Nova Scotia’s Court of Appeal has ordered a new trial for a taxi driver who was acquitted of sexually assaulting an intoxicated female passenger because he could not determine whether the victim consented before she passed out.
On May 22, 2015, police found taxi driver, Bassam Al-Rawi, in a parked cab in Halifax’s south end. An unconscious female was found in the back seat with her legs propped up on the front seats, naked from the waist down with her breasts exposed. Al-Rawi was discovered leaning between the female’s open legs with his zipper undone and the back of his pants partly down. Al-Rawi was also found to be hiding a pair of the female’s urine-soaked pants and underwear.
Police woke the female complainant, who could only tell them her name, but not why she was there or what had happened.
During the trial, a forensic alcohol specialist testified that the female was extremely intoxicated after drinking 5 beers, two tequila shots and one vodka-cranberry drink. The expert testified that she was drunk enough to forget events and lose track of her surroundings. It was determined that the woman’s blood-alcohol level was three times the legal limit.
Judge Gregory Lenehan set out the requirements for finding Al-Rawi guilty of sexual assault. He stated:
In order for Mr. Al-Rawi to be convicted of the offence that’s before the court, the Crown have to establish beyond a reasonable doubt that Mr. Al-Rawi touched (the complainant), that it was in such a way it violated her sexual integrity and that it was not done with her consent. In other words, it was done without her consent.
At trial, Judge Lenehan found it reasonable to conclude that Al-Rawi was engaging in or about to engage in sexual activity, but he acquitted Al-Rawi on the basis that the Crown had produced “no evidence” of lack of consent or lack of capacity to consent when Al-Rawi was touching the complainant. Judge Lenehan could not determine when the female had lost the capacity to communicate. He wrote that “[c]learly, a drunk can consent.” Judge Lenehan ruled that “[a] lack of memory does not equate to a lack of consent.”
THE DECISION ON APPEAL
The Crown prosecutor appealed the trial decision to a higher court on the basis of several legal errors made by the Judge at trial and requested an order for a new trial.
In the unanimous decision, the appeal court agreed that Judge Lenehan had made several errors in law. The appeal was allowed and a new trial was ordered.
Although the Court of Appeal did not find that Judge Lenehan had erred in law by stating that “a drunk can consent”, his application of the legal test for a person’s capacity to consent to sexual activity was a legal error. The trial judge held that the Crown had not proven incapacity beyond a reasonable doubt because it was unknown the “moment the complainant lost consciousness”. Thus, Judge Lenehan implied that prior to becoming unconscious the complainant would have had the capacity to consent. The Court of Appeal held that the trial judge erred in law by equating incapacity solely with unconsciousness.
The Court of Appeal also found that Judge Lenehan had erred in discounting the extensive circumstantial evidence that would have allowed him to infer that the complainant had not voluntarily agreed to engage in sexual activity, or that she lacked the capacity to do so. Some of the circumstantial evidence noted by the Court of Appeal included:
- the complainant was unconscious when found by police;
- Al-Rawi was trying to hide the urine-soaked pants and underwear from the police;
- the location of the cab was not near the complainant’s home or on the route to the complainant’s home;
- the complainant had no memory of her time in the cab;
- the complainant’s blood alcohol level was between 223 and 244 mg/100mL; and
- the complainant had to be shaken awake by police in the cab and woke up confused and upset.
Justice Duncan Beveridge wrote:
…there was ample circumstantial evidence that would permit a trier of fact to infer that the complainant did not consent or lacked the capacity to do so.
THE CAPACITY TO CONSENT
The trial judge or jury must determine if it has been established beyond a reasonable doubt that the complainant did not consent, or lacked the capacity to consent. In the Court of Appeal decision in this matter, Justice Beveridge set out the test for determining whether a complainant has the requisite capacity to consent.
In order to prove that the complainant did not have the required capacity to consent, the Crown must establish beyond a reasonable doubt that the complainant did not have an operating mind capable of:
- appreciating the nature and quality of the sexual activity; or
- knowing the identity of the person or persons wishing to engage in the sexual activity; or
- understanding he/she could agree or decline to engage in, or to continue, the sexual activity.
In cases where drugs or alcohol are involved and the complainant has little or no memory of the event, difficulties arise in determining whether the complainant had the capacity to consent. Absent direct evidence from the complainant that he/she did not consent, the judge or jury must rely on circumstantial evidence to determine the absence of consent.
WHAT HAPPENS NEXT?
A new trial was ordered by the Court of Appeal. The date for the new trial has not been set. We will provide updates in this blog as new developments regarding this case become available.
In the meantime, if you have been charged with a sexual assault offence or have any questions regarding your legal rights, please contact the experienced criminal lawyers at Affleck & Barrison LLP online or at 905-404-1947. We have a 24-hour phone service for your convenience.