Case comes down to capacity to consent
Jury in Christopher Yip sexual assault trial begin deliberations after closing arguments
Few crimes are as polarizing as sexual assault.
It can, in some cases, be difficult to decide if a crime has even taken place.
That responsibility now lies with the eight women and three men of the jury in the trial of Christopher Yip.
Monday at 5 p.m., on the sixth day of the trial, the jurors were sequestered to begin deliberations.
Yip is charged with sexual assault and “administering a stupefying drug with the intent to enable or assist himself to commit the indictable offence of sexual assault.”
In his closing arguments, assistant Crown attorney Gordon Akilie told jurors “the only reasonable conclusion” they can come to “is that Mr. Yip drugged (the complainant). He put the MDMA in the drink” and “he took her home and repeatedly had sex with her. She didn’t have the capacity, the ability to consent.”
Jurors heard previously from a McMaster University student who said she met her friend Yip for beer at a bar in December 2018. He went to buy her a second pint and, though it tasted off, she drank it. Shortly after, she began feeling “foggy.” Later she woke, naked, in his bed.
The following night, she skipped an exam and had a rape kit done.
Her identity is protected by a publication ban.
The Crown and defence agreed forensic testing shows Yip’s semen was in the student’s body. Both accepted an expert toxicologist’s testimony that the drugs MDMA (also known as ecstasy or molly), its derivative MDA and methamphetamine were also detected.
The case turns on the issue of capacity to consent, Akilie said in his closing.
Even if jurors disagree Yip drugged the student, he still “took a young woman, who by all accounts was messed up, he took her home and repeatedly had sex with her.”
“She didn’t have the legal capacity, the ability to consent.”
Akilie said none of the alternative suspects suggested by the defence could have drugged the student: she didn’t drug herself because she and her exboyfriend testified she wasn’t a drug user and it would be “some random coincidence” if she dropped ecstasy before an impromptu meeting with Yip; a friend she had coffee with didn’t do it because she felt well when she left his home; the bartender didn’t do it because she didn’t have drugs; and the “sketchy guy” at the bar …
“The lone dancer? Party for one,” quipped the Crown. “Somehow the sketchy guy drugs the drinks, like some kind of evil magician?”
When the student told Yip she may have been drugged, he looked into her eyes and agreed.
Yet rather than take her to get medical help, he took her to his apartment and “repeatedly had sex with her while she is feeling unwell,” said the Crown.
Though her testimony was “shaky” in some areas, the student was “sincere, honest, credible” and on the core issues of capacity and consent, “she was unwavering,” the Crown said.
Yip’s lawyer, Lauren Wilhelm, saw it differently.
The student is unreliable, she insisted in her closing arguments. Sometimes the student contradicted herself and admitted mistakes. Other times, Wilhelm said, she lied.
Wilhelm described her evidence as “unreliable and admittedly flawed.”
Dealing with the drug charge, Wilhelm referenced testimony from the toxicologist who said MDMA is not a typical date rape drug and does not affect memory.
But its known effects — such as enhanced sociability — mirror the student’s description of her mood when she finished having coffee with her friend.
The behaviour of the “over friendly” and sketchy guy at the bar was akin to somebody who is on MDMA.
The amount of methamphetamine found in the student’s urine could mean it laced the MDMA, or that she took methamphetamine on her own, the defence said.
As for the sexual assault charge, how can the jury know if the student consented to sex with Yip or not? She testified she has no memory of anything she said at his apartment.
“Even (she) doesn’t know what happened that night,” Wilhelm said.
The few memories she does have are “devoid of surrounding circumstances or details that could help with the issue of consent or capacity.”
When does impairment become incapacity under the law?
“It takes a heck of a lot,” Wilhelm said. “It may be morally repugnant to have sex with someone who is in a state of impairment,” but it doesn’t necessarily make it illegal, said the defence.
Wilhelm emphasized the two foundational principles of criminal law: the presumption of innocence and the burden of proof, which lies with the Crown. She said society has challenged those principles in the wake of the #MeToo movement, which asks for survivors to be believed.
But Yip is to be presumed innocent and no witness, including the student, is presumed to be “inherently reliable,” Wilhelm said.
In her charge to the jury, Justice Kim Carpenter-Gunn gave an “anti-bias instruction,” saying it is “a myth” that sexual assault complainants fabricate evidence more than complainants in other crimes.