Warning: This story contains graphic descriptions of sexual assault.
A decision is expected later this week in the high-profile case of a former Halifax cab driver accused of sexually assaulting a woman in his apartment eight years ago.
Bassam Al-Rawi appeared in Nova Scotia Supreme Court on Thursday, where final arguments were made by Crown attorney Carla Ball and defence lawyer Ian Hutchison.
“The Crown submits there was no consent, none whatsoever throughout this entire sexual assault,” Ball told Justice Gerald Moir.
“She had no reason to think she was unsafe, she did not have the benefit of hindsight…She did not experience fear until he began to rape her.”
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Al-Rawi is alleged to have assaulted a 27-year-old woman on Dec. 15, 2012, after picking her up from a night of drinking downtown. The woman, whose identity is protected under a publication ban, has testified that she went to his apartment and first pretended to be asleep as he peeled off her clothes, vaginally penetrated her, and attempted both oral and anal sex.
She testified that he was kind to her until the moment of the assault and that she did briefly “get on top of him” at his request — honesty the Crown argued adds weight to her credibility. She also brushed his hand away when he attempted anal sex.
“Her memory was strong because it was a violent moment,” said Ball. “She is reporting this crime not for self-serving interests… she felt extremely guilty that it went on to (allegedly) happen to someone else.”
Ball also said it’s important for the judge to remember, that entering the apartment is not an indication of consent, nor is fighting, struggling or vocalizing the word ‘no’ a requirement of non-consent.
In September 2019, Al-Rawi was found not guilty of sexually assaulting a woman who was found unconscious in the back of his taxi in May 2015.
That was a retrial — he was initially acquitted of the crime in an earlier trial in May 2017, but the Nova Scotia Court of Appeal ordered a new trial after it was found that the trial judge erred by ignoring circumstantial evidence.
That case garnered national attention after Judge Gregory Lenehan stated that “clearly, a drunk can consent.”
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Hutchinson, in arguments defending Al-Rawi against the 2012 allegation, said there is no forensic evidence proving Al-Rawi is the person who assaulted the victim. His DNA was not detected — nor any human semen — in tests conducted by a Sexual Assault Nurse Examiner (SANE) on the victim after the alleged assault.
Hutchison also argued that a video tape of the apartment parking lot, in which a man and a woman are seen exiting a cab on the night of the alleged offense, cannot positively identify Al-Rawi beyond reasonable doubt. The video does not show colour, is pixellated and has exposure problems, said Hutchison.
He further argued there’s no evidence tying the parking space number in the video — 10 — to the unit rented by Al-Rawi in the building, and pointed out that when asked to identify the person who assaulted her in court, the victim did not identify Al-Rawi, who was sitting a few feet away from her.
“That must begin to raise reasonable doubt in the mind of this court,” he said.
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Ball, on behalf of the Crown, argued the video is proof of identification, as is the fact the Al-Rawi stated, “I know this girl…She slept in my place,” when shown a photo of the victim by a police officer many years ago. Hutchison, however, countered that the photo was never entered into the court as evidence, so it’s unclear what it can actually prove.
Hutchison has said his client has made “no admissions” of any kind in the case, which resumed this week after a lengthy break due to the COVID-19 pandemic.
He further submitted that the victim had “convenient memory loss” when it comes to many of the night’s events — apart from the moment of the alleged assault — and that a man could not have easily taken her clothes off without help, if she was “playing dead.” He also claimed that because the woman brushed a man’s hand away as he attempted anal sex, she was able to consciously indicate which activities she did and did not consent to.
Al-Rawi now lives in Germany, but has attended his court dates in Halifax with his wife.
Justice Moir is expected to announce the outcome of this case on Friday.
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