“A reluctant acquittal.”
That’s how defence lawyer Luke Craggs characterized a decision by Nova Scotia judge Greg Lenehan last March, when Lenehan found taxi driver Bassam Al-Rawi not guilty of sexually assaulting an intoxicated 26-year-old female passenger.
Craggs noted that in his written decision, Lenehan admitted he “struggled to understand what this evidence proves.” His decision to acquit the driver sparked yowls of protest from women’s groups in Halifax and across the country.
Yesterday, the Public Prosecution Service tried to convince three judges on the Court of Appeal that Lenehan made several errors in law which provide the Appeal Court with ammo to overturn the decision by the lower court. But first, a refresher on the disturbing facts of this case.
A police officer testified that shortly after 1am, a woman was found unconscious in the back seat of a cab, nude from the waist down. The officer testified her shoes were in the front seat and the driver’s pants were down with his fly unzipped. Driver Al-Rawi was observed trying to stow under the console the woman’s urine-soaked pants with the wet panties still inside them.
Judge Lenehan determined the passenger must have lost control of her bladder and urinated on herself before the driver stripped off the pants. The judge also ruled the driver “had touched the woman in a way that violated her sexual integrity.”
The woman’s blood alcohol level tested at .22 -.23. Judge Lenehan found she was indeed drunk. What the judge found more difficult to determine was whether, prior to passing out, she had given consent to the sexual touching, uttering the now infamous phrase: “Clearly a drunk can still consent.”
Crown prosecutor Jennifer MacLellan does not take issue with that oft-quoted statement from a judge who purportedly abstains from alcohol. Instead, the prosecutor told the Appeal Court yesterday (Justices Jamie Saunders, Duncan Beveridge, and Cindy Bourgeois)) that it was Judge Lenehan’s job “to determine how drunk was too drunk to consent.”
MacLellan told the Court of Appeal that Lenehan’s first mistake was declaring he had “no evidence” to prove the woman hadn’t consented to sexual activity.
On the contrary, said MacLellan, the Crown had introduced “significant circumstantial evidence” — including the blood alcohol readings, the garbled text messages to friends, and urine-soaked clothes — to demonstrate loss of control over bodily functions.
MacLellan argued the judge “didn’t grasp” that the evidence introduced to show the passenger’s level of intoxication was the same evidence that proved she didn’t consent and lacked the capacity to do so. The Crown argued Lenehan’s failure to recognize the nature of this evidence led to a legal error in finding “reasonable doubt” that the woman had consented to sexual touching.
Justice Cindy Bourgeois asked the prosecutor whether the fact the woman had $20 ready to pay for the ride home and could provide her home address when woken by police might be considered a sign she had the ability to consent. MacLellan responded with a question of her own, asking how “a rote memory” of a person’s name and address could possibly be used as a sign of consent to have sex with a complete stranger in a cab?
Justice Saunders questioned MacLellan about why she hadn’t asked the forensic expert for her opinion on what impact such high blood alcohol readings could have on the woman’s capacity to provide consent. That omission may have been part of what led Lenehan to state he had “no evidence” to prove there had not been consent. MacLellan said she didn’t want a witness to usurp the judge’s right to make that decision.
Al-Rawi’s defence lawyer Luke Craggs said consent is the only issue in the appeal hearing that could overturn the original decision by Lenehan.
Craggs pointed out some unexplained points in the evidence he claims could be interpreted to show the woman did consent to some form of touching. A complete head-to-toe medical exam of the woman shortly after the 11 minutes she spent in the cab found no trace of Al-Rawi’s DNA on her body.
In contrast, the Crown found some of the woman’s DNA near Al-Rawi’s lips. Justice Beveridge noted the forensic report had not identified the source of the DNA, which could include a long list of bodily fluids. Craggs said the DNA evidence suggests the woman may have “kissed or licked” the cab driver in the course of getting the pants off.
In his written decision, Lenehan suggested the DNA found on Al-Rawi’s face could have arrived (inadvertently) from handling the woman’s urine-soaked pants. The Crown told the Appeal Court the judge had no business “speculating” on how the DNA got there and the Lenehan’s statement should be regarded as another legal error. Under questioning from the Appeal Court panel, Al-Rawi’s defence lawyer conceded Lenehan couldn’t be right on that point because if so, the woman’s DNA would also have been found on the cab driver’s hands, which it wasn’t.
The Crown also drew attention to a statement in Lenehan’s decision he attributed to the blood alcohol expert but which the Crown says reflected Lenehan’s own point-of-view. MacLellan told the hearing that the expert stated alcohol consumption can lead to risk-taking behaviour. What the judge said was alcohol can lower inhibitions which may lead people to initiate sexual activity they regret later when they are sober.
“Intoxicated women are more likely to be targeted for sexual attack,” Kelly McMillan told the court on behalf of the Avalon Sexual Assault Centre Society, which was granted intervenor status. “This hearing represents an opportunity for the Court to provide more clarity on the capacity to consent. Instead of a grey line, there should be a context that includes an understanding of the sexual activity, a right to say yes or no, and an ability to assess risk and consequences.”
The Appeal Court panel has six months to make a decision. It can uphold the acquittal or order a new trial. Bassam Al-Rawi did not appear in court and is no longer a licensed cab driver in Halifax.