While two men allegedly sexually assaulted a 24-year-old woman in a closed bar over several hours, she appeared seriously intoxicated, went in and out of consciousness and lacked the ability to make deliberate decisions, an emergency room doctor and expert witness for the Crown testified this week.
“She is basically dead weight,” Dr. Kari Sampsel testified about one point in the video at 12:40 a.m., when she said one of the men appears to be holding the complainant up on her knees only by gripping her hair.
During sexual acts involving both men the complainant appears to be unconscious or on the verge of unconsciousness, with her right arm and hand appearing loose, as it would be if a person was sleeping, she said. Her muscles appear to ripple and move in a way that is difficult to do “unless you are very, very incapacitated or unconscious,” Sampsel said.
Sampsel, an emergency room doctor at the Ottawa Hospital and medical director of the hospital’s sexual assault centre, told the jury she watched the 10-and-a-half hours of security footage from the Little Italy bar in order to form her opinion about the complainant’s level of intoxication and cognitive capacity over the course of the night.
The trial is focused on both whether the complainant consented and whether she had the capacity to consent. Her identity is protected by a publication ban available to sexual assault complainants.
Gavin MacMillan, 44, and Enzo DeJesus Carrasco, 34, have pleaded not guilty to charges of gang sexual assault, drugging to overpower and forcible confinement. MacMillan was the owner of the College Street Bar in Little Italy and DeJesus Carrassco was the manager at the time of the alleged sexual assaults on Dec. 14 and 15, 2016, according to an agreed statement of facts.
The jury has viewed the entirety of the security footage from inside the bar, from 7:30 p.m. when the complainant arrives to meet a friend attending a bartending course run by MacMillan, until she leaves the bar before 6 a.m. with DeJesus Carrasco. The Crown alleges DeJesus Carrasco took the complainant to his apartment where he sexually assaulted her.
The complainant, who is not from Toronto and was staying with a friend, went to the hospital that afternoon and made a police report. The trial has heard from the sexual assault nurse who conducted an examination of the complainant, documenting bruising and injuries. The defence has suggested the injuries could be consistent with consensual rough sexual activity.
The complainant has little memory of what happened that night, prosecutor Rick Nathanson said in his opening address to the jury. The video footage, several hours of which could not be shown in open court due to the graphic content and the privacy interests of the complainant, forms the central part of the Crown’s case.
When the complainant walks into the bar just before 7:30 p.m. she appears walking and functioning normally, Sampsel said. An hour later she appears to easily walk down the stairs to the bathroom.
The complainant, her friend and the two accused stayed at the closed bar after the bartending course and her friend left shortly before 10 p.m. After this, the two men gave the complainant three drinks in the span of 12 minutes, ending at 10:08 p.m., according to the Crown. The Crown alleges she’d had about seven drinks at the bar by this point.
Toxicologist Rachelle Wallage testified that, if she’d had seven standard drinks and given height and weight information provided by the Crown, the complainant’s estimated blood-alcohol level at its highest, around 11 p.m., could have been 235-270 mg per 100 mL of blood. However, Wallage noted that in reality, most people reach between 50 to 80 per cent of the estimated range. At 80 per cent, the range would be 188 to 216 mg. At 50 per cent it would be 117-135 mg.
Wallage agreed with the defence counsel suggestion that if the complainant weighed 17 pounds more than the given weight and consumed less alcohol, her blood-alcohol level would be lower.
The legal limit for driving is 80 mg, Wallage said.
At 100 mg, motor and coordination impairment would start to become evident and memory loss can start to occur around 140-150 mg, she said.
Over 200 mg there could be nausea and vomiting, sedation, pronounced motor and coordination issues, memory issues, slurred speech, she said. A rapidly rising blood-alcohol level is more likely to lead to memory loss and blackouts, Wallage said. A blackout or memory loss does not necessarily mean loss of consciousness, she noted.
“A person could be aware at the time but not have recall,” she said.
In the 235-270 mg range there could be loss of consciousness, immobility, pronounced sedation, vomiting, she said.
“It looks like there are times where she gets progressively more intoxicated and loses consciousness and loses her ability to have executive functioning,” Sampsel, the doctor, told the jury. Though the complainant’s level of consciousness improves closer to 6 a.m. when she leaves the bar with DeJesus Carrasco, Sampsel said she may not be capable of high-level executive functioning even then.
She explained executive functioning as the part of your brain that allows you to “make decisions, understand what is going on around you and make choices on what you want to do … not just muscle memory or protective type of things,” she said. These are decisions like catching a particular bus or going to a particular restaurant, she said.
At 10:45 p.m. DeJesus Carrasco is alone with the complainant at the bar and allegedly inserts his hand into the complainant’s pants. Sampsel said the complainant appears to be much more intoxicated than when she first arrived. Sampsel said she appears to walk with her feet wide apart in an unsteady “ataxic gait” and appears to sway and lose her balance, all signs of serious intoxication.
At 11:31 p.m. the complainant can be seen staggering across the bar and unsteadily sinks into a chair and appears to pass out, Sampsel said. DeJesus Carrasco is the only one in the bar with her at the time.
The complainant would not have executive functioning in this state and would likely have an impaired memory, she said.
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At 11:35 p.m., as the complainant still appears to be passed out in the chair, the Crown alleges DeJesus Carrasco texted MacMillan: “she’s dead dead dead, I’m dealing with it.”
He then texts another man urging him to hurry to the bar. The man arrives around 11:36 p.m. and DeJesus Carrasco appears to start preparing cocaine, according to the Crown.
At 11:43 p.m., DeJesus Carrasco takes the complainant’s arm and pulls her from the chair to sit at the bar. DeJesus Carrasco rapidly slaps her face and she does not appear to respond to it which is unusual and indicates she is fairly significantly intoxicated, Sampsel said.
The Crown then alleges he puts her face over the cocaine, though it’s not possible to see if she inhales any.
The Crown alleges the video shows the complainant inhaling cocaine two more times over the next half-hour. MacMillan comes back into the bar area around 11:50 p.m. and the other man leaves shortly before midnight.
Sampsel said that the complainant continued to show signs of serious intoxication and lack of executive functioning during the sexual acts that occur starting at around 12:17 a.m. until MacMillan helps her unsteadily go down the stairs to the washroom at around 1 a.m. She remains in the washroom for a little over an hour.
The Crown alleges MacMillan brought a tray with lines of white powder on it into the washroom on two occasions.
Wallage, the toxicologist, testified that signs of cocaine were found in the complainant’s blood and urine.
Wallage said it is difficult to tell exactly how the effects of a stimulant like cocaine would manifest in combination with alcohol which is a depressant, but it could result in a balancing out of symptoms. Cocaine could reduce the sedating effect of alcohol, she said, but it is highly dependant on factors like amounts and the timing of consumption.
After the complainant leaves the washroom at about 2:12 a.m., she goes into a storage room with MacMillan and sexual activity continues there and later in the bar’s office. Sampsel said that while the complainant appears to smile at some points, plays with a dog in the office, and at around 4:49 a.m., hands a bottle of water to DeJesus Carrasco to open for her, this still does not mean she has the ability to make conscious choices at this point, though she appears less intoxicated.
While ketamine was not found in the complainant’s blood and urine samples, Sampsel testified that the complainant’s apparent high pain tolerance, a reported sense of disassociation from her body and repetitive smoothing of her hair made her wonder if she had ingested the drug.
In cross-examination, MacMillan’s lawyer Sean Robichaud pointed to parts of the video that he suggested show the complainant appearing to make decisions, being responsive to what is going on around her, or showing that she has coordination. At 12:24 a.m. she appears to pull down DeJesus Carrasco’s pants herself and at 2:15 a.m. she appears to undo MacMillan’s pants. Sampsel agreed this would take some dexterity but said, in her clinical experience, even extremely intoxicated people are capable of undressing themselves.
Robichaud also questioned whether Sampsel could be objective in her assessment of the complainant’s cognitive state given her role as a sexual assault educator and a clinician who treats sexual assault victims. He pointed to a tweet sent by Sampsel about the conclusion of the Jian Ghomeshi trial in which she said: “It’s a pathetic but sadly unsurprising day for Canadian justice.”
Sampsel said she tried be as objective as she could, and that she understood her role as an expert witness was to provide the court her opinion based on what she viewed in the video and her relevant expertise as an emergency room clinician.
The trial is ongoing.