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But Lenehan said, while she was unconscious when Const. Monia Thibault found her, and therefore unable to consent, the judge said it is “unknown” when she passed out, and “this is important” as she may have consented to the encounter before losing consciousness.

He acknowledged that someone “who is unconscious or is so intoxicated … as to be incapable of understanding or perceiving the situation that presents itself” cannot provide consent under Canadian law.

“This does not mean, however, that an intoxicated person cannot give consent to sexual activity,” Lenehan said. “Clearly a drunk can consent.”

A spokesperson for the Crown prosecutor’s office said they are currently reviewing the ruling and considering filing an appeal.

The complainant’s blood alcohol level was between 223 and 244 milligrams of alcohol in 100 millilitres of blood, and an expert testified this would mean she was drunk enough to both forget events and lose track of her surroundings. But the judge cited a forensic expert and said she may have been “capable of appearing lucid but drunk and able to direct, ask, agree or consent to any number of different activities.”

Her DNA was also found on Al-Rawi’s upper lip, but the judge suggested there were reasonable means other than assault by which it might have gotten there, perhaps because Al-Rawi “intentionally or absent-mindedly” wiped his upper lip after handling her urine-soaked pants.

A lack of memory does not equate to a lack of consent

Lenehan said Al-Rawi had a “moral or ethical” duty to get the complainant home safely, and he “is not somebody I would want my daughter driving with or any other young woman.”