During closing arguments this week at the sexual assault trial of three Toronto police officers, the defence focused on video evidence of a heavily intoxicated person being led into the hotel where the alleged assault took place.

But the person in the video isn't the woman who says she was assaulted. It's one of the men who allegedly assaulted her.

The defence used the video of the falling-down drunk officer as an example of someone who was not capable of consent, and contrasted it with the video of the complainant walking past those same cameras a couple of hours later with no apparent problems.

She was, the defence argued, capable of consent.

Toronto police officers Leslie Nyznik, Joshua Cabero and Sameer Kara are charged with sexually assaulting a female colleague. (CBC)

It was an attempt to create something that Canadian courts struggle with: A black-and-white demonstration of what capacity to consent looks like.

Legal experts say capacity is a foggy concept in Canadian law, left for judges and juries to determine, often after hearing volumes of contradictory evidence.

This case is no different.

Depending on who was in the witness box, the complainant was described during the trial as "sober", "buzzed", "drunk" or, in her own testimony, feeling like she was in a "Star Trek warp" and unable to speak or move.



Justice Anne Molloy has reserved her decision until Aug. 9.

Capacity not covered in new legislation

Despite a recent revamp to the Criminal Code proposed by the Liberal government, the capacity problem in sexual assault law remains, according to University of Ottawa law professor Elizabeth Sheehy.

"It says in the Criminal Code a person may not consent because of incapacity, but it doesn't define what incapacity means," Sheehy said in an interview.

According to Canadian law, an unconscious person cannot consent to sex. Bill C-51, a suite of legal updates, includes a proposal to embed in law a 2011 Supreme Court ruling that prior consent cannot be used to have sex with an unconscious person.

It doesn't define what incapacity means. - Elizabeth Sheehy, University of Ottawa

But when dealing with the varying degrees of incapacity that fall short of unconsciousness, the Criminal Code leaves the courts with less-specific direction.

When dealing with capacity, a court must consider, Sheehy says, if complainants can "appreciate" the situation they're in and the potential risks involved.

Law professor Elizabeth Sheehy says consenting to sex should be a "reasonably informed choice, freely exercised." (University of Ottawa)

But Sheehy says such criteria for determining capacity is not in the Criminal Code.

"That's not a legal standard," Sheehy said. "The judge has to draw that line."

Incapacity due to drugs or alcohol is a common theme in sexual assault cases, including several high-profile prosecutions.

"Clearly, a drunk can consent," Judge Gregory Lenehan said in a controversial acquittal of a Halifax taxi driver Bassam Al-Rawi earlier this year.

Police in that case found the complainant, a 26-year-old woman, passed out drunk and half naked in the back seat of Al-Rawi's taxi. She had urinated herself and her blood alcohol concentration was found to be three times the legal limit.

Judge Gregory Lenehan, seen in 2009 when he was a Crown attorney, wrote a controversial acquittal of a Halifax taxi driver earlier this year. (CBC)

Still, Lenehan found the woman maintained the capacity to consent. "A lack of memory does not equate to a lack of consent," he said in his decision, which will be appealed in November.

'Dreamlike' memory

The complainant's lack of memory played a role in the Al-Rawi acquittal and it is a factor the case of the Toronto police officers.

Sexual assault cases involving drugs and alcohol often meet this challenge, as memory loss and "blackouts" can easily accompany incapacity to consent.

Defence lawyer Peter Ducharme, representing Cabero, called the complainant's fractured memories of the alleged assault "vague and dreamlike."

Two of the accused officers and the complainant in the Toronto police sexual assault trial are seen in video evidence submitted to the court. (Trial exhibit)

The defence repeatedly criticized her account as "unreliable" and "not credible."

But the bigger problem, according to lawyer Loretta Merritt, is that the complainant was conscious during the periods she doesn't remember.

Merritt, who represents sexual assault complainants in civil cases, says that gaps in memory are so problematic because, theoretically, anything could have happened during that time.

"You could have been enthusiastically consenting," Merritt said in an interview.

'Not capable'

Last October in Toronto, another sexual assault ruling that involved an intoxicated complainant made headlines, but this time it was a conviction.

Moazzam Tariq of Brampton was found guilty of sexually assaulting a 25-year-old woman who was, according to Judge Mara Greene, "disoriented, confused … and not capable of making voluntary informed decisions."

It was video evidence that allowed Greene to rule confidently that the woman was incapable of consent.

Moazzam Tariq, shown here, was convicted of sexual assault last year. This surveillance tape was submitted to the court as evidence by the Crown. (Trial exhibit)

Capacity more than 'bare consciousness'

In the trial of the Toronto police officers, it was the defence that relied heavily on the video evidence.

In the most scrutinized clips, the complainant exits a taxi with two of the officers. The woman testified that she had an "excruciating headache" and "tunnel vision" at this time, either a result of the seven or eight drinks she consumed or the administration of a date rape drug.

Video evidence from the trial shows the complainant and two of the defendants arriving at the Westin Harbour Castle Toronto Hotel, where the assault allegedly occurred. (Trial exhibit)

But aside from a small stumble on her first step out of the taxi, the woman appears to walk without difficulty – and with a smile – into the hotel.

Molloy even remarked on her own that the complainant got out of the taxi without holding the door. "That's not easy," she said.

The apparent state of the complainant is nothing like the woman in last October's case.

But Sheehy said that while the video footage is something for the judge to consider, it provides "very minimal" information about the complainant's capacity, which she says requires more than "bare consciousness."

"The mere fact that someone is walking and talking does not mean they have the capacity to consent," Sheehy said.

Contextual capacity

So when does someone lose the capacity to consent to sex?

For some, there are as many answers to that question as there are allegations of sexual assault.

Citing case law, Sheehy said, "It's difficult to think of an activity that is more person- and situation-specific than sexual relations."

The sexual assault trial of three Toronto Police officers has seen its first images of the complainant and the accused in the critical moments directly before and after the alleged incident took place. 3:58

"Sobriety is important," Sheehy said, but courts need to look at other case-specific factors that can affect capacity.

"It's contextual," she said.

In a case like this one, involving multiple accused and a single complainant, power dynamics and the possibility of intimidation should be considered along with a "fairly robust" standard for capacity, Sheehy said.

"When a woman has had seven or eight drinks and is in a hotel room with three men, I think capacity needs to be carefully examined."