The Nova Scotia Court of Appeal has ordered a new trial for a former Halifax taxi driver who was found not guilty of sexually assaulting an intoxicated female passenger.
Bassam Al-Rawi was charged in May 2015 after a Halifax Regional Police officer found a young woman passed out and partially naked in the back seat of his cab.
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Al-Rawi was acquitted in March 2017 when Judge Gregory Lenehan said “clearly, a drunk can consent.”
The decision made national headlines and prompted protests and calls for Lenehan’s removal as a trial judge. As well, the Nova Scotia Judiciary announced an independent review committee would be investigating Lenehan after a number of complaints were filed.
The Crown appealed the acquittal last November.
WATCH: Protests planned in Halifax over Judge Gregory Lenehan’s sexual assault decision
In its unanimous decision released on Wednesday, the court of appeal said the trial judge discounted the “substantial body of circumstantial evidence of lack of consent or capacity to consent.”
It also noted that the comment, “Clearly, a drunk can consent,” is legally correct but that the judge erred in law when he equated incapacity only with unconsciousness.
Under the law, the Crown was obligated to prove the complainant was not capable of understanding the nature of the sexual act.
READ MORE: Groups call for removal of ‘drunks can consent’ judge in Nova Scotia
The woman, who was found unconscious in the cab, told police she couldn’t remember what happened.
During Bassam Al-Rawi’s trial, an expert testified that the young woman was extremely intoxicated after drinking five draught beers, two tequila shots and one vodka-cranberry drink while at a downtown bar.
With a file from The Canadian Press