The Nova Scotia Court of Appeal heard the appeal of cab driver Bassam Al-Rawi’s acquittal of sexual assault on Wednesday.
Rawi was accused of sexually assaulting an intoxicated woman, while driving her home in his cab in 2015. The case went to trial and Judge Gregory Lenehan found him not guilty in earlier this year.
In his decision, Lenehan said there was no proof beyond a reasonable doubt the woman did not consent before being unconscious.
“Clearly a drunk can consent,” said Lenehan in his oral decision.
Crown attorney Jennifer MacLellan argued in court Wednesday that Lenehan made “numerous errors” in regards to the “web” of trial evidence that had been presented. Justices Jamie Saunders, Duncan Beverage and Cindy Bourgeois heard the appeal.
MacLellan said the judge was wrong to claim three times that “the Crown has provided no evidence,” when it did. She argued that the Crown put forth a list of circumstantial evidence against the accused, which Lenehan did not properly consider and is proof he made an error in law, causing reasonable doubt.
“He got that wrong,” she told the appeal court.
MacLellan argued the judge did not say he rejected the evidence, rather that he said that no evidence had been presented. She said this shows a lack of understanding of the evidence that was brought forward and a failure to recognize it.
MacLellan also argued that it was the duty of the trial judge to determine “how drunk was too drunk.” She said the judge’s various definitions of drunk were “problematic.”
“There is a point when you become so intoxicated that you cannot consent to sex and it’s not just when you are unconscious,” said MacLellan.
As part of her case, MacLellan repeated details of the original case on Wednesday.
She told the court the woman was turned away from a bar in downtown Halifax because she was too intoxicated. The woman ended up in Al-Rawi’s cab, where a police officer found her unconscious, undressed from the breasts down and had to be shaken awake. Her two feet had been propped up on the front seats.
The police officer testified that Al-Rawi’s pants were unbuttoned, his seat was reclined and he was trying to hide the woman’s pants and underwear between the seats. The woman had urinated on herself and her blood alcohol level was between 223 and 244 milligrams of alcohol in 100 millilitres of blood — well above the legal limit.
MacLellan also noted that the woman had never met the cab driver before, she was not familiar with the neighbourhood she was in or why she was there and had only known Al-Rawi for 11 minutes.
Luke Craggs, the defence lawyer, argued to the three appeal court justices there was no proof of what happened within the 11 minutes before the woman became unconscious. Therefore, he said, the Crown could not prove beyond a reasonable doubt that Al-Rawi had sexually assaulted her.
MacLellan responded by arguing that the woman was incapable of consenting before that 11-minute time frame and said Lenehan did not consider that.
Justice Cindy Bourgeois said the capacity to consent and consent are “two sides of the same coin.”
The court is expected to release its decision within six months. Depending on the outcome, it could uphold Al-Rawi’s acquittal or order a new trial.
MacLellan said she’s waiting for the appeal court’s decision before deciding what to do next. The Nova Scotia Court of Appeal is the highest level of court in the province, however it is possible for cases to move to the Supreme Court of Canada.
“We will cross that bridge when we come to it,” MacLellan told reporters outside the courtroom.