Proving Lack of Consent
The Cab Driver – Failing to Prove Lack of Consent
A controversial case is before an appeal court in Nova Scotia. When reading the facts please take into account this proposition.
The Crown have to prove beyond a reasonable doubt that the complainant did not consent.
Here are the facts:
On the evening of May 22, 2015, a young woman went to a bar. Her last memory at the bar was drinking two tequila shots and a vodka-and-cranberry mixed drink. Her next memory was speaking to a police officer. She does not recall if this conversation happened in an ambulance or at the hospital.
Other evidence (none of which the complainant remembered) showed that she was prevented from re-entering the bar at one point because of her level of intoxication, she also had a fight with her best friend, sent several text messages to her friends (and therefore was able to carry out a conversation) and hailed a cab.
A police officer came upon the parked cab she was in naked from her breasts down and the cab driver had her urine soaked underwear and pants in his hands.
Based on her alcohol level (220 mg) an expert said her short term and long-term memory would be affected but she would still be able to interact with others.
The trial judge found the cab driver not guilty of sexual assault. His reasoning was that a drunk person can consent to sexual activity and although she may not remember today what happened at the relevant moment he had no other evidence to help him determine what did happen at the relevant time. “But I do not know whether [cab driver] removed her pants at her consent, at her request, with her consent, without her consent, I don’t know.”
Analysis
Drunkenness is not the same as incapacity and a drunken consent is still a valid consent (see R. v Jensen (1996) 106 CCC3d 430).
It is very frustrating that there is a factual gap in this case and because alcohol can make people “say and do strange things” was implausible for the complainant to have stated or somehow consented to the sexual activity in question? Let’s try to imagine how that would have transpired.
She hails a cab and immediately says to the cab driver “park the car, I’m horny, I want to have sex with you”. The cab driver obliges.
Is this scenario implausible or impossible? If the scenario is impossible then the trial judge got it wrong. If it is implausible (that is unlikely but still possible) it may be dangerous to convict.
I’ll update this blog on the Appeal outcome of this case.