Sex-assault acquittal appealed
HALIFAX — The Crown will appeal the acquittal of a Halifax cab driver accused of sexually assaulting an intoxicated woman in his taxi, Nova Scotia’s prosecution service announced Tuesday as hundreds gathered to protest the judge’s ruling.
Public prosecutions deputy director Denise Smith 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 that the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity — a decision that has prompted protests and much debate over how the courts handle such sensitive cases.
“We have conducted a legal analysis of the judge’s decision and have concluded there is a solid basis to appeal the ruling,” Smith said in a statement Tuesday.
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.
Lenehan said a person is incapable of consent if unconscious or 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.”
Smith 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. • Failing to give proper legal effect to the facts. • Offering an erroneous interpretation and application of the test for capacity to consent. • Failing to direct himself on Criminal Code provisions that deal with aggravated sexual assault. • 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 appeal.
About 300 people held signs and beat drums under cloudy skies. At one point the crowd repeatedly chanted: “What do we want? Justice! When do we want it? Now!”