When Taylor phoned her grandfather for a ride home around midnight, she was dizzy, disoriented and on the verge of throwing up.

In the previous three hours, the 21-year-old had downed half a twenty-sixer of tequila and numerous mixed drinks, although she isn’t sure exactly how many. By the time her grandfather picked her up outside the sports bar around 12:30 a.m., Taylor was slurring and struggling for balance.

She remembers the next events in a series of disjointed flashes. She arrived at her grandfather’s place, but wished she was at her mother’s. Then she got a phone call from a man she met at the bar. She has a memory of walking outside, climbing into his van, thinking he was taking her home to her mother’s. Instead, they ended up at his townhouse. Taylor recalls having to sit down on his basement couch after being hit with another wave of nausea. And then she passed out.

“The next thing I know, when I came to, I was in his bedroom upstairs … with no clothes on. He was on top of me. We were having sex,” Taylor says.

She says she tried to push him off, and wanted to say no, but she isn’t sure if she managed to utter the word before falling unconscious again. The next time Taylor woke up, the man was downstairs, talking on the phone. Taylor says she pulled on her clothes, grabbed her purse and ran out the front door, leaving her shoes behind. She phoned her brother in tears as she sprinted down the street.

Her brother picked her up and took her home. She and her mother drove to the local hospital, where she was met by a sexual assault nurse examiner. The Chatham-Kent Police Service was notified right away.

This was June 12, 2016.

In July, police informed Taylor that the suspect had declined a formal interview, but not before telling them that what happened was consensual.

Taylor

Taylor says the police officer told her that a “normal person” would expect something sexual to happen if they went to someone’s house late at night.

Under Canadian law, an unconscious person cannot agree to sexual activity and neither can someone who is so intoxicated that they have been rendered incapable of consenting. In Taylor’s case, the investigating officer believed that, while Taylor had been drinking, she was still capable of consenting to sexual activity. In other words, the officer didn’t believe Taylor was too drunk to determine if she wanted to have sex – so the case was thrown out without charges.

Those who study rape and the law say that cases like Taylor’s – where a victim is extremely intoxicated at the time of a sexual assault – are incredibly common, although the public doesn’t hear about them because they rarely make it to court.

As part of a 20-month investigation into how Canadian police handle sexual assault cases, the Globe interviewed dozens of individuals who regularly work with sexual assault complainants, including nurses, crisis-centre staff members, criminologists, legal scholars, trauma specialists, police officers and Crown attorneys. They say that the vast majority of incapacity cases never go beyond a police investigation.

As part of its reporting, The Globe interviewed 54 people – including Taylor – about their experiences reporting sexual assault to police. Excluding eight cases in which the sexual abuse began when the complainant was a youth and the alleged perpetrator was a family member or friend, alcohol or drugs played a role in 18 cases – just shy of 40 per cent. Of those, nine were women who say they were sexually assaulted while either passed out or blackout drunk. (A person in a blackout hasn’t lost consciousness, but he or she will suffer temporary amnesia brought on by intoxication.)

Of the alcohol-related cases, 14 of the 18 were closed without charges. Two resulted in a conviction.

Lise Gotell, a professor at the University of Alberta who specializes in feminist legal theory, said she believes many front-line police officers don’t actually understand Canadian consent law. Police interview transcripts reveal some officers are unclear about even the most basic issues. For example, in Canada, there is what’s called an “affirmative consent” standard, meaning a person must indicate that they want to engage in sexual activity.

“So the question [police should be asking] isn’t: ‘Did you say no? Did you resist?’” Ms. Gotell said. “The question should be, ‘Did you indicate your consent? Did you indicate your willingness?’”

According to this standard, a person who is “incapable of consenting” cannot agree to sexual activity. What constitutes incapacity isn’t spelled out in the Criminal Code, but case law has found that a complainant must be able to understand the “risks and consequences” of the sexual activity.

Determining the threshold between very drunk and incapacitated is not an exact science. Further complicating matters is the fact that a severely intoxicated complainant may not remember significant portions of the incident. Biases that cast blame on victims who voluntarily consume drugs or alcohol also result in these sexual assault cases dropping out of the system.

“The further a case is away from the ‘real rape’ archetype – the stranger in the bushes, violent rape – the less likely police are to investigate,” Ms. Gotell said.

Of the few that do make it to court, convictions are not the norm.

In February, a Newfoundland jury found a police officer not guilty of sexual assaulting a woman whom he drove home from the bar district while on duty. The Crown argued that Const. Carl Douglas Snelgrove, who is married, took advantage of the intoxicated woman. Then, earlier this month, a Nova Scotia judge acquitted a Halifax taxi driver of raping a female fare who was found unconscious in the back of his cab, partially naked, having urinated on herself. The woman, whose blood alcohol level was found to be three times the legal limit, had hailed the cab just 11 minutes earlier. The Crown has announced it will appeal Justice Gregory Lenehan’s verdict, in part over concerns the judge did not properly apply “the test for capacity to consent.”

Both verdicts garnered national outrage and renewed calls for better judicial training. Justice Lenehan’s ruling also sparked a series of complaints to Nova Scotia’s Chief Judge.

In a recent high-profile Toronto trial, an Ontario court justice handed down a rare guilty verdict in an incapacity case, but only after police unearthed a mountain of outside corroborating evidence.

On Sat., July 18, 2015, K.S. woke up naked and alone in a strange hotel room, with no memory of how she came to be there. The night before, she had been out with friends at a bar, drinking vodka in a reserved bottle-service booth. The then 25-year-old remembers leaving to use the washroom. The next thing she can recall is a man she had never seen before, hovering over her. They were in the hotel room. K.S. told him “No,” but remembers nothing beyond that.

A sexual assault examination kit found semen inside of her. Moazzam Tariq was charged, days later, with sexual assault. He told investigators what happened was consensual.

This case could easily have ended up as just another “he said, she said,” but for security footage police were able to obtain. Videos collected from two night clubs – one of which K.S. has no recollection of ever attending – and from the hotel chronicle K.S.’s deteriorating condition. The footage reveals K.S. had met Mr. Tariq just 15 minutes before they walked – her staggering and him propping her up – out of the bar to the nearby Thompson Hotel. In the elevator up to Mr. Tariq’s room, K.S. can be seen leaning against the wall, struggling to stay awake. By comparison, Mr. Tariq appears to be sober and even singing to himself. The video was a crucial piece of evidence for the Crown, as it provided black-and-white proof of the state K.S. was in perhaps minutes before she was raped.

A compilation of security footage from The Everleigh nightclub as well as the Thompson Hotel that was shown in court.

In the absence of this kind of concrete evidence, many sexual assault cases collapse.

Detective Anthony Williams, who investigated K.S.’s allegation, said that Toronto Police would have charged Mr. Tariq even if they did not obtain the elevator footage, based on the credibility of K.S.’s statement and the fact that his DNA was found during the sexual assault examination kit. However, the detective noted, it would have been an “uphill prosecution.”

A dozen legal experts in consent law, including six Crown attorneys, told the Globe that some police officers are reluctant to lay charges if they believe the case won’t succeed in court. The reasons vary, they say. Sometimes police want to spare the victim from a gruelling trial process. Additionally, the unique stigma that comes with a sexual assault charge – which can stay with an accused even if a judge finds them innocent – can deter investigators from making an arrest in borderline cases.

“I think there is a perception that being arrested and charged for sexual assault will ruin your life,” said one Ontario Crown. “I think they hold these cases to a higher standard because of that risk.”

Finally, the experts said, high caseloads weighing on police officers can lead to a sort of triageing of files. An officer may believe a complainant, but if the evidence is such that, even in a best-case scenario, the odds of a conviction are slim, police may make a decision not to invest too much time in the investigation. This is particularly an issue for detectives who have been around a long time and have seen how rare it is for a judge to reach a guilty finding over incapacity, said another Crown.

“This case is ‘a mess’ – this is what I hear with incapacity allegations,” said Janine Benedet, a professor at the University of British Columbia and Canada’s leading legal scholar on alcohol and sex assault law. “I think it’s a little bit too convenient way of dumping cases that are considered by police and Crowns to be ‘a mess.’”

Ms. Benedet said anything less than near unconsciousness makes judges very uncomfortable.

This presents a Catch-22 for victims.

“We tend to want a level of intoxication that’s so high that we’ve now crossed into a threshold where the complainant has only minimal memory of what took place, or her memory of what took place is deemed unreliable because of her degree of intoxication,” Ms. Benedet said.

“So if you can remember what happened, you must not have been drunk enough, and if you can’t remember what happened, well, maybe you were drunk enough [to be incapacitated], but we don’t really know, because you can’t remember.”

This was a pattern among the 18 cases reviewed by the Globe.

Emilie

Emilie reported that she had been raped while intoxicated. Police told her that the suspects provided a video of her giving consent, but could not produce it when she asked.

Emilie R., a Laurentian University student, told police in Sudbury, Ont., that she had been raped by two male students after drinking half a bottle of wine and several shots of Fireball whisky. She was upfront with the investigating officer that her memory of the night was limited. Police notes show the two men told police that Emilie was a willing participant in a threesome. The case was closed as unfounded – meaning no crime occurred or was attempted. “Discussion had over alcohol tolerance and her small stature,” the officer wrote in her notes.

Candice

Police closed Candice’s case as a “he said, she said” but told her that if the suspect ever offended again, Candice could testify.

Candice Wright was 22 when she was raped, she says, by a man she met a bar in Red Deer, Alta. after a night of drinking and drug use. Ms. Wright woke up naked in the front seat of her van, with faint memories of her head hitting something over and over. Her last clear memory was bumping into the man on the dance floor before heading outside. The RCMP said the Crown concluded the case was not “prosecutable.”

All but a handful of the complainants said they felt judged because they had been drinking. In some cases, they said, they were literally blamed.

E.

E. says that during her interview, the police officer asked: “Do you want to ruin his life?”

“The police were initially [like], ‘Well, you drank alcohol,’” E., a Quebec woman, remembers.

No one is actually sure how many sexual assault cases involve alcohol or drugs, because more than 90 per cent of incidents are never reported. But some studies have suggested that in half of all instances, one or both parties consumed alcohol beforehand. Hannah Varto, a certified sexual-assault-examination nurse in British Columbia, estimates as many as 80 per cent of the sexual assault patients she has treated either knowingly, or unknowingly, ingested alcohol or drugs.

Sexual assault cases almost never hinge on whether a sex act occurred. More often than not, consent is the focus of an investigation, and the influence of alcohol complicates what are already notoriously difficult cases to prove.

But while the Canadian judicial system seems to struggle with establishing the line around incapacitation, sexual assault nurse examiners, who must make decisions about patients’ capacity to consent to an exam, say it’s pretty clear. “It’s meaningful conversation,” said Sheila MacDonald, the clinical manager of Women’s College Hospital’s Sexual Assault/Domestic Violence Care Centre in Toronto. “It’s talking with someone and then asking, can you repeat back to me what we just talked about? Or I’ll ask a question, can they answer? People that are outright staggering, slurring their words, tuning out, lack of focus, tired, hard to wake up etc. are not engaged in the conversation… cannot consent.”

It’s not uncommon for nurses to delay a kit over concerns that a victim is too intoxicated, said Ms. Varto.

In some paradoxical instances, a nurse has deemed a complainant too impaired to consent to an exam, but in court, a judge has found that they were able to agree to sex.

Elizabeth Sheehy, a law professor at the University of Ottawa and an expert on Canadian sexual assault legislation and legal practices, said she just recently reviewed one such instance with her class, R. v. Ryder, which went to the Supreme Court of British Columbia in 2011.

The case involved a 15-year-old complainant, E.K., and a 27-year-old accused. On the night in question, E.K. testified they had been consuming crystal meth and crack cocaine. She told the court that the drugs made her paranoid and caused her to hallucinate. When the accused began to make advances, E.K. says she told him no and tried to push him off, but he ignored her and raped her.

A passerby later found E.K. on the street. She was taken to the hospital for a sexual assault examination kit, but the nurses sent her home, because she was still too high, and hallucinating. When E.K. returned the next day, the nurse examiner documented bruises and abrasions on her body, and found her genitals to be red and swollen.

Despite this evidence, the judge found that the reliability and credibility of E.K.’s testimony was “too seriously undermined by her extensive drug use, her active hallucinations, and her own evidence that such drug use makes her paranoid.”

Michael David Ryder was acquitted of sexual assault, but convicted of sexually touching, because E.K. was under the age of 16.

“It’s clearly wrong … She was so intoxicated she couldn’t consent to the rape kit, but she could consent to sexual contact,” said Ms. Sheehy. “We have some of the strongest legal provisions around the world in terms of sex assault law, including some statements made by the Supreme Court of Canada. We have some pretty strong jurisprudence. The issue is we have a lack of will to actually apply it.”

Even when evidence is present, sometimes police fumble the case anyway – as appears to have been the situation with Taylor.

In her case, the Chatham police investigation actually did appear to collect strong evidence that the 21-year-old was extremely intoxicated – and plausibly unconscious – at the time of the alleged rape. However, it seems the lead officer misinterpreted the blood alcohol science.

Galit Rodan/The Globe and Mail

Taylor’s blood alcohol was measured at the hospital – which isn’t always done – and it came back showing 102 milligrams of alcohol per 100 millilitres of blood. (Taylor learned this information in an interview with the investigating officer, a copy of which was obtained by The Globe.)

The female officer told Taylor that while she wasn’t “sure how quick they took your blood” at the hospital, the result of 102 meant that Taylor’s blood alcohol “might have been 110 prior to that,” indicating she was not particularly intoxicated, the officer told her.

“From my 24 years of experience,” the officer told Taylor, “[102] is not an extremely high rate of alcohol in a person’s system.”

But that’s not correct. The timing of a blood alcohol test is crucial, according to two toxicologists who reviewed the case for the Globe.

The body eliminates alcohol at a rate of between 10 to 20 points per hour. Taylor’s blood was likely tested about seven hours after her last drink, which she estimates was at midnight. She arrived at the hospital about four hours later, she says. Her hospital records make no mention of blood collected for alcohol levels, but one document shows that she gave blood at 7:15 a.m. for the purposes of STD testing.

The hospital declined to comment on this story, but Ms. MacDonald, the provincial coordinator of the Ontario Network of Sexual Assault/Domestic Violence Care and Treatment Centres, said that typically, a sexual assault nurse examiner would want to take blood at only one time during an exam.

Two toxicologists interviewed by the Globe said that, given this scenario, it’s more likely Taylor’s blood alcohol was between 170 and 240 milligrams at its peak, which, at the high end, is three times the legal limit, and at the low end could cause blackouts and, possibly, pass-outs from intoxication.

Even if Taylor was tested the moment she arrived at the hospital, forensic toxicologist James Wigmore told The Globe, working backward from the levels on record, her blood alcohol would have been between 140 and 180, which still makes her version of events plausible.

“You can’t really say at 150 everyone will have a pass-out. You have to look at the whole incident. And in this case, where supposedly she’s drinking hard liquor in a short period of time, that’s very likely for a blackout for sure, and probably, maybe, even a pass-out,” said Mr. Wigmore.

“[Police] didn’t take into account the pharmacokinetics – which basically means: What the body does to drugs, how it’s absorbed and eliminated,” he said. “What she says she experienced that night, the scenario, is consistent with the blood alcohol.”

Many factors influence how a person will react to alcohol, including genetic factors, what they had to eat, a person’s tolerance, and the type of alcohol consumed, he said. Drinking liquor – as opposed to beer and wine – is more likely to coincide with memory loss or pass-outs. So is drinking very quickly. Taylor did both of these things.

The Globe interviewed Taylor’s mother, as well as a friend from the bar, who supported her version of events.

The Chatham police declined to comment on their blood alcohol conclusion, but in a statement, Insp. Ed Reed said that “this incident was thoroughly investigated … the evidence was then reviewed by the Crown Attorney’s Office, and charges were not proceeded with.”

A spokesperson with Ontario’s Ministry of the Attorney General declined to comment on the Crown’s involvement in the case.

Because the Chatham police, the Crown attorney and the hospital all declined to comment on the case, The Globe can’t verify the timeline of events that night. However, what is clear is that the majority of Taylor’s drinking occurred before 10:30 p.m., that her blood alcohol levels were likely tested many hours later, and that the investigating officer misinterpreted the science of how the body eliminates alcohol. Police also seem to have overlooked other evidence that the sex was not consensual – such as Taylor’s testimony, the fact that she ran out of the home without her shoes, that she phoned her brother in tears, and that she contacted police immediately.

Shortly after Taylor was told her case was being was closed, K.S.’s trial began in a Toronto courtroom.

Weeks later, the morning of the verdict, K.S. arrived at Toronto’s Old City Hall courthouse flanked by friends and family, prepared for either outcome.

While some investigators may feel they are sparing a victim unnecessary pain by putting them through a potentially unsuccessful trial, K.S. said that she was grateful to have her moment in court.

“If he gets off, I mean, at least I tried. Right? I know a lot of people don’t do this or can’t do this … their cases get thrown out. At least I’m getting – somewhat – closure. I tried. I faced my abuser,” she told The Globe in an interview at the end of the trial.

On the morning Oct. 7, 2016, Justice Mara Greene concluded that Mr. Tariq was guilty of sexual assault on the basis that K.S. was too intoxicated to “appreciate what was going on around her,” and, as such, did not have the capacity to consent to sexual activity.

“When I consider all the evidence, including the amount of alcohol she consumed … K.S.’s dazed and confused expression in the hotel lobby and elevator … and the fact that she was falling asleep in the elevator, I am satisfied beyond a reasonable doubt that at the time K.S. was in the hotel, she lacked the cognitive capacity to consent,” the judge concluded.

Mr. Tariq was sentenced to two years and nine months in jail.

He fled to Pakistan before his sentencing hearing, where he remains at large.

Robyn Doolittle is a reporter with The Globe and Mail’s investigative team.

Have you reported a sexual assault to the police? If you would be willing to share your experience with The Globe and Mail, please email rdoolittle@globeandmail.com

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