Eleven jurors are now deliberating whether Gavin MacMillan, 44, and Enzo DeJesus Carrasco, 34, sexually assaulted and forcibly confined a 24-year-old woman over several hours at the College Street Bar in downtown Toronto three years ago.

The jurors were not told that DeJesus Carrasco, the bar’s manager, is set to be tried on three more sexual assault charges involving three other women, all connected to the College Street Bar.

The jurors also did not hear how the trial became increasingly tense outside their presence, culminating in one defence lawyer unsuccessfully asking the judge to recuse himself for bias against the accused.

During the seven-week trial, which centred largely around more than 10 hours of security video from the bar, MacMillan and DeJesus Carrasco testified they had engaged in consensual acts of BDSM after the complainant demanded to be sexually dominated by them over the course of several hours on the night of Dec. 14, 2016.

(BDSM is an acronym covering a range of sexual practices such as bondage and discipline, dominance and submission, and sadism and masochism.)

The Crown argued the complainant did not consent or was incapable of consenting because the two men had given her enough cocaine and alcohol to leave her heavily intoxicated and slipping in and out of consciousness.

The trial is the latest in a series of cases that expose the challenges courts face in establishing when a complainant is incapable of consenting due to intoxication.

Here is what the jurors didn’t hear, and what happens next:

Three other women

To avoid unfairly prejudicing the jury against DeJesus Carrasco, they were not told he is facing two more sexual assault trials involving three more women who came forward after he was charged in connection with the current case.

Two of the three women reported DeJesus Carrasco penetrated them with his fingers in a way the Crown alleges is remarkably similar to the video evidence from the current trial, which neither woman has seen, according to a similar-fact application filed with the court by the Crown.

The similar-fact application and the sex assault charges involving those two women will be heard in a judge-alone trial before Superior Court Justice Michael Dambrot after the conclusion of the current trial.

One of the complainants said that in late November or early December 2016, DeJesus Carrasco came up behind her, kissed her and put his hand into her pants and penetrated her, according to the Crown’s application.

The other complainant said DeJesus Carrasco assaulted her after she gave him a ride home in December 2015. She said he refused to get out of the car until he gave her a kiss. She kissed him on the cheek, but he insisted on a kiss on the lips, she said. She said she did so to get to him leave, at which point he forced his hands into her pants and penetrated her with his finger for two or three minutes, she said.

A jury trial involving a third complainant is set for next spring.

MacMillan, the then-owner of the College Street Bar, does not face any other charges.

The mistrial application

It began with a sarcastic remark by the judge in response to an objection by defence counsel Sean Robichaud after the Crown told the complainant the short video clips of her alleged sexual assault, which he had to show her, would be “difficult to watch.”

“Wonderful,” Dambrot responded to Robichaud’s objection, before allowing the Crown to continue.

Later, with the jury not present, Robichaud criticized the judge’s tone, saying it had a chilling effect on future defence objections. The judge’s response, he said, made the defence appear “monstrous and unsympathetic.” Dambrot acknowledged his sarcastic tone, but said the objection was inappropriate given the graphic nature of the video — even if depicting consensual sex — and the fact it was now being watched by strangers in a courtroom.

“I cannot imagine how that would not be difficult to watch under the circumstances,” he said.

At one point, Dambrot slammed down his mouse and left the courtroom, prompting Robichaud to say he felt intimidated and unable to fulfil his role as defence counsel. Dambrot apologized, but said he did not think it was intimidating for an experienced defence lawyer like Robichaud.

Later in the trial, Robichaud asked for a mistrial after he said Dambrot unfairly and repeatedly interjected during MacMillan’s cross-examination, arguing it showed the judge was biased against the accused. He said MacMillan was simply trying to answer questions completely. He said the judge did not intervene in the complainant’s evidence, even when she gave lengthy and sometimes tangential answers.

Dambrot dismissed the application and said all his interjections were appropriate, including one he made after MacMillan responded to the Crown’s question about whether the complainant was consenting to having her purse removed by saying said she was “very much playing the submissive role and was about to have an orgasm.”

That comment was gratuitous and offensive, Dambrot said, explaining why he intervened to ask MacMillan to answer the question that had been asked.

He told the jury in his final instructions not to infer anything from an occasionally frustrated tone, noting: “we are all human.”

Inadmissible comments about sexual history

Prior to the start of the trial, a hearing was held to determine what evidence of the complainant’s alleged prior sexual comments to the two accused should be admissible. The defence argued MacMillan and DeJesus Carrasco should be able to describe the content of sexual comments, comments about BDSM and comments about a downtown sex club they claim the complainant made early in the night, as well as some of her social media postings.

Justice Dambrot ultimately ruled her social media postings were not admissible, and that the comments could be described in general as lewd and disruptive. He said the accused could not testify about what they claimed her actual words were.

The comments add nothing to whether she consented to sexual activity later that night, Dambrot found. He also found that admitting any evidence about consensual “unconventional sex” would not be in the interests of justice because it could deter reporting by complainants, would fail to remove discriminatory beliefs and bias from the fact-finding process, and could prejudice a complainant’s personal right to dignity and privacy.

Loading... Loading... Loading... Loading... Loading... Loading...

Despite this, DeJesus Carrasco repeatedly referred to things he was not allowed to talk about during his testimony and cross-examination — resulting in warnings from the court to stop.

What happens next

The jury is now deliberating on three charges for both men: gang sexual assault, forcible confinement and using drugs to facilitate a sexual assault.

They are also deliberating on two more sexual assault charges for DeJesus Carrasco. He is accused of repeatedly penetrating the complainant with his fingers while they were alone at the bar, and of raping her at his apartment after they left the bar in the morning of Dec. 15, 2016.

At issue is whether the complainant consented to the sexual activity and whether she had the capacity to consent.

Both men testified in their defence and said the complainant was vocally consenting, conscious and clearly capable of consent throughout. They said she was the one who proposed the dominant-submissive dynamic and specifically asked to be treated roughly and to be held up and moved around. In closing arguments, the defence suggested she lied about the sexual assault to avoid her boyfriend finding out she cheated on him and because she would be embarrassed if her friends found out about a threesome.

The Crown argued the video evidence shows the complainant being forcibly confined during a lengthy and repeated sexual assault, which the perpetrators facilitated in part by giving her stupefying drugs, specifically alcohol and cocaine.

The jurors do not need to agree on when the complainant did not consent or could not consent to make a guilty finding, so long as they all find at least one moment that satisfies them beyond a reasonable doubt, Dambrot told the jury in his instructions on the law.

The test for determining capacity to consent to sexual activity, Dambrot said, requires the complainant being intoxicated enough not to know the sexual nature of the act, the identity of her partner or partners, and that she had the right to say no.

“Mere proof of intoxication does not in and of itself negate capacity to consent,” he said.

If the jury found she was unconscious at any point, which the Crown argues she was shortly after the sexual activity began and during some of the early sexual activity, she would automatically lack capacity to consent. Both accused have said the complainant never lost consciousness.

How much alcohol and cocaine the complainant had that night is disputed. The Crown said she had two cocktails and five shots, including three whiskey shots in the span of about 10 minutes. DeJesus Carrasco said the shots were small and said she did not finish either cocktail. The complainant can be seen taking two or three lines of cocaine in 10 minutes shortly after she is having trouble walking and before the alleged gang sexual assault began. The Crown suggested she had seven or eight lines over the course of the night.

The main evidence for the jury to consider is the bar’s surveillance video which documents most of the interactions between the accused and the complainant from when she arrived at the bar at 7:30 p.m. to see a friend doing a bartending course until she left with DeJesus Carrasco just before 6 a.m.

The complainant testified she has a limited, hazy memory of that night, but said she remembers bits and pieces about what went on, including being forced to perform oral sex on MacMillan and of being simultaneously penetrated by the two men against her will. She said she did not consent to any of the sexual activity that occurred.

The video shows the complainant left the bar with DeJesus Carrasco around 10:45 p.m. and came back in around 11:30 p.m. staggering and swaying. She then slumped over in a chair for about 10 minutes.

DeJesus Carrasco said he didn’t know how she got that way, claiming he’d left her by the College Street Bar and had gone to get a drink at a nearby bar. He said she told him without slurring her words: “I’m fine really but sometimes the pills screw up my head.”

He said he did not know what pills she was talking about, but that she said she was tired and continued to ask for cocaine.

The alleged sexual assaults began shortly after midnight after the complainant had two or three lines of cocaine. The defence has argued the video shows her condition rapidly improved even before she took the cocaine, so her inability to walk could not have been caused by alcohol. A doctor called as a Crown expert witness testified the complainant continued to appear heavily intoxicated at this time and unable to stand without help.

The jury deliberations began Tuesday evening. There are 11 jurors instead of the usual 12 because one juror could not return for medical reasons.