N.S. judge erred in clearing cabbie of sex assault: Crown

DRUNK PASSENGER

The vehicle was found in a neighbourhood far from the woman’s home, only 11 minutes after she got in the taxi shortly after 1 a.m.

A constable testified that the driver was seen shoving the woman’s pants and underwear between the front seats. As well, his pants were undone around his waist and his zipper was down.

“This circumstantial evidence created a tight web around Mr. Al-Rawi from which he could not escape,” MacLellan told the court.

By suggesting there was no evidence dealing with the woman’s capacity to consent, the judge made an error in law, MacLellan said.

Al-Rawi’s lawyer, Luke Craggs, said the evidence wasn’t as clear as the Crown had suggested.

He said many of the woman’s text messages that night had proper spelling and grammar, and he pointed to evidence the woman had an upsetting argument with a friend before getting in the taxi.

“(The judge) decided the evidence correctly,” Craggs told the court, adding that the oral decision appeared to be a “reluctant acquittal.”

“What happened in the taxi is really unknown ... (The judge) struggled with a gap in the evidentiary record.”

Craggs also noted that during the trial the Crown never specifically asked the woman if she did not consent to sex with Al-Rawi.

MacLellan said asking such a question would have been improper, as it could have opened the door to questions about the woman’s previous sexual behaviour, which is not permitted in sexual assault cases.

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 did not consent to sexual activity with the driver.

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.”

Lenehan’s words set off a storm of social media criticism and two public protests. Based on a complaint, the decision is the subject of an investigation by a threemember review committee appointed by Nova Scotia’s chief justice.