Where Lenehan went wrong: Crown argues judge erred in controversial cabbie decision
Judge Gregory Lenehan's acquittal of cab driver Bassam Al-Rawi was up for appeal in a Nova Scotia courtroom on Wednesday.
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A Halifax cab driver could not have escaped a “tight web” of evidence in his sexual assault trial without significant errors by the judge, a Crown attorney told the Nova Scotia Court of Appeal on Wednesday.
Judge Gregory Lenehan acquitted Bassam Al-Rawi in March 2017 of a charge stemming from an alleged sexual assault against a female passenger in May 2015.
In court on Wednesday, Jennifer MacLellan presented the Crown’s arguments for appealing Lenehan’s decision.
In his oral decision, Lenehan stated three times he saw no evidence that proved a lack of consent beyond a reasonable doubt. MacLellan said that “simply wasn’t correct;” there were many pieces of circumstantial evidence around consent and the complainant’s capacity to give it.
“This is not a rejection by the trial judge of evidence ... this is a failure by the trial judge to recognize the nature of the evidence that was before him,” MacLellan said.
MacLellan cited several pieces of evidence pointing to lack of consent: the complainant’s very high blood alcohol level; the fact she urinated on herself in the cab and in the hospital; how she was unconscious and only woke up when an officer shook her awake; and her positioning in the cab -- her naked legs up on the seat in front of her, as Al-Rawi attempted to hide her bundle of pants and underwear in the front of the cab, while his pants were down and his seat reclined.
Lenehan also referenced how the complainant “appeared” to seem lucid but drunk, as she was texting with people and had argued with a friend before getting in the cab. However, MacLellan said the wording of the texts is riddled with spelling mistakes, indicating she had little awareness of what she was doing, and at one point when a friend asked if she was ok, she texted back “no.”
Although Lenehan and defence lawyer Luke Craggs point to the texts as evidence of the complainant’s apparent ability to consent (she has no memory of the events in the cab or bar beforehand), MacLellan said people are not “automatons” and one’s ability to perform baseline functions like walk or send texts are not proof you have the ability to consent to sex.
MacLellan also took issue with Lenehan’s varying definitions of drunk: he said there’s no question the complainant was drunk because she was found unconscious, but later said, “clearly, a drunk can consent.”
“He didn’t seem to realize ... it was up to him to decide how drunk is too drunk. He doesn’t do that, he just seems to throw up his hands,” MacLellan said.
MacLellan also argued Lenehan hadn’t properly applied the legal test for consent, and whenever he did address consent it was in a “boilerplate” fashion that was too generic.
Interveners Kelly McMillan and Nasha Nijhawan for the Women’s Legal Education and Action Fund and Avalon Sexual Assault Centre raised concerns around Lenehan straying into the “inhibition myth." He said liquor can cause people to have lowered inhibtions and make decisions they’d later regret.
Such a myth suggests that women’s underlying desire is “unlocked” with alcohol, and requires a leap in logic that is problematic to rely on alone without other evidence pointing towards consent, Nijhawan said outside court.
Following presentations from the Crown, defence, and interveners, the justices reserved their decision.