When is someone legally too drunk or high to consent to sex?

And what happens when they can’t remember what took place?

A jury wrestled with these questions over four days last week before finding Gavin MacMillan, 44, and Enzo DeJesus Carrasco, 34, guilty of sexually assaulting and drugging a 24-year-old woman over several hours at their downtown Toronto bar in 2016.

They aren’t the only ones to struggle with the answer. Judges, academics and legislators continue to debate how we should determine whether someone had the capacity to consent, often without much evidence of a complainant’s state at the time.

Some say the current legal standard in Ontario, which was used in the College Street Bar trial, is too low and doesn’t do enough to protect people in vulnerable, highly intoxicated states.

“This is going to have to be decided by the Supreme Court pretty soon. There isn’t a science. Judges look at the circumstances and pull it out of their hat,” said defence lawyer Angela Chaisson. “It’s really tricky.”

The College Street Bar trial shows how difficult it can be for a jury to decide where the line on capacity to consent is while a complainant is conscious, and demonstrates why experts say the current law offers little guidance.

What evidence did the jury hear?

The woman, now 27, testified she could remember only hazy bits and pieces from the night and described feeling like she was in a dreamlike state, her vision distorted as if she was looking through a fishbowl.

“I don’t remember any of that, so how could it have been consensual in any way,” she said, after hours of being cross-examined.

Unusually, her memory — or lack of memory — was far from the only evidence the jury had.

The jury saw several hours of footage from the bar’s eight security cameras that showed the woman drinking, including downing three shots in 10 minutes and taking several lines of cocaine. Crucially, the video showed almost all the interactions between her and the two men that took place that night, not just the time immediately before the start of the sexual activity, as is more typical of cases that may have video evidence from hotel or bar cameras.

In court, after MacMillan was shown the video of the complainant stumbling around the bar 20 minutes before the sexual acts started, prosecutor Rick Nathanson posed him a scenario:

“If you were behind that bar and were seeing what you just saw … and she pulled out her car keys and said, ‘Have a good night, I’m driving home now’ — you would never let her leave.”

DeJesus Carrasco’s lawyer asked him to evaluate the complainant’s sobriety using the province’s Smart Serve criteria for determining when someone is too drunk to serve more alcohol — slurred speech, glassy eyes.

An emergency room doctor testified the woman’s appearance in the footage suggested her “executive function” would have been seriously impaired while she was conscious; her muscle tone and limpness suggested she was at or near unconsciousness during some of the sexual activity.

A toxicologist testified about symptoms, including memory loss, that could manifest at different blood alcohol ranges, with the caveat that everyone processes alcohol differently.

But being visibly too drunk to drive, unable to walk steadily, memory loss or even vomiting are not clear indicators of incapacity under the law.

And expert evidence, including from toxicologists, is often unhelpful as they can only suggest what is possible in general terms based on the evidence, but can’t say what actually happened with a specific person, Chaisson said.

MacMillan and DeJesus Carrasco were convicted of gang sex assault and drugging to facilitate a sexual assault. However, the jury acquitted DeJesus Carrasco on a charge of sexual assault from earlier in the night. Jurors were also unable to reach a verdict on a charge of sexual assault for after he left the bar with the complainant the next morning, and could not reach a verdict on the charges of forcible confinement both men faced.

Since jury deliberations are secret and they do not provide reasons for their decisions, it will be up to a judge to find if the woman had not consented, was unconscious, or lacked capacity while conscious.

What is the current state of the law?

The only clear line is unconsciousness.

As of Dec. 18, 2018, the Criminal Code explicitly states that an unconscious person cannot consent to sex.

This does not mean a conscious person cannot lack capacity to consent — but that line is far less clear, says law professor Elaine Craig, who recently examined the last 10 years of developments in the law around capacity to consent.

Craig, a professor at Dalhousie University’s Schulich School of Law, said she found a troubling trend has continued. Most cases in which a complainant is found to lack capacity to consent still involve her being asleep or unconscious.

“Even women who are falling down drunk, who are vomiting on themselves, who are slurring their words are not found to lack capacity,” she said.

The current legal test for capacity to consent comes from a Nova Scotia Court of Appeal decision that ordered a new trial for a Halifax taxi driver acquitted of sexually assaulting a severely intoxicated passenger. The court found that the trial judge ignored a substantial amount of circumstantial evidence and wrongly equated incapacity with unconsciousness.

The 2018 appeals court decision, written by Justice Duncan R. Beveridge, cites a Supreme Court of Canada decision establishing that consent means the conscious consent of an operating mind.

“This begs the question: what constitutes an operating mind? Comatose, insensate or unconsciousness cannot qualify … Mere awareness of the activity is also insufficient to ground capacity where the trial judge accepted that the complainant was ‘out of control’ and ‘not able to say no’ due to the involuntary ingestion of drugs,” Beveridge wrote.

However, he specifically rejected the requirement that a complainant must have the cognitive ability to weigh the risks and consequences of agreeing to engage in a sexual act — an approach that has been used by courts in B.C. — as going “too far.”

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He said the test, which the Ontario Court of Appeal adopted in 2019, and which the College Street Bar jury was told to use, should be:

Has the Crown proved beyond a reasonable doubt that the complainant did not have an operating mind capable of appreciating what the nature and quality of the sexual acts were, knowing the identity of their sexual partner or partners, or understanding they could say no.

The Ontario Court of Appeal has said that memory loss, proof of drunkenness or loss of inhibitions don’t necessarily mean a person lacks capacity to consent; at the same time, having the ability to walk, make a phone call or speak does not necessarily a person lacks that capacity.

The two appeal court decisions found that only a “minimal capacity” is needed to consent, Craig said. “A woman who is aware enough to understand the very basic physical act that is occurring and who is doing it will be found to have capacity.”

Are legal reforms coming?

Possible changes to law around capacity to consent have been discussed in Parliament since 2017.

Last year, based on the submissions of sexual assault law experts and the Women’s Legal Aid and Action Fund (LEAF), Sen. Kim Pate proposed amending the Criminal Code to include a test for incapacity that would include being able to understand the risks and consequences of sexual acts.

The amendments did not pass in the House of Commons in December 2018, with both the Liberals and Conservatives voting against them.

“In short, the proposed changes are well-intentioned, but will not achieve their aim and, in fact, carry great risk of unintended consequences in what is a difficult, yet critical area of law,” then Minister of Justice Jody Wilson-Raybould said at the time. “Sexual assault law is too important to leave any room for error. If the definition of incapacity is to be provided, it is imperative we get it right.”

The government continued consultations on capacity to consent in May 2019, but no public reports are available.

“The Minister’s Office is continuing to review the input received from the May 2019 consultations, and consultations are ongoing,” said a spokesperson from the Department of Justice Canada.

In an email, Pate said she hopes the amendments will eventually be adopted.

“The publicly available committee meetings and debates relating to Bill C-51 demonstrated a clear consensus among sexual assault law experts in favour of the amendments and a clear understanding that the current wording of the law leaves women at risk,” she said.

Craig also said she hopes either Parliament or the Supreme Court of Canada will clarify the issue soon.

The current leading decisions “set what I think is an unacceptably low standard for capacity,” she said, noting their standard for capacity wouldn’t include if the complainant was “sufficiently sober that she could insist on a condom or ask questions about sexually transmitted infections.”

The decisions also offer little help to trial judges grappling with cases involving extremely intoxicated complainants, she said, and the result is that courts will continue to find that, unless the complainant was unconscious or asleep, she had the capacity to consent.

Chaisson agrees the confusion around what constitutes incapacity leaves judges, juries, complainants and accused in the dark about what the law is.

“The fact that operating mind isn’t defined in the Criminal Code is really problematic,” Chaisson said. “You can be an active participant in sexual activity and even have an orgasm and not be capable of consenting.”

For someone seeking consent, she said the reality is it may be hard to know, especially with a stranger, how alcohol, drugs or a combination of them are affecting them.

“You have to take positive steps to get a strong and enthusiastic yes,” she said. “Otherwise you are running a big risk.”

There is a broader policy question to be asked about whether the law as it currently stands lines up with societal standards, Craig said.

“We need to re-examine whether we think it is morally repugnant and worthy of criminalization to engage in sexual conduct with profoundly intoxicated women.”