Here’s why the issue of consent is not so clear in sexual assault cases

Click to play video: 'Halifax court decision involving cabbie causes backlash on social media'
Halifax court decision involving cabbie causes backlash on social media
WATCH ABOVE: A court decision involving a Halifax taxi driver is creating a wave of backlash on social media. Global's Jennifer Grudic reports – Mar 2, 2017

A controversial sexual assault case in Halifax has re-ignited debate about consent and how the courts treat allegations of sexual assault when the complainants can’t remember what happened.

On Thursday, a Halifax taxi driver was acquitted of sexually assaulting a young woman who was found drunk and unconscious in his cab, naked from the breasts down, in May 2015. The woman testified she had no memory of what happened in the cab, prompting provincial court Judge Gregory Lenehan to conclude that “a lack of memory does not equate to a lack of consent.”

READ MORE: Halifax cabbie found not guilty of sexually assaulting woman who was drunk

The judge also stated, “Clearly, a drunk can consent.”

The issue of consent is a key factor in allegations of sexual assault – but so is the victim’s level of incapacity.

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However, the Supreme Court of Canada has clearly stated that a woman cannot consent to sex if she is incapacitated.

“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,” said Kim Stanton, legal director at the Toronto-based Women’s Legal Education and Action Fund.

“The law in Canada is that only yes means yes. That’s our standard of consent … It must be affirmative and ongoing consent.”

In 2011, the Supreme Court ruled a woman cannot give “advance consent” to sexual activity while unconscious, a move legal experts said provided clarification about the idea of implied or advanced consent.

READ MORE: Halifax police release new details about taxi sexual assaults

“If the complainant is unconscious during the sexual activity, she has no real way of knowing what happened and whether her partner exceeded the bounds of her consent,” the ruling said.

However, Stanton said this standard is not being applied evenly in courtrooms across the country, expressing concern that cases like the one in Halifax may undermine 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.”

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In court, 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.

In his decision, 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 Bassam Al-Rawi’s cab at 1:09 a.m.

READ MORE: Halifax taxi sex assaults: What are police doing about 14 cases over 5 years?

“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.”

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The police officer who arrived on scene 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 judge said the evidence indicated that Al-Rawi had removed the woman’s pants; however, he said: “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.”

WATCH: Halifax justice under fire for comments in sex assault case

Click to play video: 'Halifax justice under fire for comments in sex assault case'
Halifax justice under fire for comments in sex assault case

A decision in the Halifax  case came just 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.

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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.

Issue of consent is the most difficult in sexual assault cases

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.”

READ MORE: Fifth Halifax woman reports being sexually assaulted in taxi

The law professor argued that one’s capacity to consent can be severely limited by the consumption of alcohol.

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“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.”

— With files from Global News reporter Nicole Bogart

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