Judge failed to recognize evidence in cabbie’s sexual assault case: Crown

A Crown attorney says a Nova Scotia judge who acquitted a taxi driver accused of sexually assaulting an intoxicated passenger failed to recognize the nature of the evidence before him and made several errors in law.

Speaking yesterday before the Nova Scotia Court of Appeal, Crown lawyer Jennifer MacLellan said Judge Gregory Lenehan said three times in an oral decision that there was no evidence of a lack of consent.

However, MacLellan told the three-justice panel there was, in fact, ample circumstantial evidence to prove the victim was incapable of consenting to sexual activity in the cab.

MacLellan noted that an expert testified that the woman was extremely intoxicated after drinking five draught beers, two tequila shots and one vodka-cranberry drink.

As well, MacLellan said police found the partially naked woman unconscious in the cab only 11 minutes after she got in the taxi in May 2015.

Lenehan’s decision in March, which the Crown is seeking to overturn, concluded the Crown had failed to prove beyond a reasonable doubt that the woman, who had no memory of what happened, did not consent to sexual activity with the driver, Bassam Al-Rawi.

In his decision, Lenehan 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 at the time. “Clearly, a drunk can consent.”

The provincial court judge’s choice of words set off a storm of social media criticism, a letterwriting campaign calling for a judicial council investigation, and two public protests.

Lenehan’s decision is the subject of an investigation by a three-member review committee appointed by Nova Scotia’s chief justice.