Criminal Law

Cognitive functioning key in 'incapacity to consent' cases: Neuberger

A Superior Court judge has found a man not guilty of sexual assault after criminal lawyers Joseph Neuberger and Stacey Nichols extensively cross-examined all Crown witnesses during a five-day trial.

“When dealing with sexual assault cases where the Crown alleges ‘incapacity to consent’ it is extremely important to focus on the surrounding evidence and to understand cognitive functioning, and that consent to intimate contact requires a minimal level of cognitive functioning,” Neuberger tells

“Based on all the evidence, the court found our client not guilty of the charge of sexual assault.”

Their client was charged after he attended a party in Barrie at a woman’s home with whom he connected on a dating site.

Neuberger, partner with Neuberger & Partners LLP, explains that during the party, his client, D.I., and the woman had sexual intercourse in D.I.’s car. Afterwards, and as D.I. was exiting the car, police arrived and an officer noticed that D.I. appeared highly intoxicated. The officer thought D.I. was going to attempt to drive.

“When the officer looked into the car, he found the complainant passed out in the car,” Neubeger tells the online legal news service. “Several police and paramedics attempted to wake up the complainant but she was unresponsive. She was removed from the car, placed on a stretcher and taken to hospital. D.I. was charged with sexual assault.”

Neuberger explains the Crown pursued the prosecution on two grounds. First, the complainant was heavily intoxicated and D.I. knew she was heavily intoxicated.

“Her blood-alcohol readings were between 254 and 295 mg per 100 millilitres of blood — a very high level,” he says. “Thus the Crown argued that at such a high level of intoxication, she lacked the ‘capacity’ to consent to sexual activity and D.I. knew this or was wilfully blind that he lacked consent.”

Neuberger says the second ground was that the complainant must have passed out during sexual contact in the car and D.I. no longer had consent as per the Supreme Court of Canada’s decision in Regina v. J.R.

“In addition, the Crown relied on an Ontario Court of Justice decision wherein the court stated that because the complainant in that case was passed out and was unresponsive, there was clear evidence that she lacked the capacity to consent,” he says.

Both Neuberger and Nichols cross-examined the Crown witnesses about their observations of the complainant.

The complainant, under cross-examination by Neuberger, admitted she had been drinking excessively for several months leading up to the date of the party.

“In fact, the complainant drank four to five times per week at least 375 ml of rum per night and when drunk was a heavy sleeper,” Neuberger explains. “The complainant admitted to being an experienced drinker who developed a high level of tolerance. During the party, she admitted to being a social butterfly and being able to socialize, talk and have fun. She said the alcohol helped her become more social and enjoy herself.”

However, after a point, she had no memory of the events at the party that night, Neuberger says.

“During my cross-examination, she admitted that she cannot remember if she consented to sexual contact, due to her memory loss,” Neuberger says.

An expert toxicologist testified for the Crown about the blood alcohol levels and the general effects of high levels of alcohol.

"Under cross-examination by the defence, the expert agreed that the pattern of drinking of the complainant is indicative of a 'heavy' drinker and she would no doubt have a higher degree of tolerance," Neuberger says.

"It would be no surprise that she could be functional even while at such a high level of intoxication. More importantly, the expert agreed that just because the complainant was found to be passed out in the car and not responding to police and paramedics, thus in a deep sleep, it does not mean that the complainant could not have been functional 10, 12, 13 or even 15 minutes prior to being found passed out.

"This one important evidentiary point directly contradicts that finding of the court in the case the Crown was relying upon."

Neuberger says the cross-examination of other witnesses showed the complainant was functional and, in fact, was outside the house having a cigarette minutes before the sexual contact, and appeared to smile and be “fine."

"Although the Crown refused to call medical evidence, the defence extracted from the police witnesses that the complainant was released from hospital some two hours later without any treatment for alcohol poisoning or for any distress," he says. "In fact, an hour or so after her arrival in hospital, the woman was awake and talking to hospital staff. Thus, this evidence detracted from the argument that the complainant was in an exceptionally intoxicated state."

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