Two men are guilty of sexually assaulting and drugging a 24-year-old woman over several hours at the College Street Bar in downtown Toronto three years ago, a jury found Saturday.
The jurors could not agree on whether the men forcibly confined the woman, and were also deadlocked on a second count of sexual assault against one accused, Enzo DeJesus Carrasco, but acquitted him outright on a third count of sexual assault. They convicted Gavin MacMillan and DeJesus Carrasco of other matters on their fourth day of deliberation.
The owner of the College Street Bar, MacMillan, 44, and bar manager DeJesus Carrasco, 34, had been charged with gang sexual assault, forcible confinement and using drugs — alcohol and cocaine — to facilitate a sexual assault. DeJesus Carrasco was charged with two additional counts of sexual assault, accused of repeatedly penetrating the complainant with his fingers when they were alone at the bar without her consent, and of raping her at his apartment after they left the bar in the morning; jurors acquitted him of the former and could not reach a verdict on the latter.
Since the complainant said she could remember little about what happened on the night of Dec. 14, 2016, the central evidence in the case was several hours of graphic video obtained from the College Street Bar’s security cameras. The video, however, does not have audio, and what can be seen on it was described in dramatically different ways by the Crown and defence.
The defence said the video shows the two men sexually dominating the complainant at her explicit request. They said she then faked her memory loss and lied about being sexually assaulted because she didn’t want her boyfriend to see her bruises and find out she cheated.
The Crown argued the video shows a woman being given alcohol and cocaine until she was disoriented and hovering in and out of consciousness, then being overpowered by the two men and forced to perform painful and humiliating sexual acts over several hours.
The jury reported earlier Saturday that it had come to verdicts on four counts but was deadlocked on two others. Superior Court Justice Michael Dambrot told the jury “it is desirable they come to a unanimous verdict on all counts — no other jury will be in a better position than you are.” However, he said, if the jurors simply could not come to unanimous verdicts on all the counts it would not reflect badly on them as long as they have made their best effort.
In addition to their question about reaching a unanimous verdict on all counts, the jury asked a question about the charge of forcible confinement. They wanted to know how long would constitute a “significant period of time” when it comes to being physically restrained. Dambrot told the jury it meant “more than a momentary period” and that several momentary instances of physical restraint would not qualify.
On Thursday, on the morning of their second day of deliberations, jurors asked Dambrot to clarify how to determine whether the complainant was consenting. They were instructed that consent is the “voluntary agreement of the complainant, not verbally, but in her mind, to engage in the sexual activity in question.” Jurors asked how they could know what was in the complainant’s mind without speculating. They also wanted to know if the judge could clarify what consent would look like, noting their instructions instead gave many examples of what it doesn’t look like.
Dambrot told them it would not be speculation to make “common sense” inferences from all the evidence in the case, including the complainant’s own testimony that she was not consenting, to determine what was in her mind.
The trial is one of several in recent years that show the challenges posed when a complainant may be too intoxicated to consent but has little memory of what happened. Such cases often rely on the testimony of other witnesses or video.
In this case, the jury watched video footage from the time the complainant entered the bar at 7:30 p.m. on Dec. 14 — a Wednesday — until she left just before 6 a.m. the next morning with DeJesus Carrasco.
The complainant testified she has a hazy memory of the night, and could only recall bits and pieces of what happened. She said she did remember being forced to perform oral sex on MacMillan, being penetrated by both men and wanting desperately to leave but her body not co-operating.
The defence argued she was faking her memory loss to avoid answering difficult questions.
Both MacMillan and DeJesus Carrasco testified in their defence and said the sexual activity was entirely consensual and they had no concerns about her being too intoxicated to consent.
Dambrot instructed jurors that they could find the men guilty of gang sexual assault if they found the complainant was not consenting, too intoxicated to consent or unconscious at any moment during the several hours of sexual activity that night. The jurors did not have to agree on the same moment or reasons, as long as they all found one that satisfied them beyond a reasonable doubt.
The complainant would not have capacity to consent, Dambrot said, if she was intoxicated enough not to know the sexual nature of the act, the identity of her partner or partners or that she had the right to say no.
“Mere proof of intoxication does not in and of itself negate capacity to consent,” he said.
If the jury found the complainant was unconscious at any point, she would automatically lack capacity to consent. Both accused have said she never lost consciousness.
The jury was also told to consider whether the accused could have an honest belief that the complainant was consenting and whether they took reasonable steps to determine she was consenting. Dambrot noted a reasonable person would take more care in ascertaining consent before invasive and dangerous sexual activity with a stranger.
The complainant had been shown brief clips of the video by the Crown prior to the trial, so that she would not have to see them in court for the first time, prosecutor Rick Nathanson said in court. He said it was extremely difficult to decide how much it was necessary to show her, given that she cannot remember much of it and found it extremely upsetting to watch.
When she saw a clip of her staggering through the bar and crashing into tables, she said it was clear why her memory was so impaired.
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“That right there itself — how would I remember that?” she said, testifying via video from another room in the courthouse.
“Obviously I wouldn’t remember that,” she said. “It looks really messed up.”
A jury does not give reasons for its verdicts and jurors’ deliberations are kept secret by law, making it impossible to know what evidence they relied on to come to their decision.