How video like this can be 'very powerful' evidence in sexual assault trials
'Any kind of corroboration for a witness who is under the influence is helpful,' ex-prosecutor says
The black and white video offers a bird's-eye view into what happens in the wee hours at a Toronto club.
A group of men order bottle service and then someone passes a shot to the woman one of them has brought to the booth.
Within 15 minutes, the video shows Moazzam Tariq pour vodka in the woman's mouth three times, slap her butt and then help her to her feet, supporting her as she stumbles across the dance floor and out of the Everleigh at 2:35 a.m. on July 18, 2015.
It looks like a typical night at any downtown club.
What's unique about this video, however, is that it was a key piece of evidence in Crown prosecutor Jill Witkin's case against Tariq. The Brampton, Ont., man was charged with sexual assault two weeks after the encounter with the woman, after she reported to police she had no memory of consenting to sex.
On Friday, Tariq was found guilty.
Since alcohol can impair a witness's reliability — their ability to recall exactly what happened — the video provided an independent view for Judge Mara Greene.
In her ruling Friday morning, Greene said the victim appeared "disoriented, confused and incapable of making voluntary, informed decisions."
During the trial held in Toronto in August, the complainant testified that she had a vague memory of someone, shirtless and on top of her in the hotel room and that she said, "No."
At the hotel
Witkin also submitted as evidence in the trial surveillance video taken from the Thompson Hotel at 2:37 a.m. in which you see Tariq and the then 25-year-old complainant walk into the hotel. His arm is wrapped around her waist and she's leaning heavily against him as the pair enters.
Tariq, 29, checks them into the hotel and they get on the elevator. Video taken inside the elevator shows the woman slumped against the wall, her eyes half open.
Both the prosecution and the defence agree about what happened next. The pair went into a hotel room. In the morning, the woman awoke and "felt violated," Witkin told the court. The results of a sexual assault exam found semen in her vagina that matched that of the accused, according to evidence submitted by the Crown.
Defence lawyer Danielle Robitaille, who helped represent former CBC broadcaster Jian Ghomeshi during his sexual assault trial earlier this year, does not disagree that sex happened.
The question, however, is whether the woman was too intoxicated to be able to consent, something that Witkin argued the video shows and Robitaille disputed.
Reliability and credibility
Ottawa criminal lawyer Michael Spratt said he has never seen this amount of video evidence — almost a half an hour's worth — introduced at a hearing to try to prove that someone could not legally consent to sex.
But Spratt said he expects courts to start seeing more video introduced as evidence, especially in cases where alcohol or other factors might affect a witness's reliability.
"It can be very powerful and very corroborative evidence, depending on what it shows and what inferences can be drawn," he said.
The complainant in this case was open about not having any memory of the events leading up to the encounter in the hotel room.
"She was not one of those witnesses who had a blackout and tried to fill in the blanks in her memory," Witkin said. "She's very fair about what she remembered and what she didn't."
Former prosecutor Karen Bellehumeur said that in this case the Crown was essentially using video evidence to fill in the gaps.
"When you have to rely on a witness who is intoxicated, there's always the argument that they're not reliable," said the lawyer who now specializes in civil litigation in sexual abuse cases. "Any kind of corroboration for a witness who is under the influence is helpful."
Legally, the prosecution still has to prove that there was an absence of consent, but there's "a shift" in attitude from "no means no, to yes means yes," Bellehumeur said.
Accused didn't testify
Tariq did not testify during the four-day trial in provincial court.
His lawyer said in her closing argument that when it comes to consent, the judge needed to consider a complainant's ability to make conscious decisions — and not outward symptoms of intoxication.
"There is no requirement in law that a complainant be able to walk a straight line to consent to sex," Robitaille told the judge. "The requirement is that they appreciate the sexual nature and they have the ability to decline if they wish."
Robitaille had argued that the video shows the complainant was able to send text messages and keep track of her phone and purse, which indicates she was functioning at a level where she was aware of what was happening.