered.

Crown prosecutor Katharine Grier argued at trial that the man did not have the capacity to consent, given his level of intoxication. Rothery found that while the man was heavily intoxicated when he passed out around 11:30 p.m., his level of intoxication would have substantially decreased by the time the sexual activity took place between 2:30 and 3:30 a.m.

“I think if it had happened at 11:30, she would have determined he was too intoxicated to give consent,” Grier said outside court, noting that neither the Crown nor the defence called any evidence with respect to alcohol leaving the body.

She said she was proud of the complainant, adding it’s important for people to know that the judge believed his testimony.

“Even when you have a situation such as here, where everybody accepts that the victim was unconscious for a large portion of this, that still leaves a doubt because nobody knows for sure what happened,” she said.

Every witness, including Anderson, testified the complainant was so drunk he was slipping under the hot tub water and had to be carried into a downstairs bedroom. He was upset and crying after he “came to” in an upstairs bedroom not because he was worried about having a one-night stand, but because he was distraught about the questionable sex, Grier argued at trial.