Judge Gregory Lenehan’s decision to acquit a Halifax taxi driver of sexual assault charges is going before the courts, as Nova Scotia’s public prosecution service announced an appeal Wednesday, focusing mainly on the issue of consent.
Bassam Al-Rawi was found not guilty of sexually assaulting a passenger found partially naked and unconscious in the back of his car in May 2015.
The Crown said Wednesday it will appeal the ruling, reported first by Metro Halifax, in which Lehenan said “clearly a drunk can consent,” on the following grounds:
- the judge erred in law in holding the Crown had adduced no evidence of lack of consent on the part of the complainant
- the judge erred in law by engaging in speculation on the issue of consent rather than drawing inferences from the facts proven in the evidence
- the erred in law by failing to give proper legal effect to the facts found by him
- the judge erred in law in his interpretation and application of the test for capacity to consent
- the judge erred in law by failing to direct himself on the provisions of section 273.1 of the criminal code
- the judge erred in law by failing to determine whether the accused had taken all reasonable steps to ascertain that the complainant was consenting
- such other grounds of appeal as may appear from a review of the record under appeal
“The Crown is in a unique position compared to the defence … the defence for instance can argue what they consider to be an unreasonable verdict, we can’t, we have to find an error of the law,” Crown Prosecutor Jennifer MacLellan told Global News Wednesday.
“We made the determination that we did in fact think there were errors of law, and as such we’ve filed our notice of appeal.”
Wording of oral decision highly controversial
The wording used by Lenehan in last week’s ruling has been a source of contention in Halifax and across the country, with many calling for the judge’s removal from the bench.
The complainant in the case, a woman in her 20s, testified during the trial that she could not remember the events leading up to her being found by a Halifax Regional Police officer in the back of Al-Rawi’s cab, naked from the breasts down.
“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.”
Lenehan went on to say 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.”
WATCH: Public anger over the acquittal of a cab driver spilled out onto the streets of Halifax Tuesday, as the crown annouced they will file and appeal. Global’s Jennifer Grudic reports.
Crown’s appeal focused on issue of consent
MacLellan said the six specific errors and one generic error that made up the basis for the appeal all centre around consent, adding the Crown believes Lenehan misunderstood, misapplied and misinterpreted the issue of consent when making his decision.
“The opinion that we’ve reached is that there were clear errors of law, both in his interpretation of what the law says about consent, and in his application of the law,” she said.
“What we’ve identified is that he engaged in impermissible speculation in regard to finding that there was no consent, that his finding that the Crown had not presented evidence that there was a lack of consent was erroneous, that he didn’t sufficiently review the relevant sections of the criminal code regarding consent and who can consent and in what circumstances.”
MacLellan said the Crown believes that based on the findings Lenehan made himself, he couldn’t have come to the not-guilty verdict, so they’re asking the Nova Scotia Court of Appeal for a substitute conviction — meaning the appeals court would take the finding of facts and come up with their own conviction for Al-Rawi.
The other possibility the Crown is hoping for in this appeal process is that a new trial be ordered based on the errors of law.
Groups across Halifax and the rest of the province have organized protests, filed formal complaints and written letters expressing their frustrations and concerns.
A large protest is planned at Grand Parade in Halifax on Wednesday at 3 p.m.
— With files from The Canadian Press.