After a four-day trial last month, Justice Mara Greene of the Ontario Court of Justice handed down her decision yesterday. The judge ruled the complainant, known only as K.S., was so intoxicated she lacked the capacity to consent to sex. Judge Greene found Moazzam Tariq, 29, guilty of sexual assault.
On July 18, 2015, K.S. was celebrating her 25th birthday with some friends. She later went to another bar where she was introduced to Tariq. They left the bar together and went to the Thompson Hotel where Tariq booked a room. K.S. woke up at 11 a.m. the following day and felt she had been penetrated. She later called the police.
K.S. testified at trial. She told the court she was drunk and remembered very little about that evening. All she remembered was a shirtless man on top of her and she said “no.” Her testimony by itself was not enough to convict Tariq of sexual assault. Tariq did not testify and her evidence was so lacking in detail he could not have been convicted on that testimony alone.
About 20 minutes of video surveillance was put into evidence by the prosecutor. Video from the bar showed Tariq poured vodka down K.S.’s throat on two occasions. He was also seen grinding up against her and slapping her buttocks. The surveillance video also showed the victim having difficulty walking and Tariq had to hold on to her when she went down some stairs.
Video from the hotel showed Tariq and K.S. walking into the building with K.S. holding on to Tariq. Tariq is then seen registering for a room while she leaned against a counter. Video from the elevator showed K.S. leaning against the wall with her eyes partially closed. They both left the elevator at the same floor.
Tariq’s lawyer argued K.S. did certain things on the video that showed she had the capacity to function. K.S. was seen refusing to dance, refusing a drink and texting or making phone calls. The lawyer also argued the lack of motor skills exhibited by K.S. in the video does not equate to a lack of capacity to consent to sex. The trial judge rejected all these arguments.
In her decision, Greene said from all the evidence, she was satisfied beyond a reasonable doubt K.S. did not appreciate where she was or what she was doing. The judge found she was disoriented, confused, did not really understand what was going on around her and was therefore incapable of making a voluntary informed decision. Judge Greene put it another way; “she was completely out of it.”
The judge also found Tariq either knew she lacked the ability to consent to sex or was wilfully blind to that fact. Since he did not testify, the defence of mistaken belief she consented was not a factor.
According to criminal lawyers, video evidence in these types of cases are rare. But when the consumption of alcohol takes place in establishments that have video surveillance, it will likely become more common.
Tariq, who faces a maximum punishment of 10 years in prison, will be sentenced on Dec.1.
