Crown appealing cabbie’s acquittal
Official says trial judge made several legal mistakes in Halifax sexual-assault case
HALIFAX— The Crown is appealing the acquittal of a Halifax cab driver accused of sexually assaulting a woman who was found intoxicated, unconscious and partially naked in his car.
Denise Smith, deputy director of the province’s Public Prosecution Service, 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 the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity — a ruling that has prompted protests and much debate over how the courts handle such sensitive cases.
Smith issued a statement Tuesday saying the grounds for an appeal were “solid.” She 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.
The Halifax-based Avalon Sexual Assault Centre issued a statement saying the case demonstrates the need to clarify the law on consent in the context of intoxication.
“We need to address the laws, policies and other systemic barriers that continue to fail victims of sexual assault,” said executive director Jackie Stevens. “We also need to make sure that supports and services are easily accessible for victims.”
The centre said victims of sexual violence rarely see their perpetrators held accountable by the justice system, citing statistics showing that between 2005 and 2014, only 7 per cent of all alleged sexual assaults involving adults in the Halifax region resulted in a conviction.
Also Tuesday, provincial Justice Minister Diana Whalen announced several sexual-violence initiatives.
She said the province will hire two special prosecutors to handle sexual assault cases and will provide specialized training for Crown attorneys, seek to work with Ottawa to give victims free independent legal advice, audit police services to ensure they have “the appropriate capability to investigate sexual assaults” and open a new Domestic Violence Court in Halifax.
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 for Al-Rawi to be convicted, the Crown had to show beyond a reasonable doubt that AlRawi not only touched the woman in a way that violated her sexually, but that it was done without her consent.
The judge 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. “Clearly, a drunk can consent.”