A former Halifax taxi driver convicted of sexual assault will be allowed to return to Germany after a Court of Appeal judge granted his application for bail pending the result of his appeal on Thursday.
In December, Bassam Al-Rawi was sentenced to two years in prison for the Dec. 15, 2012, sexual assault of a woman he picked up in downtown Halifax.
He’s appealed the decision and applied to be released on bail. Submissions on bail were heard Thursday with Justice Anne Derrick of the Nova Scotia Court of Appeal providing an oral decision shortly afterwards.
Derrick stressed that her decision to grant Al-Rawi’s release as well as the Crown’s decision not to object to his release had a “firm basis” in law.
She also agreed with multiple arguments put forward by Al-Rawi’s defence team that stressed his financial, marital and political reasons to return from Germany — where he is a temporary resident — when the appeal is heard on June 11.
“Based on the evidence I have before me is that everything rides for Mr. Al-Rawi on him engaging with and, as I’ve put it, prosecuting his appeal,” Derrick said.
According to defence lawyer Ian Hutchison, Al-Rawi has multiple reasons that necessitate his return to Canada.
An affidavit sworn by Al-Rawi, his business in Germany — My Ride — indicates it is likely to fail without him returning to the country and cause him to declare bankruptcy.
His wife, Rebecca Mueller, is also pregnant. Because she is a German citizen she cannot receive health benefits in Canada and must return to Germany to give birth.
Despite Al-Rawi’s attempt to sponsor his wife’s application for permanent residency in Canada so she can remain in the country, he is unable to do so as a result of his sexual assault conviction.
Furthermore, Al-Rawi and his legal team argue he must return to Germany in order to renew his temporary residency in the country, which is set to expire on April 20, 2021.
He cannot renew it from Canada.
All of this, the defence team argued, is why he must be permitted to travel to Germany. It was an argument echoed by Derrick in her decision.
“A simple fact is that if (Al-Rawi) does not surrender to his appeal then his appeal would be dismissed and his conviction would stand,” she said.
The end result of that would be that the application for his wife’s permanent residency in Canada would not go forward, he would not be able to apply for permanent residency in Germany because of his conviction in Canada, and he would face the prospect of deportation from Germany to his home country of Iraq.
According to his lawyer, Al-Rawi has every reason to want to return to Canada to see out the appeal process.
The assault
The complainant, whose identity is protected under a publication ban, testified that on the night of the assault, she became disoriented after a night of heavy drinking with her friends.
She said she did not have any memory of leaving the last bar she attended and began losing memory while walking outside.
The complainant testified that she recalled an interaction with a cab driver, but was not sure how the conversation started. She recalled the taxi driver saying he was “not going to leave her out in the cold” and she accepted the ride.
The complainant testified that she ended up inside Al-Rawi’s apartment.
She testified that he later assaulted her in his bedroom while she was drunk and pretending to be unconscious.
Al-Rawi’s appeal of his conviction alleges the court made an error when considering certain evidence relating to the complainant’s credibility and when considering identification evidence, as well as improperly using hearsay evidence.
The documents also allege the court made an error and shifted the burden of proof to Al-Rawi.
This is not the first time that Al-Rawi has faced sexual assault charges.
In 2017, he was acquitted 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, Judge Gregory Lenehan, erred by finding there was no evidence showing a lack of consent.
Lenehan’s decision sparked national outrage when he stated that “clearly, a drunk can consent.”
Al-Rawi was once again found not guilty during the retrial in September 2019. He has maintained his innocence through all three trials.
$75,000 forfeit if Al-Rawi fails to return
As part of his release, Al-Rawi and his wife will put forward $25,000 while a family friend who lives in Ottawa will act as a surety by providing a $50,000 guarantee.
All of the funds would be forfeit if Al-Rawi does not return to Canada.
For its part, Crown attorney James Gumpert offered no reasonable basis to oppose Al-Rawi’s release, although the Crown asked that he continue to be bound by a requirement not to have any contact with the victim of his assault.
Gumpert agreed that Al-Rawi has returned from Germany to Canada six times to face court. He has also not breached his conditions.
“I do not oppose his release to Germany,” he said, stressing that his opinion on Al-Rawi’s bail did not reflect in any way the nature of his crimes.
It was a sentiment echoed by Derrick in her decision when she said that it had a “firm basis” in law.
As part of his released conditions, Al-Rawi must check in with Halifax Regional Police once a week.
A full written version of Derrick’s decision will be released on Friday.
— with files from Global News’ Graeme Benjamin and Alexa MacLean