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'A tricky line:' Halifax legal expert weighs in on tactics defence lawyers use in sex assault cases

Professor Wayne MacKay said while defence lawyers focus on the complainant, society must focus on what the accused did to create a sexual assault situation.

A protester at a demonstration against Judge Gregory Lenehan earlier this month.

Jeff Harper / Metro

A protester at a demonstration against Judge Gregory Lenehan earlier this month.

How far defence lawyers can go in questioning the credibility of a sexual assault complainant, and how much they were drinking, is a “tricky line,” one Halifax expert says.

Wayne MacKay, Dalhousie University law professor, said he felt “disappointment” to see another taxi sexual assault case in court this week involving Saher Hamdan, less than a month after cabbie Bassam Al-Rawi was acquitted by Judge Gregory Lenehan in a controversial decision hinging on consent that drew national attention and is being appealed.

“That is troubling, because one would hope that taxis are safe places to be,” MacKay said Thursday.

In Hamdan’s case, the 19-year-old passenger testified in court Wednesday the driver rubbed her leg a few times without her consent, reached between her legs to pull a latch and slide back her seat, and he asked if he could kiss her the evening of July 15, 2016.

Defence lawyer John O’Neill extensively cross-examined the complainant on where her feet were in the cab at different points, and said it was a “significant” point whether her leg was on the dashboard as she said in July or propped on the inner side compartment of the door which she said Wednesday.

Many readers commented on social media that they felt it was also irrelevant O’Neill questioned the woman at length about what she was drinking at the bar, and how much, before getting in the cab.

Even though the public conversation is shifting away from what a woman was drinking or wearing when an alleged assault occurs, with many pointing out the emphasis should be on the accused’s actions, MacKay said the defence has a duty to represent their clients to the “fullest extent of the law” while remaining ethical and respectful.

Defence lawyers cannot “unduly push” the law as they try to find inconsistencies or problems with the credibility of a complainant, MacKay said, and follow modern restrictions like not asking about someone’s sexual history.

And although a “problematic” line of questioning might be around the complainant’s general pattern of drinking, MacKay said how much she was drinking before an alleged assault is “fair game.”

“That could affect her recollections … as long as it doesn’t cross the line into suggesting she was a drunk or drunk most of the time, which are more of a personality attack,” MacKay said.

“It’s a tricky line.”

Although the defence may focus on a complainant’s credibility and drinking, MacKay said it’s really important that society focuses on what the accused person did to produce a sexual assault situation.

“One doesn’t want to add any suggestion that women are sort of wandering around the streets looking for taxi cabs to have sex in. It seems to me that’s pretty unlikely,” MacKay said.

Judge Michael Sherar will review the full transcript of the complainant’s testimony Wednesday and written briefs on the defence’s three arguments before making a decision this summer, which MacKay said is a good sign.

“I imagine after the Justice Lenehan and the Al-Rawi case, there’s going to be a fair caution in dealing with these matters from the bench,” MacKay said.

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