Complaints mount over judge’s assault comments

COMPLAINTS PILE UP AS NOVA SCOTIA COURT ACQUITS TAXI DRIVER OF SEXUALLY ASSAULTING INTOXICATED PASSENGER

ANova Scotia judge has acquitted a Halifax taxi driver of sexually assaulting a woman in his cab because he could not conclude that she had not consented despite being intoxicated.

“Clearly, a drunk can consent,” said Judge Gregory E. Lenehan in finding Bassam Al-Rawi, 40, not guilty on Wednesday of sexually assaulting the woman in May 2015.

Const. Monia Thibault found the woman, in her 20s, “naked from the breasts down” and unconscious in the back seat of Al-Rawi's cab, according to the ruling. The officer testified that Al-Rawi's pants were down and he was holding the woman's urine-soaked tights and underwear.

The woman, whose identity is protected by a publication ban, testified she has no recollection of the event.

While she was unconscious when the police officer found her and therefore unable to consent, the judge said it is “unknown” when she passed out, and “this is important” as she may have consented to the encounter before losing consciousness.

He acknowledged that someone “who is unconscious or is so intoxicated ... as to be incapable of understanding or perceiving the situation that presents itself ” cannot provide consent under Canadian law.

“This does not mean, however, that an intoxicated person cannot give consent to sexual activity,” Lenehan said.

The complainant's blood alcohol level was between 223 and 244 milligrams of alcohol in 100 millilitres of blood; an expert testified this would mean she was drunk enough to both forget events and lose track of her surroundings.

But the judge cited a forensic expert and concluded she may have been “capable of appearing lucid but drunk and able to direct, ask, agree or consent to any number of different activities.”

Her DNA was also found on Al-Rawi’s upper lip, but the judge suggested there were reasonable means other than assault by which it might have got there, perhaps because Al-Rawi “intentionally or absentmindedly” wiped his lip after handling her urine-soaked pants.

Lenehan said Al-Rawi had a “moral or ethical” duty to get the complainant home safely, and he “is not somebody I would want my daughter driving with or any other young woman.”

“Once he saw she had peed her pants, he knew she was quite drunk. He knew going along with any flirtation on her part involved him taking advantage of a vulnerable person,” said the judge.

The ruling has prompted a number of complaints to the Canadian Judicial Council, according to a spokesperson with the Nova Scotia judiciary. However, as Lenehan is a provincial court judge, complaints should be sent to the Office of the Chief Judge.

“We should be concerned when a trial judge in a sexual assault case refers to a complainant as ‘a drunk,’” said Elaine Craig, an associate professor of law at Dalhousie University.

Although she hadn’t read the ruling, she said in general, the Criminal Code says sexual contact is assault when someone “is incapable of consenting to (sexual) activity.”

Craig said that doesn’t mean someone needs to be passed out.

“You can’t consent if you lack capacity and to equate incapacity with unconsciousness is wrong. Lack of capacity presumably begins at some point prior to unconsciousness,” she said.

Craig is among the legal experts who called for an inquiry into Justice Robin Camp, who asked a sexual assault complainant why she couldn’t keep her “knees together” and said “sex and pain sometimes go together.”

Farrah Khan, co-ordinator of Ryerson University’s office of sexual violence support and education, said all too often, whether it’s police or judges or lawyers, intoxication is used to discredit complainants, even when there’s evidence an assault occurred.

She said that was the case in a recent trial in St. John’s, N.L., where a police officer was acquitted of sexually assaulting a 21-year-old woman because she was drunk.

“Drinking doesn’t cause sexual assault, rapists do,” Khan said.

Lenehan served as a Crown prosecutor for 20 years before being named to the bench in 2010. He was unable to comment on the ruling, and Al-Rawi’s lawyer did not return a request for comment. A spokesperson for the Crown prosecutor’s office said they are reviewing the ruling and considering an appeal.