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 after deliberating for four days.
The jurors could not agree on whether bar owner Gavin MacMillan, 44, and bar manager Enzo DeJesus Carrasco, 34, forcibly confined the woman at the bar on the night of Dec. 14, 2016 and whether DeJesus Carrasco raped her at his apartment the next morning. They acquitted DeJesus Carrasco on a charge of sexual assault where he was accused of repeatedly penetrating the complainant with his fingers when they were alone at the bar without her consent.
After the jury announced their verdict, both men appeared stunned. MacMillan later wiped away tears.
Crown Rick Nathanson said they are very happy with the result and that the complainant is relieved. “(We are) grateful first to the complainant, I think this is an apt case for the term survivor, who showed tremendous strength and courage through all of this. She seemed more motivated, frankly, out of concern for the community than for herself.”
He also thanked the jury for their hard work in a case that involved “difficult and troubling evidence” and requested that the court ensure they were aware of counselling supports available to jurors.
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.
After the jury verdict, Nathanson sought to have bail for both men revoked. MacMillan was permitted to remain on bail, but under a strict house arrest. DeJesus Carrasco was handcuffed and taken into custody with a bail hearing set next month. He faces two future trials on three counts of sexual assault involving three women.
His lawyer Uma Kancharla said, after the verdicts, that her client maintains his innocence in all the charges and they are considering grounds for appeal.
MacMillan’s lawyer Sean Robichaud declined to comment. MacMillan walked out of the courthouse by the waiting television cameras but did not respond to questions.
A sentencing hearing has been set for the end of January. The Crown has said they will be seeking “significant penitentiary sentences.” The maximum possible sentence for gang sexual assault is 14 years, with the Crown likely to seek a sentence of between four to eight years, said defence lawyer Daniel Brown, who has written a book about sexual assault law and was not involved in the case.
The charges the jury could not reach a verdict on were stayed by the Crown.
During deliberations the jury asked questions about the law around consent and forcible confinement. A jury does not give reasons for its verdicts and jurors’ deliberations are kept secret by law, making it impossible to know what evidence or reasoning they relied on to come to their decision.
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 of it was necessary to show her, given that she cannot remember much of it and she found it extremely upsetting to watch.
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When she saw a clip of her staggering through the bar and crashing into tables at around 11:45 p.m. she said it was clear why her memory was so impaired.
“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.”
The sexual activity began about twenty minutes later.
The jury heard that the woman went to the College Street Bar that night to meet a friend who was doing a bartending course through MacMillan’s Bartender One training school. DeJesus Carrasco said she was flirtatious and making lewd comments, though the exact comments he alleged she made were ruled inadmissible.
The video shows her being served two cocktails and five whiskey shots, though it was disputed how much she consumed and how big the shots were.
She had three of the shots with the two men in the span of ten minutes around 10 p.m.
When the complainant and DeJesus Carrasco were in the bar alone around 10:20 p.m., the Crown alleged he sexually assaulted her by repeatedly penetrating her with his fingers without her consent or while she was incapacitated.
The jury acquitted DeJesus Carrasco of this count of sexual assault.
At around 10:55 p.m. the two left the bar together for about half an hour. DeJesus Carrasco said they got food and then he left the complainant alone with the College Street Bar unlocked while he got a drink at another bar.
When he returned to the College Street Bar several minutes later to meet a cocaine dealer he saw her swaying on the sidewalk outside.
He asked what happened and said she told him in a normal voice: “I’m fine but sometimes the pills screw up my head.” He didn’t ask her what the pills were and it is unknown what the pills are.
They went into the bar at about 11:30 p.m. and the security video shows the complainant staggering into the bar, lurching into a table and sinking into a chair. She remained in the chair barely moving with her head slumped forward for ten minutes. DeJesus Carrasco said she never lost consciousness and continued to ask for cocaine.
He said a text message he sent to the drug dealer shortly before entering the bar that he “had a girl pass out” wasn’t literal, nor was a text to MacMillan that the complainant was “dead dead dead.”
DeJesus Carrasco pulled the complainant over to the bar when the cocaine was ready, slapped her face repeatedly and positioned her head over the cocaine. After this she got up and staggered out of the bar, crashing into tables on her way out. She came back in two minutes later, still walking very unsteadily. MacMillan came back to the bar and the complainant is seen having three lines of cocaine in 13 minutes.
The sexual activity began minutes later at about 12:10 a.m. and continued until shortly before 6 a.m.
The defence argued that the complainant’s inability to walk was only temporary and that she appeared to improve rapidly, showing that her state was not caused by alcohol. They said she was being held up and supported by MacMillan because she wanted to be submissive and controlled, not because she was too intoxicated to stand or hold herself upright on her own.
The video shows the complainant and DeJesus Carrasco leaving the bar shortly before 6 a.m. They both got in a taxi, which she said she thought was taking her home, but which actually took them to his basement apartment. She said he raped her in his bedroom, though her memory of that time is hazy and she had no memory of anyone being in the apartment. DeJesus Carrasco said there were two other people in the apartment at the time and that she was the one who wanted to have intercourse.
The jury was unable to come to a verdict on this charge, which has now been stayed.
The complainant called 911 to report being sexually assaulted later that day. She testified that there has been lasting damage to her knees and jaw from what happened to her.