Cabbie acquitted of sex assault faces new trial

HALIFAX — Nova Scotia’s highest court has ordered a new trial for a taxi driver acquitted of sexually assaulting a highly intoxicated passenger, saying the trial judge erred in law by finding there was no evidence of lack of consent.

In a unanimous decision released Wednesday, the Nova Scotia Court of Appeal found the judge ignored or disregarded circumstantial evidence that would have allowed him to infer the complainant did not voluntarily agree to engage in sexual activity, or that she lacked the capacity to do so.

The woman was found unconscious in Bassam Al-Rawi’s cab early on May 22, 2015.

During Al-Rawi’s trial, an expert testified the woman had consumed five draught beers, two tequila shots and one vodkacranberry drink while at a downtown bar.

Text messages sent by the woman after she left the bar were riddled with mistakes and were, at times, largely incoherent, court heard.

At the conclusion of Al-Rawi’s trial, provincial court Judge Gregory Lenehan said he accepted evidence that the woman had urinated in her pants before the cab driver removed them.

Court heard that when a police officer spotted the woman in the cab at 1:20 a.m., she was lying unconscious, naked from the waist down with her tank top pushed up and her legs propped up on the two front seats.

In an oral ruling delivered last March, provincial court Judge Gregory Lenehan said there was no evidence of a lack of consent or a lack of capacity to consent.

Lenehan’s decision — now the subject of an independent review — sparked public outrage. In particular, the judge faced sharp criticism for saying: “Clearly, a drunk can consent.”

The appeal court found Lenehan’s statement was correct in law, but the three justices concluded his application of the consent test revealed a legal error when he equated incapacity only with unconsciousness.