IN THE PROVINCIAL COURT OF BRITISH COLUMBIA

[1]           Seyed Nima Razavi Zadeh (“Zadeh”) has been charged that on or about the 11^th of July, 2014, at Vancouver, British Columbia, he sexually assaulted JC contrary to s. 271 (1) of the Criminal Code (the “Code”).

[2]           Zadeh has also been charged that on or about the 11^th day of July, 2014, at Vancouver, British Columbia, that he did administer, or cause to be administered, to JC a stupefying or overpowering drug being Gamma Hydroxybutyrate (“GHB”), a Controlled Substance within the meaning of the Controlled Drugs and Substances Act (“CDSA”).

[3]           Zadeh submitted that there are three principal issues:

[4]           It is not in dispute that JC voluntarily went out on a first date with Zadeh on or about the 11^th day of July, 2014. During the course of the date, Zadeh invited JC up to his apartment. While at Zadeh’s apartment, JC consumed a significant amount of alcohol, including at least two double gin and tonics, and five to six tequila shooters, over approximately two to two-and-one-half hours. All of the alcohol was provided by Zadeh.

[5]           At one point, JC was given a tequila shooter that had a “salty” taste to it.  As the evening progressed, what was described as teasing and challenging behaviour, took place between Zadeh and JC.  JC recalled that at one point following this behaviour, she found herself in the kitchen area on the floor.  While sitting on the floor, Zadeh took her hand, pulled her up and led her into the bedroom.

[6]           JC recalled going in and out of blackouts while in the bedroom.  It was while JC was in the bedroom that she alleges that she was sexually assaulted by Zadeh, without her consent.  The sexual assaults that she recalled included Zadeh performing oral sex on her and penile penetration.

[7]           JC recalled falling into a heavy sleep and awoke at 5:30 AM following which she left Zadeh’s apartment.  JC later contacted the police alleging that she had been sexually assaulted.

[8]           Pursuant to s. 655 of the Code, Zadeh admitted time, date, place, identification, photographs and jurisdictions.

[9]           In addition, Zadeh admitted that there was a lawful search of his apartment on July 16th, 2014.  During the course of the search, a Body Energy Club bottle was seized from the refrigerator in the kitchen.  An analysis of the liquid found in the Body Energy Club bottle established the presence of GHB.

[10]        Excluding continuity in relation to two exhibits with respect to a José Cuervo tequila bottle seized from a Zadeh’s apartment, all other exhibits were admitted. Likewise, excluding the two exhibits with respect to the José Cuervo tequila bottle, there was no contamination with respect to any liquid or other substance.

[11]        Zadeh admitted that the Health Canada Analyst involved in this case, Adrienne Law (“Law”), was qualified as an expert and capable of giving expert opinion evidence with respect to certificate results.

[12]        Zadeh admitted that Melanie Brisson (“Brisson”) was a forensic toxicologist and an expert in the physiology and pharmacology of drugs and alcohol and the effects of drugs and alcohol on the human condition.

[13]        Zadeh admitted that JC was examined by Sarb Sull (“Sull”), a Sexual Assault Nurse Examiner (“SANE”), on July 11^th, 1214.  At that time, Sull drew two vials of blood from JC.  An analysis of the blood did not reveal the presence of GHB, though there was a small amount of Tetrahydrocannabinol (“THC”), indicating a previous consumption of cannabis consistent with occasional use.  Blood and urine samples for JC were negative for ethyl alcohol.

[14]        In July of 2014, JC was a bartender and server at a lower mainland restaurant.  JC met Zadeh a couple of days before July 11, 2014, when Zadeh was a customer at the restaurant.  Zadeh introduced himself as “John”.  He did not provide a last name.  At that time, Zadeh suggested that the two of them get together for a date.

[15]        JC was unfamiliar with Zadeh and asked one of her co-workers if he was “an okay” person.  JC’s co-worker told her that Zadeh was “okay”.  JC then gave her phone number to Zadeh.

[16]        Zadeh left a message on JC’s phone later that day proposing that they go out that evening.  JC was tired and did not respond to that message.

[17]        The next day Zadeh returned to the restaurant when JC was on shift.  At that time it was agreed that they would go out on a date on July 11^th.  JC assumed that they would be going out for drinks and food.  Up to this point, JC had little information about Zadeh’s background, other than: he went by the name “John”; he was a medical student; he had gone hang gliding.

[18]        Following eating a big spaghetti meal around dinner time, JC met up with Zadeh on July 11, 2014, at the corner of Georgia Street and Granville Street. Zadeh told JC that he would be driving a black MX. Zadeh arrived on time and he asked JC what she wanted to do. JC proposed they go for some drinks which seemed to excite Zadeh.

[19]        Because Zadeh was driving, he told JC that he would park his car at his apartment block and they would go out from there.  Once they arrived at his apartment, Zadeh asked JC if she wanted to see his apartment.  JC told Zadeh she did not want to see his apartment and Zadeh responded that he wanted to change his clothes and they would not be long in his apartment.

[20]        Once in Zadeh’s apartment, he asked JC if she wanted something to drink.  JC requested a Bombay Sapphire gin with tonic.  JC described the gin and tonic prepared by Zadeh as a double.  While seated at the kitchen counter, JC recalled Zadeh then poured tequila shooters for both of them.  Though JC did not ask for tequila, she described herself as “open to it.”  JC drank the tequila shooter in one gulp.

[21]        JC described being face to face with the Zadeh while they consumed the shooters. In the following exchange in direct examination, JC described what happened when she was poured the second or third tequila shooter:

[22]        JC recalled that prior to drinking the second or third salty shooter that Zadeh went into a small cubby compartment in the kitchen and he pulled out a plastic like container.  JC recalled asking Zadeh what was in the container but got no response.  JC recalled that Zadeh’s back was towards her when he poured the second or third salty tasting tequila shooter.

[23]        After being at the apartment for approximately one hour, JC recalled sitting on the couch in the living room with Zadeh, when he initiated a kiss that lasted approximately 10 seconds.  JC gave Zadeh the satisfaction of kissing her, though she did not describe him as a “good kisser”.  She was not interested in “taking anything further.”

[24]        JC then went onto the balcony to have a cigarette.  She testified that she turned on the balcony light.  Zadeh followed her onto the balcony and turned out the light, though JC told Zadeh that she preferred to have the light on.  JC then described Zadeh coming up to her from behind and rubbing her vaginal area outside of her clothes with a hand.  This activity lasted for two seconds. There was no conversation between either JC or Zadeh when he touched her vaginal area.  JC denied that she wanted any sexual contact with Zadeh on the balcony.

[25]        JC described feeling relaxed when she went out onto the balcony and that in her experience she was more relaxed than she would have felt if she had only consumed alcohol.  In the following exchange in direct examination, JC described what happened after she finished her cigarette and went back into the apartment:

[26]        JC described the effects of GHB from her experience with GHB in the summer of 2012 were similar to sensations she was experiencing in the bedroom with Zaheh.  She described the effects as a heavy feeling, feeling relaxed and that everything seemed to move in slow motion.

[27]        JC recalled at one point being on the kitchen floor and Zadeh coming up to her and taking her hand and telling her, “no, do not sit on the floor” and leading her back into the bedroom.  Up to this point, JC had consumed over an approximately two-hour timeframe, two and a half double gin and tonics, along with five to six tequila shooters.

[28]        In an uninterrupted narrative, JC told the Court what occurred between herself and Zadeh after he led her from the kitchen into the bedroom in the following exchange:

[29]        JC was asked what was in her mind at the time she stroked Zadeh’s penis and the following exchange:

[30]        JC testified that she was drunk at the time she was led into the bedroom.  She denied that there was any conversation with respect to engaging in sexual intercourse with Zadeh.  At the time sexual activities took place in the bedroom JC described effects that were similar to her prior experience with GHB as follows:

[31]        In the following exchange JC was asked if she could recall her state of awareness when she felt Zadeh putting her underwear and pants back on her:

[32]        At approximately 5:30 AM JC woke up in Zadeh’s bedroom.  She testified that she simply “wanted to get out there.”  As she left Zadeh’s apartment she saw Zadeh apparently sleeping on the couch in the living room.  JC recalled telling Zadeh that she was leaving.

[33]        JC later received a text message from Zadeh in which he regretted that she had to leave so early, as they could have had a breakfast together. She did not reply to that text message.  Approximately one hour later, Zadeh text messaged JC asking if she wanted to go for ice cream. She did not reply to that text message.

[34]        JC described being in an emotional state when she got back to her residence.  As she was re-creating in her mind the previous night’s events at Zadeh’s apartment it suddenly clicked on her that Zadeh drugged her with GHB:

[35]        JC described going to work that day and after she finished her shift she called her best friend and told her what happened.  Her best friend told JC that she needed to go to the police because she had been raped.  As a result, JC called the police and through their investigation she was able to identify Zadeh’s apartment building.

[36]        JC was extensively cross-examined.  The impact of cross-examination on her reliability and credibility will be assessed in my analysis and findings of fact.

[37]        Sull examined JC at the Vancouver General Hospital, on July 11th, 2014, at 2300 hrs.  One of the documents that Sull completed was a Sex Assault Service record (“SAS”).  The SAS record is utilized to record examination results.

[38]        The SAS record did not note any obvious physical injuries to JC.  Nor did the SAS record make note of any detectable micro-fissures to the vaginal area of JC.

[39]        Sull was also of the opinion that it was very rare that she would observe injuries resulting from penile vaginal intercourse where non-consensual sex was reported.  In situations of reported sexual assaults where the female complainant has consumed alcohol, Sull gave the following opinion:

[40]        In cross-examination, it was suggested that there was a greater chance of detecting an injury to the vaginal or anal area of a sexual assault victim if the examination was performed within 24 to 48 hours of the alleged assault.  It was Sull’s experience that after examining a sexual assault complainant within a couple of hours to a couple of days after the sexual assault that it was, “very rare and seldom that I have seen any type of injuries to the genital area.”

[41]        Sull agreed with the suggestion put by Zadeh that a lack of lubrication could potentially increase the likelihood of vaginal injury because of friction; though she went on to say that it was “really hard to say in any case if that friction is going to cause trauma or injury or tear.”

[42]        Zadeh posed a hypothetical scenario in the context of forced vaginal intercourse without the use of a condom in the following exchange:

[43]        Sull disagreed with Zadeh that there was an increased likelihood of vaginal injury in situations where there was or was not consent to vaginal intercourse.  The potential for vaginal injury would increase if force was applied or foreign objects utilized.

[44]        Likewise, in relation to a female sexual assault victim, it was rare that a sexual assault complainant would sustain genital injuries if she consumed either drugs or alcohol due to reduced resistance.

[45]        Brisson testified that GHB was a substance which was manufactured legally under license and also manufactured and obtained illegally.  GHB was used as a prescription medication for the use in narcoleptic patients and also used illegally as a recreation drug.

[46]        Brisson testified that GHB can be in a liquid, crystal or powder form.  GHB was characteristically used in liquid form.  In a liquid form, GHB was generally colourless. Additionally, GHB was soluble in distilled liquor.

[47]        Brisson testified that GHB was associated with drug facilitated sexual assault cases.  Brisson described the impact from the consumption of GHB in drug facilitated sexual assault cases in the following exchange in direct examination:

[48]        Brisson testified that once the drug effect was gone that memory recall will return.  The extent of the memory recall may be fragmented or even subject to periods of complete blackout, depending upon the GHB dosage.

[49]        When asked by the Court to provide an overview, generally, of the impact of the consumption of both hard liquor and GHB on the human condition, Brisson had this to say:

[50]        Brisson, as well, testified that if a hypothetical 140 to 150 pound female was drinking double gin and tonics, along with five or six tequilas, over an approximate two-hour period, that this individual would be intoxicated or in a “drunken state”.  If this same female also consumed some GHB, she would experience a “big difference” in Central Nervous System (“CNS”) depression, which would peak at 30 to 40 minutes after ingestion.

[51]        She was aware of literature which established that if there was food in the stomach the peak effect could be beyond one hour.

[52]        Brisson testified, depending upon the dosage, that GHB and alcohol had very similar effects on the human condition.  One of the attractions for recreational users of GHB over alcohol was the quick onset of intoxication with a small amount of GHB.  In addition, GHB increased “mood and sociability and increased sexual feelings” without a hangover.

[53]        Brisson testified that one of the characteristics about GHB was it could result in transient unconsciousness in which an individual will fall unconscious and then wake up before falling unconscious again.  This characteristic would not apply to alcohol as it was eliminated more slowly from the body and, thus, a person intoxicated by alcohol could stay in a sedated pastoral state for a longer period of time.

[54]        Brisson testified that GHB was often described as having a salty or soapy taste.

[55]        Brisson testified that, hypothetically, if a 150 pound person consumed one to two grams of GHB, it would cause a mild intoxication.  Brisson described the effects of a mild GHB intoxication as follows:

[56]        Brisson testified that GHB induced an abrupt sleep state that could lead to fragmenting memory patterns in which an individual who was in this state would not be completely aware of everything that was going on around him or her.  It was a characteristic of GHB that the level of sedation and the level of sleepiness would prevent that individual from remembering events later when they were half asleep.

[57]        In instances where an individual consumed more than two to three grams of GHB, then states of unconsciousness could result including falling into a coma.

[58]        Brisson testified that the consumption of alcohol with GHB could cause problems to the CNS.  She described those problems as follows:

[59]        Again, in a hypothetical scenario, if an individual was consuming alcohol, even in a small amount of two ounces, and if that same individual consumed GHB in an amount over two grams, that same individual would experience a sudden physical impact, which would include extreme sedation, lethargy and a loss of muscle in coordination.  A combination of the consumption of GHB and alcohol generally resulted in a rapid intense CNS depression effect.

[60]        Brisson testified that GHB metabolized very rapidly.  So an individual who had taken a small amount of the GHB would, depending on the dosage, eliminate the GHB through the induced sleep stage.  When that individual awoke, again, depending on the dosage, they would not experience any hangover and, in fact, may feel refreshed.  On the other hand, alcohol metabolized slowly which contributed to the hangover effect.

[61]        The consumption of GHB could produce a heavy body feeling in which one loses motor control and coordination.  Additionally, one may sense a feeling of lethargy and loss of voluntary control.  Brisson testified that another characteristic attraction for the recreational use of GHB is it could increase the desire for sexual activity and it decreased inhibitions surrounding sexual behaviours.

[62]        Brisson testified that GHB was typically detected in blood for approximately four to six hours after ingestion and in urine 12 to 18 hours after ingestion.

[63]        Brisson testified that alcohol consumption could also decrease inhibitions and impair an individual’s perception and comprehension all of which could lead to risky behaviour.  If one combined the consumption of alcohol and GHB there would be a compounding effect on an individual’s potential for risky behaviours.

[64]        In direct examination, Brisson was asked to calculate the blood alcohol concentration (“BAC”) in a hypothetical 150 pound female, who had eaten a dinner at around 6 PM and then commenced drinking at approximately 9:30 PM, with the last drink consumed between 11:30 PM and midnight.  The total amount of the alcohol consumed was approximately 11 ounces.

[65]        Brisson estimated this individual’s theoretical BAC if she was drinking alcohol on an empty stomach would put her at 169 to 187 mg percentage.  Brisson testified that anyone with a BAC in excess of 100 mg percentage was impaired.  Individuals with a BAC in excess of 150 mg percentage would be intoxicated and they would experience comprehensive cognitive deficits.

[66]        In the same hypothetical, if this female also consumed approximately 2 g of GHB between 9:30 PM and 9:45 PM, then this individual would experience a sudden and impactful CNS depression.  Any subsequent consumption of alcohol following the ingestion of the GHB would exacerbate the CNS depression.

[67]        The effects of the GHB would peak approximately 40 minutes after consumption.  The duration of the peak effect would be two to four hours and would diminish after that point.  However, Brisson went on to testify that if this individual was continuing to load up with alcohol after consuming the GHB that would impact on the diminishing timeline:  (See Transcript, April 9, 2015, Page 77, Lines 2 - 15).

[68]        In cross-examination, Brisson was not aware of any literature in which individuals would use GHB for depression.  Brisson was aware of GHB being tested as a replacement or substitution for alcohol dependency.  Brisson described this research as “explorative.”

[69]        Brisson agreed with Zadeh that if an individual has been prescribed with GHB for narcolepsy, that person should only take the GHB just prior to going to bed because of its rapid onset.  Individuals who took GHB can fall sleep quite rapidly.

[70]        Brisson agreed with Zadeh that alcohol was also a CNS depressant.  At higher BAC levels individuals would experience a greater impairment of cognitive functions, including the potential for the deterioration of gross motor control coordination.

[71]        Brisson agreed with Zadeh that alcohol could cause fragmented memory and also influence perception.  The greater the individual BAC concentration then that the greater effect that alcohol would have on an individual’s functioning.

[72]        Brisson also agreed that a characteristic of alcohol consumption included the possibility of blackouts. Brisson agreed this same characteristic applied to GHB consumption.  It was also a characteristic of both GHB and alcohol consumption that both, depending upon the amount consumed, could result in partial or complete memory loss the following day.

[73]        Brisson agreed with Zadeh that the effect of the consumption of GHB was rapid and could be experienced within a 10 to 30 minutes window.  This effect could in fact be more rapid if one had consumed alcohol at the same time.  The effect of the GHB consumption would be delayed depending on the timing of food consumption.

[74]        Brisson agreed with Zadeh that while GHB could cause a body to feel heavier and lethargic that the consumption of alcohol alone could also cause similar feelings.

[75]        Brisson agreed with Zadeh that the peak effect after the consumption of the GHB would result in a greater CNS depression if one factored in alcohol consumption.

[76]        Detective Reid (“Reid”) participated in the search of the Zadeh’s apartment.  He was also the exhibits officer.  He seized and processed the exhibits with the assistance of Constable Chipperfield.

[77]        Reid testified that he prepared a flowchart in relation to exhibits seized, which flowchart identified the Body Energy Club bottle located in the refrigerator, and the José Cuervo tequila bottle located on the kitchen counter.  Reid confirmed that he found a bottle of La Cuerda tequila in the apartment.

[78]        Reid testified that samples from the José Cuervo tequila and the Body Energy Club bottle were forwarded to Health Canada and that the lab analysis confirmed the presence of GHB in both samples.

[79]        Reid testified that samples taken from the La Cuerda tequila and the Bombay Sapphire gin were negative for the presence of GHB.

[80]        Reid agreed with Zadeh that there were some errors in his “Task Action Report” pertaining to exhibit numbers, but any such errors were inadvertent and he provided corrections.

[81]        Reid testified that there was a small cubby or storage compartment in Zadeh’s apartment located in the kitchen area that required a locksmith to gain entry.  He recalled that this compartment was full of contents, but none of those contents were seized.  He had no notes about what was within that compartment.

[82]        The Crown submitted that there was a strong and cogent network of inculpatory facts that would establish that JC was administered GHB by Zadeh.

[83]        The Crown submitted that JC had used GHB in the past and was familiar with the salty taste which was corroborated by Brisson.  The Crown submitted that JC was reliable and credible in her testimony when she confronted Zadeh with respect to the salty taste.  The Crown further submitted that the Court ought to accept JC as reliable and credible when she testified that Zadeh told her that he had mixed two tequilas.

[84]        While perhaps naïve in accepting this explanation from Zadeh, that did not diminish her testimony concerning the salty taste which was buttressed by her prior experience with GHB.

[85]        The Crown submitted that the evidence established beyond a reasonable doubt that GHB was found to be in the José Cuervo tequila located on the kitchen counter at Zadeh’s apartment and also in the Body Energy Club bottle located in the refrigerator in Zadeh’s apartment.

[86]        The Crown submitted that whether or not the Body Energy Club drink or the José Cuervo tequila was used to spike the second tequila shooter should not cause the Court concern.  GHB was found in Zadeh’s apartment.  He clearly had the opportunity to administer the GHB.  JC was consistently clear in direct and cross-examination that the taste of the second shooter was salty.

[87]        The Crown submitted that JC’s evidence when she testified that she variously experienced feelings of having a heavy body; time was operating in slow motion; disinhibited behaviours; lack of coordination and motor controls; lethargy and ultimately periods of unconsciousness followed by a deep sleep mode, were all consistent with the consumption of GHB. JC’s evidence relating to these effects were corroborated by the opinion evidence of Brisson.  This supported the theory of the Crown that JC was administered GHB by Zadeh.

[88]        The Crown submitted that Brisson’s opinion ought to be accepted that the quick effect following consumption of GHB would take 10 to 15 minutes and start to peak at 30 to 40 minutes.  This timeline would be variable taking into account time of food consumption and the quality and dosage of the GHB consumption.

[89]        In addition, the Crown submitted that Brisson was reliable and credible in her opinions respecting the hypotheticals that were posed to her. In particular, that if approximately two grams of GHB were consumed by a 140 - 150 pound female between 9:30 PM and 9:45 PM, following consumption of gin and tequila, that the alcohol consumption would exacerbate the effect of the GHB.  This would still leave up to 40 minutes for the establishment of the peak effect with a duration peak effect of two to four hours.  This timeframe would be consistent with JC’s evidence that the sexual assaults took place in that two to four hour window.

[90]        The Crown submitted there was one, and only one, tequila shooter that had a salty taste and that JC’s evidence to that effect was not contradicted.

[91]        Additionally, the Crown submitted that it was Zadeh who introduced tequila shooters that evening at his apartment.  By utilizing a shooter the tequila was “gulped back” and any concern or complaint about the taste of the shooter would be too late as the GHB was now consumed.

[92]        It was further submitted by the Crown that it was noteworthy that JC experienced the salty taste tequila shooter relatively early in the evening.  It was submitted this was designed to permit the GHB to take peak effect over the next approximate 40 minutes.

[93]        The Crown submitted that the “teasing” and “challenge” behaviours of JC in her interactions with Zadeh were indicative of disinhibited behaviours consistent with the consumption of GHB.  These behaviours were described by the Crown as out of character for JC, particularly so as this was a first date. JC hardly new Zadeh.

[94]        The Crown submitted that while the mother of JC told her that there was evidence that GHB was found in Zadeh’s apartment prior to JC giving evidence that would not establish that somehow her evidence was rendered unreliable.  This was not a case of JC somehow making up a story that she was administered GHB.  The GHB was in fact found by the police and then analysed to be GHB.

[95]        The Crown submitted that JC testified in cross-examination that in her statement to the police that there was a block of time that she could not recall.  It was submitted that this would not impact her reliability or credibility simply due to a lack of recall. In fact, the Crown asserted that JC’s memory gaps and memory fragmentation were consistent with Brisson’s opinion that memory gaps and memory fragmentation would be consistent with the effects of GHB consumption.

[96]        The Crown submitted that if Zadeh wanted to challenge JC’s narrative of events and provide some explanation why GHB was in his apartment that he would have to “climb into the evidence box and talk about that”.

[97]        The Crown submitted that if the Court found beyond a reasonable doubt that Zadeh surreptitiously administered GHB to JC that such would amount to a fraud and would vitiate any consent by JC to sexual activity.

[98]        Alternatively, the Crown submitted that it would be patently evident to Zadeh that when JC was sitting on the kitchen floor and was pulled up by him that she was intoxicated. Memory loss or blackouts aside, there was no evidence that Zadeh made any inquiries of any sort to ascertain whether or not JC was, or would, consent to any sexual activity in the bedroom.

[99]        The Crown submitted that Zadeh had no consent from JC to rub her vaginal area outside of her clothing on the balcony.  In relation to the kissing, teasing cues and challenging actions there were no other actions that would establish that JC was consenting to either oral sex or sexual intercourse in Zadeh’s bedroom.

[100]     The Crown submitted that JC was reliable and credible in her evidence that she protested Zadeh pulling off her slacks and underwear.  The Crown submitted that JC was reliable and credible in her evidence when she testified that Zadeh performed oral sex upon her. Not only did she verbally protest, she also pulled away from him by hugging her knees to her body.

[101]     The Crown submitted that JC was reliable and credible in her evidence when she testified that sexual intercourse took place between herself and Zadeh. Again, as with respect to the touching on the balcony and the oral sex, there was no evidence of any consent to the sexual intercourse.

[102]     The Crown submitted that JC’s masturbation of Zadeh’s flaccid penis after sexual intercourse would not imply any ex post facto consent as consent must be freely given and, as a matter of law, there was no implied consent to sexual activity.  It was submitted that JC’s touching of Zadeh’s penis was indicative of her disinhibited behaviour as a result of the GHB consumption.

[103]     The Crown submitted that JC was reliable and credible in her evidence when she testified that she would not practice unsafe sex.  She was concerned over sexually transmitted diseases and would not have consented to sexual intercourse with Zadeh unless he practiced safe sex.

[104]     The Crown submitted that JC’s memory of the morning following the sexual intercourse was significant.  In particular, JC was reliable and credible in her evidence when she testified that she had no strength to lift herself out of bed, as her body felt “so heavy”.  She then fell asleep again and awoke when Zadeh was dressing her in her underwear and slacks that he had removed earlier.

[105]     It was submitted that the core evidence of JC was cogent and compelling evidence that she did not consent to any sexual activity with Zadeh.

[106]     The Crown submitted there was no air of reality to any defence of honest but mistaken belief in consent.  GHB aside, given the amount of alcohol consumed by JC, she would have been obviously impaired and that would trigger a duty on the Zadeh to make inquiries about consent to sexual activities.

[107]     The Crown further submitted that if there was anything equivocal about her behaviour on the balcony, that any contention that there was an air of reality to the defence of honest but mistaken belief came to an abrupt end once Zadeh was in the bedroom with JC and the oral sex and sexual intercourse took place.

[108]     The Crown submitted that JC was reliable and credible in her evidence when she testified that she told Zadeh that she did not want sexual contact.  If the Court accepted JC’s evidence that she said “no” and moved away from Zadeh in the bedroom then the defence of honest mistake would not avail Zadeh.

[109]     Zadeh submitted that there was a reasonable doubt that he administered GHB to JC.

[110]     Zadeh submitted that there was no reliable evidence that JC was given any GHB, other than the presence of GHB found in the nearly 90% full bottle of José Cuervo tequila, and in the Body Energy Club bottle located in the refrigerator.

[111]     Zadeh submitted that while in hindsight JC was convinced that she was given GHB, that her certainty had no bearing as to the accuracy of her evidence.

[112]     Zadeh noted that JC was clear in her recollection that she was drinking premium tequila that she believed to be Patron, and not the José Cuervo tequila.  This was important as JC was very familiar with the taste of the various liquors as she was a bartender and server at a lower mainland restaurant.

[113]     In addition, while the police did not find a bottle of Patron tequila in Zadeh’s apartment, they did locate the bottle of La Cuerda premium tequila that was missing an amount consistent with the drinking pattern of the JC and Zadeh that evening.  As such, Zadeh submitted that it was possible that JC was consuming the La Cuerda tequila, a premium tequila brand.

[114]     Zadeh submitted that it was possible that the Patron tequila was in the cubby or storage compartment located in the kitchen area which, though opened by the police, was apparently not searched.

[115]     Zadeh submitted that the mild protest or concern expressed by JC over the “salty” taste of the second tequila shooter did not make sense.  As JC had consumed GHB in the past, that when she drank the second salty shooter she would not “have let such an event slide.”

[116]     Most importantly, Zadeh submitted that JC would have experienced the rapid onset of the effect of GHB within 10 to 30 minutes of consumption, with the peak effect being reached at 30 to 40 minutes after consumption.  JC’s evidence has the GHB effect hitting her at least one and a half hours after consumption of the salty shooter.

[117]     Zadeh submitted the scenario played out by JC was inconsistent with the opinion of Brisson, in relation to the rapid onset of symptoms related to GHB consumption.  It was submitted that any suggestion that JC was simply mistaken about the timing of the consumption of the salty tequila shooter would be speculative.

[118]     Furthermore, it was submitted by Zadeh that symptoms experienced by JC were at least equally, if not more so, consistent with alcohol consumption, rather than GHB consumption.  It was submitted that Brisson was reliable in her evidence in which many of the symptoms experienced by JC were equally consistent with alcohol consumption and not exclusive to GHB consumption.

[119]     Zadeh submitted that one of the characteristics of GHB consumption noted by Brisson was sexual disinhibition.  This would be inconsistent with JC’s evidence that she did not feel any increased sexual arousal or desire in her physical contact with Zadeh.

[120]     Zadeh submitted that JC’s belief that she was administered GHB was tainted as she was told by her mother, who had been sitting in Court when the evidence of the presence of GHB came out, which was prior to JC giving evidence.  Zadeh submitted that when JC received this information from her mother that it reinforced her belief that in fact she was administered GHB.

[121]     Zadeh submitted that JC’s assertion that she did not consent to sexual activity with him was not determinative on this issue. The Court must look at all of the evidence to determine whether or not there was a reasonable doubt in relation to the existence of consent.

[122]     Zadeh submitted that there were nonverbal and verbal cues and actions by JC that would establish an evidentiary foundation for a conclusion that there was a reasonable doubt in relation to consent.

[123]     Zadeh submitted that JC’s capacity to consent was not established beyond a reasonable doubt.  Zadeh submitted that capacity was not the issue; rather, the principal issue was consent.

[124]     Zadeh submitted that it was important to bear in mind that JC suffered from significant memory loss and blackouts in relation to events at his apartment.  JC’s memory loss and blackouts impacted her reliability at crucial points of her narrative, including the time between her teasing or challenging of Zadeh and when she then ended up back in his bed and oral sex commenced.

[125]     Zadeh submitted that JC’s blackouts and memory gaps could not be presumed to be as a result of the administration of GHB.  It was for the Crown to establish beyond a result that in fact GHB was administered by Zadeh and the evidence fell short.

[126]     Zadeh submitted that JC’s perceptions and memory loss were likely significantly impacted by her consumption of alcohol.  Her alcohol consumption resulted in blackouts at critical junctures, including after the “teasing” cues or the “challenge” actions, and the commencement of oral sex and sexual intercourse.

[127]     Zadeh submitted that the Court must proceed with extreme caution in accepting JC’s evidence that on two occasions she told Zadeh “no” or “stop it” when sexual activity was taking place.  In particular, Zadeh submitted that JC was inconsistent in her evidence as to whether or not she in fact said “no” or “stop” when her bottom clothing was being removed.

[128]     In relation to the vaginal touching over clothing that allegedly took place on the balcony, that action was not met with any protest by JC.  JC’s behaviours in French kissing, teasing and challenging Zadeh would support the notion that JC was consenting to sexual activity with Zadeh.

[129]     Zadeh submitted that JC’s actions in masturbating Zadeh after intercourse was consistent with her subjective consent for continuing intercourse and not a signal to stop intercourse.

[130]     Zadeh submitted that JC was inconsistent in her statement to the police and in her evidence in relation to whether or not she was in fact ever sitting on the floor either in or by the kitchen and then taken by her hand by Zadeh into the bedroom.

[131]     Zadeh submitted that the Court ought not to simply adopt JC’s level of certainty as to what transpired at Zadeh’s apartment.  JC’s level of certainty did not make her any more accurate or reliable.

[132]     JC’s behaviours throughout the evening ought to cause the Court concern over the reliability of her evidence.  In particular, JC’s behaviour in masturbating Zadeh after sexual intercourse at a minimum would suggest that JC changed her mind regarding consent even if there had been any prior protest.

[133]     Zadeh submitted that in relation to consent that collectively gaps in JC’s narrative, her blackouts/memory loss, and JC’s subjective beliefs would make it impossible for the Court to draw any conclusions as to consent.

[134]     Zadeh submitted that if the Court found that JC did not subjectively consent to the sexual activity with him, there would still be an absence of a reasonable doubt that Zadeh did not have honest but mistaken belief in her consent.

[135]     Zadeh submitted that there was no onus on him to testify to the honest but mistaken belief defence.  The defence could be established by any evidence that would establish an honest but mistaken belief.

[136]     In particular, Zadeh submitted that JC seemed to willingly participate in the foreplay to sexual activity.  JC willingly French kissed Zadeh and made no protest when he rubbed her vaginal area on the balcony.  JC’s further actions in “teasing” Zadeh by sitting on his crotch area in his bedroom in response to his “challenge” that he would not touch her would establish Zadeh’s honest but mistaken belief in consent

[137]     Zadeh submitted that when you factor in JC’s blackouts/memory loss that there would be a reasonable doubt as to whether there were other behaviours consistent with honest but mistaken belief in consent.

[138]     Even if the Court was to find beyond a reasonable doubt that JC did say “no” or “stop” in the bedroom, her subsequent actions in masturbating Zadeh after intercourse could amount to an action that Zadeh would honestly believe that he had obtained consent at some prior point to the intercourse.

[139]     It was submitted that the evidence in this case did not amount to a strong and cogent network of inculpatory facts that would call for an explanation by Zadeh.  To the contrary, Zadeh submitted that there was a strong and cogent network of evidence that raised a reasonable doubt that Zadeh had an honest but mistaken belief in consent.

[140]     Zadeh has been charged with the sexual assault of JC. Issues surrounding consent and the defence of honest but mistaken belief in consent have been raised by Zadeh.

[141]     Consent in relation to the intention to commit a sexual assault is limited by both the common law and by the provisions set out in s. 273.(1) and (2) and s. 273.2 of the Code. Those sections read as follows:

[142]     In R. v. Ewanchuk, 1999 CanLII 711 (SCC), [1999] 1 SCR 330, at paragraphs 25 and 26, the Court described the actus reus of sexual assault as follows:

[143]     In Ewanchuk, the Court addressed confusion that had arisen over time with respect to the meeting of the presence or absence of consent in sexual assault cases.  The Court ruled in part that in relation to the actus reus of sexual assault that the “actual state of mind of the complainant is determinative.  At this point, the trier of fact is only concerned with the complainant’s perspective. The approach is purely subjective”: (Paragraph 27).

[144]     Zadeh’s perception of JC’s state of mind is not relevant.  His perception only enters the analysis when a defence of honest but mistaken belief in relation to consent is raised at the mens rea stage of the trial.

[145]     In assessing JC’s credibility and reliability of her asserted state of mind it is open to Zadeh to argue that her words or actions gave rise to a reasonable doubt against the assertion that JC did not subjectively consent.  If I find that JC did not subjectively consent, then the Crown has discharged its obligation to prove the absence of consent: (Ewanchuk, paragraphs 29 and 30).

[146]     A lawful consent can only be established if it is an informed consent.  There is no consent cases where the complainant lacks the capacity to consent:  s. 273.1(2)(b) of the Code.  Capacity is a factual issue to be decided by the trier of fact and must be established beyond a reasonable doubt: See R. v. A. (A.) (2001), 2001 CanLII 3091 (ON CA), 155 C.C.C. (3d) 279 (Ont. C.A.).

[147]     In R. v. Siddiqui, 2004 BCSC 1717, at paragraph 55, Bennett J (as she then was) said the following about capacity to consent to sexual activity:

[148]     In R. v. Saint-Laurent (1993), 1993 CanLII 4380 (QC CA), 90 C.C.C. (3^rd) 291 at page 311, Fish J.A. (as he then was) had this to say about the absence of consent when a sexual act takes place:

[149]     In addition, no consent is obtained if an assault is perpetrated on a complainant as a result of fraud. Section 265 (1) and (3)(c) of the Code read as follows:

[150]     In R. v. Crangle, 2010 ONCA 451at paragraph 14, the Court of Appeal said the following in relation to the application of section 265(2) to various forms of assault:

[151]     Zadeh has asserted as an alternative defence that should the Court find beyond a reasonable doubt that JR did not subjectively consent to any sexual activity, that based upon her verbal and non-verbal cues and actions, that Zadeh had an honest but mistaken belief in her consent.  The Court in Ewanchuk, at paragraphs 64 and 65, established the approach the Court must take in determining the availability of this defence:

[152]     For there to be an air of reality to this defence, the totality of all of the evidence heard in this trial must reasonably and realistically capable of supporting the defence: (See R. v. Park, 1995 CanLII 104 (SCC), [1995] 2S.C.R. 836 at paragraph 20).

[153]     If I am satisfied that there is some plausible evidence to establish an air of reality to the defence of honest but mistaken belief then the next stage of the inquiry is to determine whether or not Zadeh honestly believed that JR had communicated her consent.  This inquiry may include an assessment of any evidence of verbal and nonverbal cues and actions by JR from which an inference of consent can be reasonably and realistically drawn.

[154]     The defence of honest but mistaken belief in consent will not avail Zadeh if I were to find that he did not take reasonable steps in circumstances known to him to ascertain the consent of JR: (See R. v. Malcolm, 2000 MBCA 77 (CanLII), [2000] M.J. No.387, at paragraph 24 (C.A.).

[155]     Lastly, there are limits to the defence of honest but mistaken belief in consent to sexual activity.  For example, a belief that silence, passive behaviour or ambiguous conduct constitutes consent is a mistake of law and provides no defence (Ewanchuk, at paragraph 51).

[156]     Zadeh has also been charged with administering or causing to be administered to JC a stupefying or overpowering drug with the intent to enable him or assist him to commit the indictable offence of sexual assault: s. 246(b) of the Code.  That section reads as follows:

[157]     In R. v. Saadatmandi, 2008 BCSC 250 (CanLII), [2008] B.C.J. No. 405, Fisher J. observed that GHB has achieved notoriety as a “date rape drug” associated with drug facilitated sexual assaults.  At paragraph 169, Fisher J. found that the GHB is a stupefying drug.

[158]     With respect to proof in relation to s. 246(b), the absence of consent must be established by the Crown.  This requirement was addressed by Fisher J. at paragraphs 14 and 15 as follows:

[159]     In this case, both the Crown and the Zadeh agree that the assessment of the reliability and credibility of the viva voce evidence, in particular the evidence of JC, was critical.  In approaching the assessment of the reliability and credibility of evidence, guidance can be found in Peter McWilliams authoritative textbook, McWilliams Canadian Criminal Evidence, 4^th, at page 27:2, which reads as follows:

[160]     There will be other factors which bear on the issues of the reliability and credibility of the evidence presented at this trial including: whether the witness’ changes his or her testimony during direct and cross-examination; whether the witness testimony seems unreasonable, impossible or unlikely; whether a witness has a motive to lie; and a general demeanour of the witness.  Ultimately the question is whether the evidence is consistent with the probabilities affecting the case as a whole:  (See Bradshaw v. Stenner, 2010 BCSC 1398, at paragraph 186).

[161]     Though there were some errors in Reid’s “Task Action Report” pertaining to exhibit numbers, the errors were inadvertent and explained.  I am satisfied beyond a reasonable doubt that the sample taken from the José Cuervo tequila located in Zadeh’s kitchen and forwarded to health Canada for analysis confirmed the presence of GHB.

[162]     Brisson provided the Court with expert opinion evidence in relation to the physiology and pharmacology of drugs and alcohol and the effects of drugs and alcohol on the human condition.  I found Brisson to be an exceptionally informed and reliable witness.  I am satisfied beyond a reasonable doubt that Brisson was ultimately a credible witness.

[163]     In relation to GHB, Brisson gave opinion evidence which I accept that it was used as a prescription medication for use by narcoleptic patients and used illegally as a recreational drug.  Brisson was also aware of some explorative testing in which GHB was being tested as a replacement or substitution for alcohol dependency.  She was unaware of any literature in which GHB was used to alleviate depression.

[164]     Brisson gave opinion evidence which I accept that GHB was associated with drug facilitated sexual assault cases.  At paragraph 47 of this judgment Brisson described the impact from the consumption of GHB in drug facilitated sexual assault cases.

[165]     Brisson also gave opinion evidence which I accept that GHB had a distinct salty or soapy taste to it and was soluble in distilled liquor.  That was consistent with the evidence of JC when she testified that the second or third tequila shooter had a salty taste. When JC complained about the taste, Zadeh told her he had mixed two tequilas. JC’s evidence on this point was not contradicted.

[166]     JC was certainly familiar with the taste of various distilled liquors. In cross-examination, she testified that she saw a bottle of Patron tequila in Zadeh’s apartment and believed that was what she was drinking, except for the salty shooter which she consumed at around 9:30 PM. She as well agreed with Zadeh that La Cuerda tequila was also a premium brand tequila.

[167]     JC agreed with Zadeh that she was “very drunk” from consuming the gin and tonics and the tequila shooters.

[168]     In response to further questioning by Zadeh, JC testified that she began to feel the effect of GHB when she went out onto the balcony and then later when she recalled being on the kitchen floor that she could “definitely” tell the effects of GHB.

[169]     JC agreed with Zadeh that the effects from the consumption of GHB were similar to the same effects from the consumption of alcohol, but without the hangover.  JC was also aware that GHB could increase a person’s sexual arousal, but that was not the case for her in her contact with Zadeh.

[170]     JC agreed with Zadeh that she had past personal experiences with the consumption of alcohol resulting in blackouts.  Her experience with her prior use of GHB in 2012 did not result in any blackouts.  In relation to events at Zadeh’s apartment, she readily agreed that she did suffer from blackouts and memory gaps.

[171]     I accept the opinion evidence of Brisson that the effect of the consumption of approximately two grams of GHB would peak between 30 minutes to one hour after consumption, depending on food consumption. The duration of the peak effect would last two to four hours.

[172]     I further accept the opinion evidence of Brisson when she described the interaction of GHB in combination with alcohol consumption would cause an additive CNS depression.  In addition, an individual who consumed GHB and alcohol would experience extreme sedation, lethargy, confusion and poor muscle coordination.

[173]     I accept Brisson’s hypothetical BAC calculation that a female of the same weight of JC, having consumed the amount of alcohol that she did that evening at Zadeh’s apartment, would be intoxicated.  That same hypothetical female would experience comprehensive cognitive deficits.

[174]     In the same hypothetical, I accept Brisson’s opinion evidence that if this female also consumed approximately 2g of GHB between 9:30 PM and 9:45 PM, then this female would experience a sudden and impactful CNS depression.  Any subsequent consumption of alcohol following the ingestion of the GHB would exacerbate the CNS depression.

[175]     I further accept the opinion evidence of Brisson in establishing that an individual who consumed GHB could experience disinhibited and risky behaviours.  If that same individual also consumed alcohol with the GHB there would be a compounding effect on an individual’s potential for risky behaviour.

[176]     JC’s admissions that she was French kissing Zadeh in the living room and later teasing and challenging him as described in this judgment would be described as disinhibited behaviors.  JC’s evidence that it was not her practice to engage in unsafe sex due to the potential for contracting a STD would also establish that she was not prone to engage in risky behaviors.

[177]     JC agreed with Zadeh that she was “very drunk” that evening.  I find there was no question that JC was very drunk that evening at Zadeh’s apartment.  Brisson’s opinions would corroborate that finding.

[178]     JC was consistent in direct examination and cross-examination in her belief that the second or third tequila shooter was a salty shooter, which was also consistent with Brisson’s evidence that GHB had a salty taste.  I accept that JC was knowledgeable in relation to the taste of liquors and, in particular, the taste of tequila.  After “shooting” the second tequila, I accept JC’s evidence that she was instantly aware of the salty taste and complained about it to Zadeh.  I accept JC’s evidence that Zadeh told her that he had mixed two tequila’s.

[179]     It did not make sense that Zadeh would mix two tequila’s.  This was particularly so as it would appear that he was pouring a premium tequila and not the lower quality Jose Cuervo.

[180]     I disagree with Zadeh that JC’s credibility was undermined by her failure to not make a greater protest over the salty taste, as JC had experienced the taste of GHB in the past and, as such, she would not “have let such an event slide.” I agree that in hindsight one would have expected that JC should have taken a more proactive approach, but it must be kept in mind that not only was the salty shooter consumed when she experienced the salty taste, but JC had also just consumed a tequila shooter and was in the process of finishing a double gin and tonic. JC was well on the way to impairment and eventual intoxication.

[181]     I disagree with Zadeh that his cross-examination was thwarted or compromised by the fact that JC’s mother told JC in advance of her giving evidence that the police had discovered GHB at Zadeh’s apartment. The fact that JC testified that she “knew it” does not alter the fact that GHB was located in the Zadeh’s apartment. It must also be kept in mind that JC believed she had been given GHB by Zadeh after leaving his apartment.

[182]     Zadeh submitted that JC would have experienced the rapid onset of the effect of GHB within 10 to 30 minutes following consumption with the peak effect being reached at 30 to 40 minutes after consumption, which was inconsistent with her evidence that she began to experience the effect of GHB approximately one and a half hours after consumption of the salty shooter.

[183]     Brisson testified that the onset of the effect of GHB consumption and achieving the peak effect were variable and may be impacted by the consumption of food and alcohol. I accept JC’s evidence when she testified that she had consumed a large meal earlier that evening. There was also no question that JC was drinking a large amount of alcohol for a 140 - 150 lb female.

[184]     I also had the distinct impression from JC’s direct examination and her cross-examination that the timing of events at Zadeh’s apartment were estimations. It would not make sense that she would be watching the clock as events unfolded through the evening. It was clear that the duration of the peak effect of GHB lasted between two to four hours, which placed Zadeh in the timeframe when the sexual activities took place in his bedroom with JC.

[185]     Zadeh submitted that symptoms experienced by JC were at least equally, if not more so, consistent with alcohol consumption, rather than GHB consumption. This would be supported by JC’s evidence of the amount of alcohol consumed and the opinion evidence of the Brisson in which she described how the symptomology of the consumption of alcohol and GHB mimic each other.

[186]     I accept Zadeh’s submission that the symptomology of the consumption of alcohol and the consumption of GHB could mimic each other. This was supported by Brisson’s evidence. I accept Brisson’s opinion evidence that the combination of a small amount of GHB, when combined with alcohol, will exacerbate the symptomology. I accept JC’s evidence as reliable and credible in establishing that prior to being pulled into the bedroom from the kitchen floor by Zadeh, she was experiencing extreme impaired symptoms that would be circumstantially consistent with the consumption of both GHB and alcohol.

[187]     Brisson gave opinion evidence about the additive CNS depression resulting from the combination of the consumption of alcohol with GHB. In particular, this would result in an aggravation of the sedation caused by GHB. I accept that opinion.

[188]     JC testified that she fell into a deep sleep and only awoke when she heard the shower running. She testified that she did not have the strength to get up out of bed as her body was so heavy. She then fell into another very “deep, deep sleep” and was awoken when she felt Zadeh dressing her in her underwear and slacks.

[189]     I accept JC’s evidence as reliable and credible that she fell into these deep sleeps. The deep sleeps that she experienced would be circumstantially consistent with the opinion given by Brisson relating to the aggravated sedation that could result from a combination of the consumption of GHB and alcohol.

[190]     I found it ominous that the Zadeh had GHB in his apartment. Brisson gave opinion evidence which I accept that GHB had been used as a prescription medication for the use of narcoleptic patients.  If Zadeh was having any sleep problems it would not make sense that he would put GHB in a Boost Energy Club drink.

[191]     In addition, if Zadeh was using GHB as a substitution for alcohol, it would not make sense that he would put GHB in the José Cuervo tequila.

[192]     I found it ominous that the Zadeh dressed JC in her underwear and was attempting to dress her in her slacks in the morning. This circumstance was never challenged by Zadeh. I accept Brisson’s opinion referenced at paragraph 47 of this judgment where in part she testified that the day following the consumption of the GHB, “a person cannot recall what happened while they were under the influence of the drug and that’s specifically referred to as anterograde amnesia”.

[193]     I do not find that Zadeh was extending any courtesy to JC by dressing her in her underwear or attempting to dress her in her slacks while she was asleep. It would be reasonable to infer that, in fact, what Zadeh was doing was dressing JC so when she awoke she would be unable to recall what had happened the previous evening as a result of anterograde amnesia.

[194]     The evidence of the presence of GHB in the José Cuervo tequila and in the Boost Energy Club found in Zadeh’s apartment was not contradicted or otherwise explained. Nor for that matter was JC’s evidence that the second shooter was salty contradicted. The explanation provided was Zadeh’s statement that he had mixed two tequilas. I find that explanation to be significant. Based upon that explanation, I infer that Zadeh mixed the second tequila shooter with a combination of the premium tequila and the GHB contaminated José Cuervo tequila that was located by the police on Zadeh’s kitchen counter

[195]     In both direct and cross-examination, I found a JC to be forthcoming and responsive. I did not have the impression that she exaggerated or overstated her evidence. She was not argumentative or combative in cross-examination. There were some inconsistencies in her evidence, but those inconsistencies did not undermine her reliability and credibility overall.

[196]     Zadeh chose not to testify at his trial as was his right to do so. His silence was not inculpatory, but it was indicative of the absence of an exculpatory explanation for the above circumstances: See R. v. Kara’s, 2007 ABCA 362 (CanLll), at paragraph 68).

[197]     I conclude that the Crown has established beyond a reasonable doubt that JC was administered GHB by Zadeh.

[198]     Zadeh has submitted that the Crown has not established beyond a reasonable doubt that JC lacked the capacity to give consent to engage in sexual activities with Zadeh. The test to establish capacity to consent was discussed in Siddiqui at paragraph 55 as follows:

[199]     I have found that JC was administered GHB by Zadeh. I have accepted the opinion evidence of Brisson as reliable and credible. She testified that depending on the dosage, GHB can have a significant physiological and cognitive impact on an individual. GHB has a very steep dose effect curve such that even a small dose will result in extreme effects.

[200]     I accept Brisson’s opinion that if an individual is already under the influence of alcohol that the consumption of a small amount of GHB could triple the additive CNS depression of that individual resulting in a significant sedation effect.

[201]     JC testified that she was very drunk when she was engaged in oral sex and sexual intercourse with Zadeh. Based upon the BAC percentage calculation performed by Brisson JC was intoxicated by alcohol at the time she was pulled into the bedroom by Zadeh. This intoxication was both exacerbated and the sedation effect aggravated by JC’s involuntary consumption of GHB.

[202]     JC testified that at the time she was pulled up from the kitchen floor by Zadeh and then taken to his bedroom that the only conversation that she recalled was Zadeh telling her, “no, do not sit on the floor”. She next recalled being on her back and Zadeh was pulling down her pants and she was saying, “no, stop it, stop it.”

[203]     JC testified that it was her practice to engage in safe sex activities to avoid contracting a STD. I accept her evidence on that point. It would be out of character for JC to engage in consensual unsafe sexual activities with Zadeh - a virtual stranger.

[204]     During the time that sexual activities took place in Zadeh’s bedroom JC described blacking in and out of consciousness. The blacking in and out of consciousness was due to JC’s intoxication. The blacking in and out of consciousness negatively impacted JC’s memory.

[205]     Loss of memory alone is not direct evidence that would establish JC’s incapacity to consent. The loss of memory is evidence that JC cannot say whether she consented to engage in sexual activities with Zadeh: (See R. v. Moazami, [2014] BCJ 2303 at paragraph 397).

[206]     JC’s memory loss was a direct result of her state of intoxication. Her state of intoxication was induced by Zadeh as he was responsible for pouring her drinks which included the GHB contaminated Jose Cuervo tequila shooter.

[207]     It must be kept in mind that while JC was voluntarily drinking the gin and tonics and the tequila shooters, there was no question that she was told anything about GHB in the second or third tequila shooter. The GHB was introduced by Zadeh without her consent. It would be reasonable to infer that Zadeh used to the GHB, in combination with the alcohol, in an effort to reduce JC’s ability to make voluntary and informed decisions to engage in sexual activities with him.

[208]     I accept Brisson’s opinion that depending upon dosage the consumption of GHB can have a profound impact on an individual’s CNS. In Saadatmandi, Fisher J. had the benefit of expert opinion evidence in relation to the impact of the GHB on an individual’s capability of consenting to engage in sexual activities. At paragraph 11 of that judgment she had this to say:

[209]     At the time Zadeh touched JC in the vaginal area outside of her clothing on the balcony of his apartment the GHB was starting to have an effect on JC. Her alcohol consumption was also starting to have a significant effect on her. It cannot be said that at the time of the touching on the balcony that JC was incapacitated by the GHB and her alcohol consumption.

[210]      I find that at the time JC was taken into Zadeh’s bedroom her capacity to consent to engage in sexual activities with Zadeh was overborne by the combined effects of the GHB and alcohol consumption. This crossing of the line into incapacity was supported by JC’s evidence and the expert opinion evidence given by Brisson and Sull and Law.

[211]     I find that the Crown has established beyond a reasonable doubt that JC did not have the capacity to consent when she was touched by Zadeh on the balcony of his apartment. I find the Crown has established beyond a reasonable doubt that JC did not have the capacity to consent to oral sex or sexual intercourse that occurred in Zadeh’s bedroom.

[212]     Even if I were to find that JC had the capacity to give her consent to engage in oral sex and sexual intercourse with Zadeh, I am satisfied that the Crown has established beyond a reasonable doubt that JC did not subjectively consent to engage in the touching on the balcony or in relation to oral sex or sexual intercourse.

[213]     I have found that Zadeh administered the GHB to JC. The GHB was given to JC without her consent. I accept Brisson’s opinion that GHB was used illegally by some individuals to facilitate sexual assaults. Zadeh’s actions in administering the GHB to JC was illegal and amounted to a perpetration of a fraud on JC which was prohibited by section 265(3)(c) of the Code.

[214]     I accept JC’s evidence that she did not protest when she was French kissed by Zadeh, other than she did not feel he was very good at kissing. In addition I accept her evidence that when she went out onto the balcony to have a cigarette that she did not say anything when Zadeh came behind her and touched her vaginal area over top of her jeans. I accept her evidence that while she did not say anything to protest the touching, she nevertheless did not consent to the touching.

[215]     I find from JC’s evidence and Brisson’s opinion evidence that at the time of the touching on the balcony that JC was feeling the effects of the GHB. These effects were exacerbated by her consumption of alcohol. Upon returning into the apartment her behaviors in teasing Zadeh by sitting on his crotch in his bedroom in response to his challenge that he would not touch her or sleep with her were disinhibited behaviors consistent with GHB consumption. Those behaviors were exacerbated by JC’s consumption of alcohol.

[216]     I accept JC’s evidence that she was pulled up from the kitchen floor by Zadeh and taken into his bedroom. JC testified that it was in the bedroom that Zadeh removed her clothes over her protest and then he commenced performing oral sex on her over her protest.

[217]     JC then testified how she “mustered up the energy” to pull herself up with her knees up to her chest telling Zadeh, “I do not want to do this.” Following that JC did not know what happened other than she next experienced sexual intercourse taking place. It was unclear how the sexual intercourse ended though JC recalled putting her hand on Zadeh’s penis and found that it was not erect and told him, “you are not even hard.”

[218]     I disagree with Zadeh that JC’s conduct in returning the French kiss with Zadeh, lack of protest when he touched her on the balcony along with the teasing and challenging behaviour would establish her subjective consent to engage in oral sex and sexual intercourse with Zadeh. It is impermissible as a matter of law to imply those actions established consent.

[219]     JC’s behaviour in masturbating Zadeh’s flaccid penis following intercourse was consistent with disinhibited behaviour resulting from JC’s consumption of GHB and alcohol and would not amount to conduct that would amount ex post facto to the voluntary consent to engage in sexual intercourse.

[220]     I accept Zadeh’s submission that the blackouts and memory loss experienced by JC when she was in the bedroom with Zadeh would impact her reliability and credibility as a witness.

[221]     However, I do not find that JC’s blackouts and memory loss establish a foundation for finding that she expressly or tacitly was consenting to engage in oral sex and sexual intercourse with Zadeh. It must be remembered that it was Zadeh who poured the drinks that evening. GHB aside, Zadeh must have known that JC was drunk when he pulled her up from the kitchen floor and led her into his bedroom.

[222]     The earlier French kissing, teasing and challenging behaviors were at most ambiguous signals from JC and not a green light for Zadeh to forge ahead to engage in oral sex and sexual intercourse with JC.

[223]     I do not find that JC’s reliability and credibility was undermined in cross examination in relation to her assertion that she was not consenting to any sexual activity with Zadeh. I do not find that there was any informed consent expressed by JC through either nonverbal or verbal cues or actions as submitted by Zadeh.

[224]     I find the Crown has established beyond a reasonable doubt that JC did not subjectively consent to any sexual activity with Zadeh. Accordingly I find that the actus reus of sexual assault has been established.

[225]     As I have found that Zadeh administered GHB to JC, the defence of an honest but mistaken belief in consent is not available to Zadeh. It would be illogical that he could successfully advance such a defence in the face of the fraud perpetrated upon JC.

[226]     Additionally, any air of reality to that defence evaporated when Zadeh poured the GHB contaminated shooter consumed by JC. While the dosage of this shooter was not known, I find that Brisson’s opinion evidence and JC’s evidence established beyond a reasonable doubt that Zadeh administered a sufficient dosage of GHB that JC’s cognitive and physiological functioning were impaired. Her functioning was further impaired by the alcohol drinks poured by Zadeh and consumed by JC.

[227]     Zadeh has advanced the honest but mistaken belief in consent in relation to the touching incident on the balcony and the sexual activities that took place on the second occasion in Zadeh’ s bedroom. As I found earlier, it was ominous that GHB was found in the Body Energy Club bottle and in the Jose Cuervo tequila. I infer that the touching that took place on the balcony was not an action based upon the defence of an honest but mistaken belief in consent, rather Zadeh was exploring whether or not the GHB was taking effect.

[228]     I do not find there is any plausible evidence in this case that would lend any air of reality to Zadeh’s honest but mistaken belief in consent relating to the oral sex and sexual intercourse with JC. It was ominous that after Zadeh engaged in sexual activities with JC in his bedroom that he dressed her in her underwear and attempted to dress her in her slacks. I infer that he was putting JC’s underwear and slacks back on her to either mask the sexual activities that took place, or at the very least to establish confusion in her mind that any sexual activities took place: (See also paragraphs 192  and 193 of this judgment).

[229]     Lastly, any air of reality to the defence of mistaken and honest belief in consent would not avail Zadeh as I find he was reckless or wilful in administering the GHB to JC. Further, he was reckless or wilful in providing the amount of alcohol that he did to JC. I accept JC’s evidence that Zadeh poured the first tequila shooter before she had even finished her first double gin and tonic. I accept Brisson’s opinion that if JC consumed the amount of alcohol given in evidence in this case that she would be intoxicated. I find that Zadeh wanted JC to become intoxicated. He did so to facilitate the sexual assault of JC.

[230]     I have found that the Crown has established beyond a reasonable doubt that the Zadeh administered GHB to JC. I find that the Crown has established beyond a reasonable doubt that he administered the GHB with the intent to enable him to commit the sexual assault of JC.

[231]     Accordingly, I find Zadeh guilty of the charge that he administered a stupefying overpowering drug, GHB, to JC contrary to section 246(b) of the Code.

[232]     I have found that the Crown has established beyond a reasonable doubt that JC did not have the capacity to consent to oral sex or sexual intercourse. I have found the actus reus of sexual assault was established. I have found that the defence of an honest but mistaken belief in consent was not available to Zadeh. Even if it was available, I find that the Crown has established beyond a reasonable doubt the absence of an honestly held belief on the part of Zadeh that JC was consenting to the sexual activity at the relevant times.

[233]     Accordingly, I find Zadeh guilty of the charge that he sexually assaulted JC contrary to section 271(1) of the Code.