Crown to appeal acquittal of cabbie
• The Crown is appealing the acquittal of a Halifax cab driver accused of sexually assaulting a woman who was found intoxicated, unconscious and partially naked in his car.
Denise Smith, deputy director of the province’s Public Prosecution Service, said Judge Gregory Lenehan made multiple legal mistakes when he found 40-year-old Bassam Al-Rawi not guilty.
The provincial court judge ruled last Wednesday the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity — a ruling that has prompted debate over how the courts handle such sensitive cases.
Smith issued a statement Tuesday saying the grounds for an appeal were “solid.”
She said the judge erred in law by:
concluding the Crown had offered no evidence of lack of consent from the complainant;
engaging in speculation about consent rather than drawing inferences from the facts proven in the evidence;
offering an erroneous interpretation and application of the test for capacity to consent;
failing to determine whether the accused had taken all reasonable steps to ascertain that the complainant was consenting.
The statement said a notice of appeal has been filed with the Nova Scotia Court of Appeal.
A rally was held Tuesday outside Halifax City Hall, where protesters denounced Lenehan’s decision and welcomed the news of the appeal.
Roughly 300 people held signs and beat drums under cloudy skies as speakers spoke in front of an arch in Grand Parade Square.
At one point the crowd repeatedly chanted: “What do we want? Justice! When do we want it? Now!”
The Halifax-based Avalon Sexual Assault Centre issued a statement saying the case demonstrates the need to clarify the law on consent in the context of intoxication.
“We need to address the laws, policies, and other systemic barriers that continue to fail victims of sexual assault,” said executive director Jackie Stevens. “We also need to make sure that supports and services are easily accessible for victims.”
Also Tuesday, provincial Justice Minister Diana Whalen announced several sexual-violence initiatives.
Al-Rawi was charged after police found the woman, in her 20s, passed out and partially clothed in his car in the early hours of May 23, 2015.
During Al-Rawi’s trial in December and January, a police constable testified that she saw Al-Rawi shoving the woman’s urine-soaked pants and underwear between the front seats.
At the time of his arrest, Al-Rawi’s seat was partially reclined and the woman’s legs were resting on the back of the front bucket seats.
Al-Rawi’s pants were undone at the waist and his zipper was down a couple of inches, the officer said. Evidence of the woman’s DNA was found on Al-Rawi’s upper lip, but the origin of the bodily fluid couldn’t be identified.
Lenehan said the evidence was concerning, and that the officer was correct to arrest Al-Rawi because “any reasonable person” could believe that Al-Rawi was engaging in or about to engage in sexual activity with a woman who was incapable of consenting.
However, he said in his oral decision that the Crown provided no evidence on whether or not the woman consented to sexual activity.
Lenehan said for Al-Rawi to be convicted, the Crown had to show beyond a reasonable doubt that Al-Rawi not only touched the woman in a way that violated her sexually, but that it was done without her consent.
The judge said a person is incapable of consent if they are unconscious or are so intoxicated that they are unable to understand or perceive their situation. “This does not mean, however, that an intoxicated person cannot give consent to sexual activity,” he said. “Clearly, a drunk can consent.”
That comment has prompted condemnation of the judge by some citizens, a critical news release from sexual assault centres across the province, and anger from the woman at the centre of the trial.