A former Halifax taxi driver convicted of sexual assault has had his appeal dismissed by the Nova Scotia Court of Appeal.
Al-Rawi was released on bail after his sentencing and has been living with conditions in Germany while awaiting this appeal.
The appeal was heard in June of this year.
Under the bail order, Al-Rawi was to return to Nova Scotia prior to the appeal decision’s release.
Al-Rawi’s appeal of his conviction alleged the court made an error when considering certain evidence relating to the complainant’s credibility and identification evidence, as well as improperly using hearsay evidence.
The appeal also alleged the court made an error and shifted the burden of proof to Al-Rawi.
In a decision released Tuesday, a panel of three judges decided Al-Rawi failed to demonstrate error in the trial judge’s credibility analysis.
“I am satisfied there was ample support in the evidentiary record for the trial judge to conclude the complainant’s credibility was not impaired because she could remember the sexual assault and not other events highlighted by Mr. Al‑Rawi,” Justice Cindy A. Bourgeois wrote in part.
“Based on the evidence before him, the trial judge was entitled to find the complainant was intoxicated and her memory was fragmented. He was entitled to conclude her memory for more mundane aspects of the evening and early morning had been impacted. Using common sense and human experience, it was open to the trial judge to infer that less mundane events (such as those eliciting fear) may be better remembered. On that basis, he was entitled to reject the defence argument the complainant’s ability to recall the alleged sexual assault impaired her credibility,” the decision read.
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 drinking.
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.
In 2017, Al-Rawi 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.
It was during Al-Rawi’s initial acquittal that the victim in the 2012 assault came forward.
— with files from Graeme Benjamin, Alexa MacLean