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'Clearly a drunk can consent,' Halifax judge says in acquitting taxi driver charged with sexual assault

Bassam Al-Rawi stood trial for two days in Halifax provincial court last month on one charge of sexual assault related to a May 23, 2015 incident.

Bassam Al-Rawi arrives in Halifax provincial court on Wednesday.

Jeff Harper/Metro

Bassam Al-Rawi arrives in Halifax provincial court on Wednesday.

A Halifax taxi driver found with an intoxicated, unconscious, mostly naked woman in his cab and her DNA on his mouth has been acquitted of sexual assault by a judge who said there wasn’t enough evidence to prove the woman’s “lack of consent.”

Judge Gregory Lenehan ruled that Bassam Al-Rawi was not guilty of sexual assault in Halifax provincial court on Wednesday after he stood trial last month for a May 23, 2015 incident.

The complainant was found by police in Al-Rawi’s cab around 1:20 a.m., passed out after a night of drinking and being turned away from Boomers, a downtown bar. Her belongings were spread around the car as she lay in the backseat with her feet up on the two front seats, only a shirt partially covering her breasts. Her pants were also damp because she urinated on herself.

Transcript: Judge Lenehan full decision

Al-Rawi’s pants were partially undone and sitting lower on his body, the court heard. As police approached, they saw his seat was reclined and he attempted to hide the woman’s pants and underwear.

“I have struggled to determine what all this evidence proves,” Lenehan said in his decision.

Part of the evidence the Crown presented was a toxicology report showing the 26-year-old complainant would’ve had a concentration of between 223 and 244 milligrams of alcohol in 100 millilitres of blood when police found her.

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Crown attorney Ron Lacey said during the trial there was ample evidence non-consensual touching had occurred, and anyone that intoxicated could not consent to anything.

"Clearly a drunk can consent," Lenehan said. "As noted by … the forensic alcohol specialist, one of the effects of alcohol on a human body is it tends to reduce inhibitions, and increases risk-taking behaviour."

There’s no doubt the complainant was unconscious when she was found by police so at that moment she was unable to consent, Lenehan said -- but what’s unknown is when exactly she passed out and "that’s important."

She also couldn’t provide information on whether she “agreed to be naked in the taxi, or initiated any sexual activity,” Lenehan said.

Lenehan said he found it likely the driver had pulled off the woman’s pants, since they were inside out with her underwear caught up in them, but he doesn’t know whether Al-Rawi removed them “at her request, with her consent, without her consent.”

Lenehan said taxi drivers are under a moral obligation to take their passengers home safely, and even if the woman consented to him removing her clothes, he should have declined because “she was clearly drunk” and going along with any “flirtation” was taking advantage of a vulnerable woman.

"In all probability," Lenehan said the DNA ended up on Al-Rawi’s mouth after he wiped his hand over his lip “intentionally or absent-mindedly” after handling the woman's urine-soaked pants.

Lenehan said Al-Rawi isn't someone he’d want his daughter or any young woman driving with, but in regard to the “critical time” when Al-Rawi could've stripped the woman of her clothes, he said the Crown provided “absolutely no evidence on the issue of lack of consent.”

“(The complainant) might very well have been capable of appearing lucid but drunk, and able to direct, ask, agree, or consent to any number of different activities,” Lenehan said.

“A lack of memory does not equate to a lack of consent.”

Al-Rawi stared intently at the judge during the decision, but did not use his Arabic interpreter. He hugged a couple men in the gallery, and shook hands with his defence lawyer as he left court. Al-Rawi's lawyer declined to comment to Metro after the verdict.

Al-Rawi has been allowed to drive a cab since he had his taxi license reinstated following the charge, and in December 2015 an HRM commitee confirmed it would not revisit the issue despite a citizen asking Al-Rawi's licence be suspended pending a verdict.

Although Bassam Al-Rawi has been acquitted of a criminal sexual assault charge, the municipality could revoke his taxi license after a review.

Municipality to review taxi license status

HRM spokesperson Brendan Elliott could not comment specifically on Al-Rawi’s case but said in general when a taxi driver has finished court proceedings, city staff review whether they should reinstate or revoke the license by looking at trial evidence, judges’ comments, and other factors.

“Someone may be found not guilty at a criminal level, but from our perspective we would still find that activity to have put passengers in a vulnerable situation,” Elliott said.

“If we found that that put a passenger in a situation we felt was too vulnerable for us to risk giving the license back, then that would be enough for us.”

Elliott said they will review the case no matter what, and then Al-Rawi would have to apply formally to have his full license back. If it’s denied, he could appeal the decision through a HRM committee.

Update: The Halifax Taxi Association has said Bassam Al-Rawi will "never drive for a cab company in the HRM again." Read more here.

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