TORONTO — A teenage girl who was in and out of consciousness and had vomited on herself was too drunk to consent to unprotected sex with another intoxicated teen at a beach party last year, a Toronto judge said in finding the boy guilty of sexual assault.
Both teens had been drinking with friends for some time and had kissed briefly that April 2016 night, and the boy, who was 15 at the time, testified the girl then asked him to have sex with her by some rocks, according to court documents.
She, on the other hand, recalled little of the evening and only learned what happened through text messages and social media the next morning, the documents said.
Friends testified during trial that the girl, who was 14 at the time, was drunk to the point of having difficulty walking and talking, with one friend expressing concern she would choke on her own vomit, it said.
The boy was also drunk but not as much, they testified. He told the court he did not believe alcohol had affected his behaviour but noted a friend had commented on his level of intoxication, the documents said.
In a decision released last week, Justice Kimberley Crosbie said she rejected the boy's version of events and his assertion that he did not believe the girl was too drunk to consent to sex.
The boy was "either reckless or wilfully blind to (the girl's) lack of capacity to consent," Crosbie said.
"They drank while walking to the streetcar and while on the streetcar. Further, when they got to the beach and soon thereafter sat down near the bonfire, they continued drinking. It is simply not possible that he was unaware that she was drinking a lot of alcohol," she said.
What's more, at the time when he claimed to be having consensual sex with her, the girl was in and out of consciousness and had already thrown up, the judge said.
"In these circumstances, it is incumbent on a person to ascertain that they actually do have a voluntary agreement to engage in the sexual activity in question," she said.
Instead, the boy "forged ahead, knowing there existed a danger or risk that she was too drunk," Crosbie said. "Further, he was aware of a need for some inquiry but he did not wish to pursue the truth — he preferred to remain ignorant."
Neither teenager can be identified under law.
Court heard the teens and their friends pooled their money and asked strangers to buy them alcohol at the LCBO, according to the documents. They then made their way to an east-end beach, where they joined a group of older teens at a bonfire.
The boy and the girl had known each other for a few months but weren't close, court heard. They talked at the bonfire and kissed a bit, the documents said.
The girl did not testify at trial but her interview with police was entered as evidence. In it, the girl said she could remember a shadowy figure she believed to be the boy approach her and she thought they had kissed. The next memory she had was of pulling up her pants and seeing him walk away, she told police.
The following morning, the girl woke up to a text message telling her that she and the boy had "had sex," court heard.
She called out to her mother, and the two went to the hospital, court heard. After talking with her mother, the girl decided to file a report with police, which led to charges against the boy.
