Warning: This story contains graphic descriptions of sexual assault.
A Nova Scotia Supreme Court justice has ruled a Halifax cab driver that he found guilty of sexual assault will not be getting a new trial.
On Aug. 28, Bassam Al-Rawi was found guilty of sexually assaulting a woman in his apartment on Dec. 15, 2012 after picking her up in his cab downtown. The victim, whose identity is protected under a publication ban, had testified that she was picked up by the taxi driver after becoming lost downtown while highly intoxicated.
She testified that even though her recollection was blurry, she remembered that she was sexually assaulted while pretending to be asleep.
When delivering his decision in August, Justice Gerald Moir said he was convinced beyond a reasonable doubt that the victim did not consent to having sex with Al-Rawi.
Motion for a mistrial
During Al-Rawi’s sentencing hearing in Nova Scotia Supreme Court on Wednesday, his defence attorney, Ian Hutchison, put forward an application for a mistrial based on the contents of a victim impact statement filed by the complainant.
Hutchison claimed the three-page victim impact statement, which was received on Oct. 24, contained fresh evidence that showed bias against Al-Rawi.
“Clearly, the issue of Mr. Al-Rawi’s acquittal in the proceedings had an impact on (the victim),” Hutchison said.
Al-Rawi has been acquitted of the same sexual assault charge on two separate occasions. The first was in May 2017, when he was found not guilty of sexually assaulting a woman who was found unconscious in the back of his taxi in May 2015.
However, the Nova Scotia Court of Appeal ordered a new trial after it was found that the trial judge erred by ignoring circumstantial evidence. It was then that the case garnered national attention, when Judge Gregory Lenehan famously stated that “clearly, a drunk can consent.”
In September 2019, during the retrial, Al-Rawi was once again found not guilty.
During the trial on the most recent sexual assault charge, the complainant testified that she came forward after hearing news coverage of Al-Rawi’s first trial in 2017.
In her victim impact statement, the victim said with her coming forward rendering a guilty verdict, she feels she’s “done enough” to protect other women from having the same thing happen to them.
Hutchison questioned that statement, asking how she could be protecting other women when Al-Rawi was acquitted on two different occasions. He then questioned her motivation for coming forward, and claimed that was new evidence.
“The victim impact statement provides us with new evidence, further evidence, in terms of what was the impact for (the victim), and how did that in turn affect her in terms of her motivation in regards to the proceedings of Mr. Al-Rawi,” Hutchison told the court.
Victim’s motivations are not new evidence, Crown disputes
Crown attorney Carla Ball disputed that claim Wednesday morning, saying the victim impact statement only reiterated the discourse, evidence and emotions that came forward during the trial.
“What is being stated (in the victim impact statement) is reiterating what was discussed during the trial. It doesn’t come near to … fresh evidence,” Ball told the court. “It’s not hinged on if it could happen again, it’s the fear that it could happen.
“The Crown submits that this is a reasonable feeling of any victim of sexual violence.”
Ball also highlighted that the victim reported the assault to police the day after it occurred, but was told charges wouldn’t be pursued.
Justice Gerald Moir inevitably ended up siding with Ball, and the motion was dismissed.
“The evidence of special bias … and my inclusion of it on the reasoning of credibility were all a part of the trial,” Moir told the court. “The victim impact statement adds nothing, except to make it clear that the bias
was generalized.”
“Therefore, this is no fresh evidence in this case.”
Al-Rawi’s sentencing hearing will move forward in Nova Scotia Supreme Court Thursday morning, when it is expected the victim will present her victim impact statement to the court.
It’s still not clear how long of a sentence the Crown or defence will recommend.