‘CLEARLY, A DRUNK CAN CONSENT’
Outrage erupts after Halifax judge acquits cab driver in sex assault of extremely intoxicated passenger
HALIFAX— A Halifax taxi driver has been acquitted of sexually assaulting a young woman who was found drunk and unconscious in his cab, prompting a renewed debate over how Canadian courts react when the issue of consent is mixed with heavy drinking.
Judge Gregory Lenehan ruled the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity with Bassam Al-Rawi. The 40-year-old man was charged after police found the woman passed out and partly naked in his car on May 23, 2015.
The woman, in her late 20s, testified she had no memory of what happened, and the provincial court judge concluded his decision Wednesday by saying “a lack of memory does not equate to a lack of consent.”
Lenehan also bluntly stated: “Clearly, a drunk can consent.”
The ruling came days after a jury in St. John’s, N.L., acquitted police Const. Doug Snelgrove of sexually assaulting an inebriated woman he was driving home from a bar while on duty.
Now, Lenehan’s comments and the details of the Halifax case have reignited a spirited discussion about how the courts treat allegations of sexual assault when the complainants can’t recall what happened. Kim Stanton, legal director at the Toronto-based Women’s Legal Education and Action Fund, said consent is a key factor in such cases, but so is the victim’s level of incapacity.
“The Supreme Court of Canada has been very clear that a woman cannot consent to sex if she’s incapacitated, whether due to alcohol or otherwise, and that has been an important holding in our law,” she said Thursday.
“The law in Canada is that only yes means yes. That’s our standard of consent . . . It must be affirmative and ongoing consent.”
Stanton said that standard is not being applied evenly in courtrooms across the country, which she said is why the cases in Halifax and St. John’s are undermining confidence in the judicial system.
The Canadian Judicial Council confirmed Thursday it has received calls since Wednesday’s ruling from several members of the public who wanted to make a complaint against Lenehan, but the council does not review the conduct of provincial court judges.
In the St. John’s case last week, a 21-year-old woman who had been drinking downtown approached a parked police cruiser in the early hours of the morning in December 2014, and asked for a ride home.
At Snelgrove’s trial, she testified the night ended with her passing out — then waking up as Snelgrove was having sex with her.
The Crown argued Snelgrove, a 10year veteran of the Royal Newfoundland Constabulary, took advantage of a vulnerable woman. But the case turned on consent.
Snelgrove, 39, admitted he went into the woman’s home and had sex with her but he testified it was consensual. He said she did not appear drunk.
The woman said she could not remember if she had consented.
Wayne MacKay, an expert on human rights law at Dalhousie University in Halifax, said the issue of consent is the most difficult aspect of sexual assault cases.
And he took issue with Lenehan’s statement that: “Clearly, a drunk can consent.”
The law professor argued that one’s capacity to consent can be severely limited by the consumption of alcohol.
In the Halifax case, the woman testified that she had consumed three drinks at a downtown bar late on May 22, 2015. She told the court that the next thing she remembered was waking up in either the hospital or an ambulance, where she spoke with a female police officer.
“She doesn’t recall any of that because she was drunk,” Lenehan said in his oral decision. “What is unknown is the moment (she) lost consciousness. That is important. It would appear that prior to that she had been able to communicate with others. Although she appeared drunk to the staff at (the bar) . . . she had appeared to make decisions for herself.”
A forensic analyst determined that the woman’s blood-alcohol level was as high as 241 milligrams per 100 millilitres of blood. At that level, the woman would have had difficulty transferring her experiences from her short-term memory to her longterm memory, the analyst said.
Lenehan’s comments sent a tide of uproar across the country and spurred many to speak out.
An online petition calls the judge’s views of consent “antiquated and dangerous.” More than 3,000 people had signed the main petition by Thursday evening.
“He should not be in a position to hand down decisions allowing sexual predators to go free,” it reads.
Leah Parsons, the mother of Rehtaeh Parsons, has added her voice to those demanding a review of Lenehan.
Parsons’ 17-year-old daughter committed suicide in April 2013 following months of bullying related to an explicit photo of her and a boy that was shared around her high school.
A teen boy was charged with child pornography in that case and was sentenced to 12 months’ probation after a trial in Lenehan’s court.
A review into how police and the Crown handled the Parsons case found “errors from start to finish.”
“For this man to actually walk free after all of that evidence? It is just sickening. Disgusting,” Parsons said Thursday. “It’s sending such a horrible, horrible message to other victims of assault. How are they going to come forward? With files from Yvette d’Entremont and Cody McEachern, Metro Halifax