Video key as jurors about to start deliberations at gang sex assault trial

For weeks, jurors in a Toronto courtroom have been pouring over grainy security camera video in a contentious sexual assault trial — but with the jury about to start deliberations, just what that video proves is still very much in question.

The College Street Bar's eight surveillance cameras captured most of what the Crown alleges was an all-night sexual assault on the night of Dec.14, 2016.

The woman involved in the case, whose identity is protected by a publication ban, told the court she hazily recalls having five drinks and willingly snorting cocaine before she was repeatedly raped and forcibly confined at the bar.

The men on trial — former owner Gavin MacMillan and former manager Enzo De Jesus ​​Carrasco — have testified the sex was 100 per cent consensual. They have pleaded not guilty to charges of gang sexual assault, forcible confinement and administering a stupefying drug. De Jesus Carrasco has also pleaded not guilty to two additional charges of sexual assault.

The video that jurors spent nine hours watching is at the heart of the case. Each side says it strengthens their narrative, but a key component is missing: the sound.

Without it, jurors are left to decide for themselves who is telling the truth — and much of their decision hinges on the interpretation of what they saw. Deliberations are set to begin after Justice Michael Dambrot gives his charge to the jury, which will begin Tuesday.

Here are several key moments the cameras captured that highlight the challenge the jury faces.

The use of drugs and alcohol

At 12:03 a.m. that morning, MacMillan is seen on video cutting a line of cocaine. He testified that moments before, the woman told both men she wanted to have sex with them.

"At this point, she was making very sexually suggestive comments. She told me ... she wanted to have a threesome ... She was very forward," MacMillan said. "She was very articulate in what she wanted … She used the term polyamorous which surprised me and really stuck in my head."

But Crown Rick Nathanson argued the video showed a very different scene — one where the woman was extremely intoxicated, high on cocaine and unable to articulate much of anything.

MacMillan denied that in cross-examination. "She is communicating very clearly ... without the audio, you don't have the context," he said.

MacMillan also testified that the woman told him she wanted rough sex. 

"She put her arms around me … then she kind of got down on her knees; this is when it became very evident that she wanted this kind of dominant/submissive interaction or relationship," he said. "Like she was very much playing the submissive role at this point, like getting down on her knees and and looking up at me."   

But Nathanson said the video showed the woman putting her arms around him because she couldn't stand on her own.

"She needs to grab onto you just to hold herself vertical and she needs to hold onto you to keep from falling down," he said.

Woman slapped

MacMillan later testified the woman asked him to slap her. He can be seen in the video taking off her hat and slapping her with it in a manner he described as "soft and playful." 

The Crown saw things differently. Nathanson suggested in cross-examination that there was "nothing soft about that," and the impact "caused her head to snap to the right."

"It was a playful slap and it turned her on," MacMillan responded.

How conscious was she?

At 11:32 p.m., half an hour before MacMillan and De Jesus Carrasco testified the woman consented to having sex, the video shows her stumbling back into the bar and slumped over in a chair. She remained motionless for nine minutes. During this time MacMillan was at another bar a few doors down and didn't see her, court heard. 

De Jesus Carrasco, however, was in the bar. He testified the woman told him she was tired after taking some pills. The court has heard the woman took prescription medication for a medical condition.

"Was she passed out?" Nathanson repeatedly asked during cross-examination.

"No," replied De Jesus Carrasco, He told the court the woman was speaking clearly, moving in the chair, and never unconscious.

2 more sex assault charges

De Jesus Carrasco was the first one captured on video having sex with the woman in the bar. Those images are being used by the Crown to support one of his additional sex assault charges. 

Video showed him chatting with the woman earlier in the evening and the two appear to engage in friendly conversation.

De Jesus Carrasco testified that before 10:30 p.m., he asked the woman if he could try to give her an orgasm.

The video shows him pulling her pants down and engaging in what he said was consensual sex. The Crown argued the images showed her backing away, pulling up her pants and shaking her head.

"You just won't take no for an answer," Nathanson said when cross-examining De Jesus Carrasco.

But De Jesus Carrasco replied that is incorrect, and again pointed to the lack of sound on the video.

"You're talking about a physical act that you can see on a camera, but you can't hear anything," he said. 

"She's kissing me right now." 

Shortly after this happened, the two can be seen on the video behind the bar and shaking a drink together. The Crown suggested that at this moment the woman backed away again.

"She's telling you to stop," Nathanson said.

De Jesus Carrasco replied that he didn't know what the woman was saying at that exact moment, but said she stayed all night, so she was fine with it.

Defence lawyers have argued the woman did consent to the sexual activity, but regretted her actions the next day and then went to police.

The jury has now heard all of the evidence, as well as closing remarks from the Crown and defence.