Ontario Judge Finds Woman Was Too Intoxicated to Consent to Sex

Written on Behalf of Affleck & Barrison LLP

Following a four-day trial, Moazzam Tariq, a 29-year-old Brampton man, has been found guilty of sexual assault after a judge ruled that his victim was too drunk to consent to sex.

The case raises important questions about when a person becomes incapable of granting informed consent while still conscious. The case is also unique as it involved telling video surveillance footage that became instrumental in the Judge’s final decision.

What Happened?

The complainant testified that she awoke alone in a hotel room. She had no recollection of where she was or how she had gotten there, but that she “felt violated” and knew that she had been penetrated. She reported a sexual assault to police. Within a few weeks, the police arrested Tariq, based on surveillance footage from the nightclub the complainant had been at that evening, as well as from the hotel.

The Crown

At trial, the complainant did not dispute that she went to the hotel with Tariq, however has no recollection of getting there, and very little recollection of the evening. She testified that she had had only a vague memory of someone hovering over her in the hotel room. She recalled saying “no” two or three times, but did not remember saying yes at any point. The results of a sexual assault exam had revealed semen in her vagina matching Tariq’s.

Surveillance video from both the nightclub and the hotel was obtained by the Crown, and played at the trial. The first video shows Tariq pouring alcohol down the complainant’s throat straight from the bottle twice, slapping her on the bottom as he helps her to her feet, grinding up against her, and holding her up as she staggers towards the door. Video from the hotel a short time later show the complainant leaning heavily against Tariq as he escorts her through the front door, and later shows her in the elevator with her eyes half open, slumped against the wall.

Both surveillance videos can be seen here: http://bcove.me/x7bfv2hf

The Defense

Tariq did not testify in his defence. His counsel argued that video does not allow for an accurate assessment of a persons’s state of mind or their decision making capacity. A toxicologist testified that poor motor skills do not necessarily mean that someone is “cognitively impaired’. The defence further argued that the complainant displayed deliberate, conscious decision making while at the nightclub (refusing drinks, and not wanting to dance) as well as an awareness of her surrounding (keeping track of her cellphone and purse, adjusting her clothing). According to defence counsel, this means that deliberate, conscious decision making could also have taken place later that evening in the hotel room where the sex took place. Lastly, defence argued that there is no way to know when precisely the sex took place between the parties’ arrival at the hotel and Tariq’s departure in the morning.

The Judge

Justice Mara Greene found that the complainant lacked the capacity to consent to sex with Tariq, a “virtual stranger”. She further stated that it defied “common sense” that the parties would have stayed awake for hours and then had sex, or that the complainant had fallen asleep, woken up, and then had sex, based on the short time the parties spent together, their lack of conversation, and the complainant’s unresponsive manner.

Justice Greene further stated:

In my view, the only reasonable inference from all the evidence is that [the complainant] was disoriented, confused, not aware of what was really going on around her and not capable of making voluntary informed decisions.

The test for granting informed consent is whether the person in question can understand the risks and consequences of sex and have the ability to realize that he/she can refuse. The threshold is quite high, as only a “minimal cognitive capacity” is required to consent to sex.

In this instance, Justice Greene was ultimately satisfied beyond a reasonable doubt that

…[the complainant] did not appreciate where she was or what she was doing…[she] did not realize she could refuse to go with Mr. Tariq and say no to sexual intercourse.

Moreover, Justice Greene found that Tariq knew that the complainant could not consent, or was wilfully blind to the fact that she could not. However, since he did not testify, there was no basis to make a conclusion as to whether he had a mistaken belief that the complainant had consented to having sex with him.

Ultimately, the video surveillance did not provide sufficient evident to find that the complainant did not consent to sex with Tariq, but was sufficient to establish that she was to intoxicated to have the ability to consent to sex, and that Tariq clearly ignored those signs.

Ultimately, Justice Greene found Tariq guilty of sexual assault. He will be sentenced on December 1.

Importance of the Video Evidence

Certainly in an age of social media, camera phones, and generally increased availability of video footage, this case may set an important precedent.

The introduction of video evidence in a sexual assault case is rare. In this case it played a critical role in establishing reasonable doubt with respect to the complainant’s ability to consent to sexual activity. The Judge relied almost entirely on the surveillance footage to demonstrate the complainant’s lack of capacity to made decisions at crucial portions of the evening.

If you are facing sexual assault or related charges, contact the skilled defense lawyers at Affleck Barrison online or at 905 404 1947. For your convenience, we offer 24-hour phone services and a free confidential consultation. We are available when you need us most.