HALIFAX â€” A Halifax taxi driver has been acquitted of sexually assaulting a young woman who was found drunk and unconscious in his cab, prompting a renewed debate over how Canadian courts react when the issue of consent is mixed with heavy drinking.
Judge Gregory Lenehan ruled the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity with driver Bassam Al-Rawi.
The 40-year-old man was charged after police found the woman, in her 20s, passed out and naked from the breasts down in his car in the early hours of May 23, 2015.
The woman testified she had no memory of what happened in the cab, and the provincial court judge concluded his decision Wednesday by saying, “a lack of memory does not equate to a lack of consent.”
Lenehan also bluntly stated: “Clearly, a drunk can consent.”
The ruling came days after a jury in St. John’s, N.L., acquitted police Const. Doug Snelgrove of sexually assaulting an inebriated woman he was driving home from a bar while on duty, in a case that sparked a protest outside police headquarters.
Now, Lenehan’s comments and the graphic details of the Halifax case have reignited a spirited discussion about how the courts treat allegations of sexual assault when the complainants can’t recall what happened.
Kim Stanton, legal director at the Toronto-based Women’s Legal Education and Action Fund, said consent is a key factor in such cases, but so is the victim’s level of incapacity.
“The Supreme Court of Canada has been very clear that a woman cannot consent to sex if she’s incapacitated, whether due to alcohol or otherwise, and that has been an important holding in our law,” she said in an interview Thursday.
“The law in Canada is that only yes means yes. That’s our standard of consent … It must be affirmative and ongoing consent.”
Stanton said that standard is not being applied evenly in courtrooms across the country, which she said is why the cases in Halifax and St. John’s are undermining confidence in the judicial system.
“That’s why so few women report their sexual assaults to police in the first place. Cases like this magnify the problem for the few women whose cases actually do proceed through to a trial.”
Nova Scotia Justice Minister Diana Whalen wouldn’t comment on the Halifax case but said the outcomes of some sexual assault cases “can be discouraging” to complainants.
“That’s why we have to work hard as a society, because government pronouncements alone don’t make the difference,” said Whalen on Thursday.
“We have to change our attitudes in society.”
The Canadian Judicial Council confirmed Thursday it has received calls since Wednesday’s ruling from several members of the public who wanted to make a complaint against Lenehan, but the council does not review the conduct of provincial court judges. A spokesperson for the Nova Scotia judiciary said the chief judge’s office, where complaints against provincial court judges are handled, could not comment on the case.
In the St. John’s case last week, a 21-year-old woman who had been drinking downtown approached a parked police cruiser in the early hours of the morning in December 2014, and asked for a ride home, saying later she thought it was safer than taking a taxi.
At Snelgrove’s trial, she testified the night ended with her passing out â€” then waking up as Snelgrove was having sex with her.
The Crown argued Snelgrove, a 10-year veteran of the Royal Newfoundland Constabulary, took advantage of a vulnerable woman. But the case â€” like the one in Halifax â€” turned on consent.
Snelgrove, 39, admitted he went into the woman’s home and had sex with her but he testified it was consensual. He said she did not appear drunk.
The woman said she could not remember if she had consented.
Wayne MacKay, an expert on human rights law at Dalhousie University in Halifax, said the issue of consent is the most difficult aspect of sexual assault cases.
And he took issue with Lenehan’s statement that: “Clearly, a drunk can consent.”
The law professor argued that one’s capacity to consent can be severely limited by the consumption of alcohol.
“That’s really the large factual question that the judge has to deal with in each case … There certainly seems to be a lot of circumstantial evidence that the person was likely not capable of consenting, but not any absolute proof that that was the case.”
MacKay said the cases in Halifax and St. John’s both involve people in positions of trust, which makes the issue of consent more complex.
“Even if there was factual consent, if you’re a police officer giving someone a drive home or you’re a taxi driver giving a young woman a ride, surely there’s a right to expect … trust will not be broken in terms of sexual contact. That’s the other element that links these two and makes them problematic.”
In the Halifax case, the woman testified that she had consumed three drinks at a downtown bar late on May 22, 2015. She told the court that the next thing she remembered was waking up in either the hospital or an ambulance, where she spoke with a female police officer.
The judge said the woman couldn’t recall being turned away from the bar after midnight, nor did she recall arguing with a friend, texting others or hailing Al-Rawi’s cab at 1:09 a.m.
“She doesn’t recall any of that because she was drunk,” Lenehan said in his oral decision.”What is unknown is the moment (she) lost consciousness. That is important. It would appear that prior to that she had been able to communicate with others. Although she appeared drunk to the staff at (the bar) … she had appeared to make decisions for herself.”
The woman would have been incapable of giving consent if she was unconscious or was so intoxicated that she was “incapable of understanding or perceiving the situation that presented itself,” he said.
Lenehan went on to note that intoxication tends to increase risk-taking behaviour.
“In testimony, (the woman) could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity,” he said. “The Crown failed to produce any evidence of lack of consent at any time.”
Court heard that when a police officer spotted the woman in the back seat of the cab at 1:20 a.m., she was lying unconscious with her legs propped up on the two front seats.
The constable testified that the driver was seen shoving the woman’s pants and underwear between the front seats. As well, his pants were undone around his waist and his zipper was down. The woman’s wallet, purse and shoes were in the front passenger area, and her pants and underwear were tangled inside out and wet with her urine, court heard.
The judge said the evidence indicated that Al-Rawi had removed the woman’s pants.
“I don’t not know if Mr. Al-Rawi removed her pants at her consent, at her request, with her consent, without her consent â€” I don’t know.”
A forensic analyst determined that the woman’s blood-alcohol level was as high as 241 milligrams per 100 millilitres of blood. At that level, the woman would have had difficulty transferring her experiences from her short-term memory to her long-term memory, the analyst said.
“This would explain why (she) was able to carry on interactions … but then have no memory for much of what happened,” Lenehan said.
Officials in Halifax said the municipality is reviewing the status of Al-Rawi’s tax licence, which was suspended in May 2015 but reinstated three months later following an appeal that concluded he could pick up passengers during the day while his actions were being recorded by an in-car camera. His licence was banned from operation in September 2015 after he failed to provide the name of the business he was working for.
By Alison Auld and Michael MacDonald, The Canadian Press
Note to readers: This is a corrected story. An earlier version said the recent St. John’s verdict was delivered by a judge, rather than a jury.