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 driver Bassam Al-Rawi.
The 40-year-old man was charged after police found the woman, in her 20s, passed out and naked from the breasts down in his car in the early hours of May 23, 2015.
The woman testified she had no memory of what happened in the cab, 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, in a case that sparked a protest outside police headquarters.
Now, Lenehan’s comments and the graphic 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 in an interview 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.
“That’s why so few women report their sexual assaults to police in the first place. Cases like this magnify the problem for the few women whose cases actually do proceed through to a trial.”
The Canadian Judicial Council confirmed Thursday it has received multiple complaints about Lenehan, but the council does not review the conduct of provincial court judges. A spokesperson for the Nova Scotia judiciary said the chief judge’s office, where complaints against provincial court judges are handled, could not comment on the case.
WATCH: Halifax justice under fire for comments in sex assault case
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, saying later she thought it was safer than taking a taxi.
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 10-year veteran of the Royal Newfoundland Constabulary, took advantage of a vulnerable woman. But the case – like the one in Halifax – 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.
“That’s really the large factual question that the judge has to deal with in each case … There certainly seems to be a lot of circumstantial evidence that the person was likely not capable of consenting, but not any absolute proof that that was the case.”
MacKay said the cases in Halifax and St. John’s both involve people in positions of trust, which makes the issue of consent more complex.
“Even if there was factual consent, if you’re a police officer giving someone a drive home or you’re a taxi driver giving a young woman a ride, surely there’s a right to expect … trust will not be broken in terms of sexual contact. That’s the other element that links these two and makes them problematic.”
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.
The judge said the woman couldn’t recall being turned away from the bar after midnight, nor did she recall arguing with a friend, texting others or hailing Al-Rawi’s cab at 1:09 a.m.
“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.”
The woman would have been incapable of giving consent if she was unconscious or was so intoxicated that she was “incapable of understanding or perceiving the situation that presented itself,” he said.
Lenehan went on to note that intoxication tends to increase risk-taking behaviour.
“In testimony, (the woman) could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity,” he said. “The Crown failed to produce any evidence of lack of consent at any time.”
Court heard that when a police officer spotted the woman in the back seat of the cab at 1:20 a.m., she was lying unconscious with her legs propped up on the two front seats.
The 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. The woman’s wallet, purse and shoes were in the front passenger area, and her pants and underwear were tangled inside out and wet with her urine, court heard.
The judge said the evidence indicated that Al-Rawi had removed the woman’s pants.
“I don’t not know if Mr. Al-Rawi removed her pants at her consent, at her request, with her consent, without her consent – I don’t know.”
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 long-term memory, the analyst said.
“This would explain why (she) was able to carry on interactions … but then have no memory for much of what happened,” Lenehan said.
Municipality may revoke taxi licence for good
Al-Rawi may not return to driving a taxi despite being acquitted as his licence could be permanently revoked, according to the Halifax Regional Municipality (HRM).
HRM spokesperson Brendan Elliott told Global News on Thursday the city was conducting an internal investigation into whether they will permanently revoke the licence. This will include pulling evidence from the courts, reviewing court transcripts and then making a final decision on whether Al-Rawi will be able to drive a taxi, Elliott said.
“Passengers are in a vulnerable situation so we want to be in the utmost trust that drivers will act professionally,” Elliott said. “We’ve suspended and revoked licences without people being charged with criminal offences – it’s all about the safety of the passengers.”
Elliott said Al-Rawi is not registered to drive for any company. A statement from HRM said Al-Rawi’s licence was originally suspended in May 2015, and he received a letter from the licensing office that his privileges would be reviewed at the end of criminal proceedings. In August 2015, the appeals standing committee reinstated Al-Rawi’s licence with conditions including that he only drive between 6 a.m. and 6 p.m., and that a video camera be installed in his car. Elliott told Global News that Al-Rawi met the conditions but in September 2015, he was unable to provide specific documentation that he was registered to drive for a business.
Wednesday’s ruling, first reported by Metro Halifax, has faced complaints from across the Halifax Regional Municipality (HRM).
On Thursday, a petition was started calling for a formal inquiry into Lenehan, which has received almost 4,500 signatures by 7 p.m. Thursday. Two Facebook events were also started to protest the decision – as of 7 p.m., more than 1,500 said they were interested in attending.
A statement released by Sexual Health Nova Scotia also expressed concern over the ruling.
“From our perspective, clearly a drunk person cannot consent to sexual activity,” the statement reads.
Justice Minister Diana Whalen said in a statement to Global News that “the Public Prosecution Service is considering an appeal” in response to complaints.
The statement goes on to say that she cannot comment further as there is a 30-day period for the Crown to appeal, and so the “matter is still before the courts.”
An emailed statement from Chris Hansen with the Nova Scotia Public Prosecution Service said the Crown will review the decision to determine “if there is a basis for appeal.”
“The judiciary is independent and I must respect that,” Whalen’s statement reads. “As the Minister of Justice, this is something I take very seriously. Sexual assault complaints must be treated fairly and effectively, with sensitivity, respect and compassion.”
Whalen added no one should “feel deterred” from coming forward.
–With files from Jennifer Grudic and Sean Previl, Global News