'So important:' Passenger speaks after Halifax taxi sexual assault acquittal overturned
Judge Gregory Lenehan's not guilty verdict against Bassam Al-Rawi drew backlash when he said the words “clearly, a drunk can consent" in delivering his decision.
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The woman at the centre of a case where a Halifax taxi driver’s acquittal of sexual assault has been overturned says she hopes other victims “feel vindicated” at the decision and more feel comfortable coming forward.
In a unanimous decision released Wednesday, the Nova Scotia Court of Appeal said they were satisfied that Judge Gregory Lenehan erred in law when he found that there was no evidence of lack of consent when handing down a not-guilty verdict to Bassam Al-Rawi on March 1, 2017.
“For myself I really don’t care to testify again. I really wish to leave the whole thing behind and move on,” the complainant said in an interview Wednesday.
“But on the other hand, I think that it’s just so important for cases going forward, to set a precedent for anyone who experiences something in the future.”
In his oral decision at the time, Lenehan stated three times he saw no evidence that proved a lack of consent beyond a reasonable doubt.
In the appeal this past November, the Crown said that “simply wasn’t correct,” as there were many pieces of circumstantial evidence around consent and the complainant’s capacity to give it.
Crown attorney Jennifer MacLellan cited the complainant’s blood alcohol level at three times the legal limit; the fact she urinated on herself in the cab; how she was found unconscious and only woke up when an officer shook her awake; and her position 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. His pants were also down and his seat reclined.
The appeal court’s decision reads that Lenehan “ignored or disregarded a substantial body of circumstantial evidence that would permit an inference to be drawn that either the complainant did not voluntarily agree to engage in sexual activity with the respondent or lacked the capacity to do so.”
While the trial Crown had argued anyone that intoxicated could not consent to anything, Lenehan disagreed.
"Clearly a drunk can consent," Lenehan said. "One of the effects of alcohol on a human body is it tends to reduce inhibitions, and increases risk-taking behaviour."
In his acquittal, Lenehan said there’s no doubt the complainant was unconscious when she was found by police so at that moment she was unable to consent - but then added what’s unknown is when exactly she passed out and "that’s important."
However, the Court of Appeal decision reads that while Lenehan did not err in law when he said “a drunk can consent” (but it was an “unfortunate personalization of the complainant”), his application of the consent test revealed legal error when he equated “incapacity only with unconsciousness.”
If she could speak directly to Lenehan, the complainant said although she’s “really sorry” the case “blown up in such a way,” his comments “honestly hurt.”
“I hope he realizes that maybe the way that they were worded, how they kind of affected me,” she said.
“He was calling me a drunk, which is kind of inaccurate and offensive.”
The acquittal sparked an immediate public backlash and gained national attention, also resulting in a protest in downtown Halifax.
The complainant said that public support and “outrage” helped her throughout the appeals process, and will be a main point keeping her going when a retrial is ordered.
“If it’s just me going through the process on something that I don’t even remember, then it’s just very isolating,” she said.
For other victims, or those considering reporting an assault, the complainant said they “might feel vindicated in a way” as they see themselves in her shoes.
“For a lot of people, the court process going through a trial centred around sexual assault ... can be very demeaning, because when you’re going through that process you feel like you’re being attacked,”
“If something is done to make this whole process less horrible for the alleged victim, then we can kind of move forward and have more of these cases reported, have people feel more comfortable going to the process - that’s what I’m hoping for.”
Taxi driver back in Halifax: Crown
The former Halifax taxi driver accused of sexually assaulting his female passenger is back in the city awaiting a new trial after time spent out of the country.
Crown attorney Jennifer MacLellan said that former taxi driver Bassam Al-Rawi is again facing a charge of sexual assault related to a May 2015 incident, after his acquittal was overturned by the Nova Scotia Court of Appeal in a decision Wednesday.
“We’re pleased for all kinds of reasons. For the complainant, for the state of the law in Nova Scotia,” said MacLellan, who had argued during the appeal that trial Judge Gregory Lenehan’s acquittal decision had erred in law.
MacLellan said she had spoken with the complainant on Wednesday, making plans to meet again soon with the Halifax Regional Police and trial Crown in the case to work towards a retrial before a different provincial court judge.
Although MacLellan said she’s not sure yet when the case would be back in court, it would be treated like a “new matter” so Al-Rawi would have a first appearance, then arraignment, and a new trial date would be set.
MacLellan confirmed that while Al-Rawi did leave the country “for a period of time,” as he was allowed to do as a free person, she believes he’s now back in the city.
For those people who had looked at the original acquittal with concern and “anxiety” and wondered whether the court system would respond, MacLellan said it’s important for them to see “there are checks and balances.”
“When a mistake is made at a lower court, there are higher courts that can rectify that,” MacLellan said.
She added that the decision takes a “good look” at capacity to consent, and going forward will provide more clarity for Nova Scotia judges and those in other provinces.