Full transcript of judge’s ruling acquitting Halifax cab driver of sexual assault because ‘a drunk can consent’
A taxi driver in Halifax has been found not guilty of sexual assault in a controversial ruling from a Nova Scotia judge.
A Nova Scotia judge is under fire for acquitting Bassam Al-Rawi, a taxi cab driver of sexually assaulting a woman found unconscious and half-naked in his cab.
Judge Gregory E. Lenehan said in his ruling that the woman could not have consented once she was unconscious, but there was reasonable doubt as to whether she provided consent before she passed out.
His assertion ‘a drunk can consent’ has raised questions amid academics and on social media.
Below, is Lenehan’s full ruling, which was delivered orally in a Halifax courtroom on Wednesday and has been transcribed by the National Post based on an audio recording.
The complainant’s identity is protected by a publication ban, so any information that could identify her has been redacted. The name of a expert in forensic alcohol analysis was inaudible, and has therefore been left out. Otherwise, what follows is a word-for-word transcription of the judge’s ruling:
Mr. Al-Rawi is before the court charged with a single count of unlawfully committing a sexual assault on (the complainant) contrary to section 271 of the Criminal Code. We had a trial on this matter with a number of exhibits presented and testimony from a number of individuals. (The complainant) has testified she recalled the evening of May 22, 2015 up til the time that she arrived at Boomers, a drinking establishment. She recalled consuming three drinks at that location, two tequila shots and a vodka and cranberry mixed drink.
Her next recollection is speaking with a female police officer at some early hour of the morning of May 23, 2015, but she does not remember whether she spoke to that officer in an ambulance or in a hospital. She could not recall being prevented from reentering Boomers after midnight on May 23, 2015 because of her level of intoxication. She does not recall her argument with her best friend and that best friend’s boyfriend about going home alone in the taxi. They had tried to get a taxi for her. That exchange was somewhere between the hours of 12:15 a.m. and 12:30 a.m. on May 23, 2015. She could not recall the text exchanges that she had with two of her friends, despite the fact that she did text those individuals and carried on that communication. She doesn’t recall hailing Mr. Al-Rawi’s taxi at about 1:09 a.m. at an (address). She does not recall any of those events, but all of that happened and as I’ve indicated before she actively participated in the various exchanges, the communications that were necessary in those circumstances. She doesn’t recall any of that because she was drunk.
Now at about 1:20 a.m., (the complainant) was found by Const. (Monia) Thibault in the backseat of Mr. Al-Rawi’s taxi. And she was lying down with her head toward the rear passenger side door. Her legs were up onto the seat backs of the front bucket seats. She was naked from her breasts down. Her black wedged sandals were on the floor of the driver’s compartment where Mr. Al-Rawi was located. Her pants and underwear were in the possession of Mr. Al-Rawi as he was observed trying to shove them between the front seat and the console. On the front passenger seat was (the complainant’s) purse and jean jacket. Her wallet and cell phone were on the floor of the front passenger compartment. As was a $20 bill. (The complainant’s) pants were actually found to be turned inside out with the underwear caught up in the pants and the pants were damp as a result of (the complainant) having urinated while wearing her pants.
(The complainant’s) at 1:20 a.m. had a blood alcohol level, which was taken back by the forensic alcohol specialist to be equivalent to somewhere between 223 milligrams per cent and 244 milligrams per cent of alcohol. The forensic alcohol specialist … informed that at that level of intoxication it would appear (the complainant) experienced difficulty moving her perceptions and experiences from short-term memory to long-term memory. And this would explain why (the complainant) was able to carry-on interactions with others but then have no memory for much of what happened from the time she arrived at Boomers and thereafter until the early hours of May 23, 2015.
Other observations made of Al-Rawi at the time that Const. Thibault arrived at his vehicle: his driver’s seat back was partially reclined, his pants were undone at the waist and his zipper was down a couple of inches and it was observed that the back of his pants appeared to be down about six inches. Mr. Al-Rawi was arrest by Const. Thibault. Following his arrest he was examined for possible body substance transfer from (the complainant). A DNA analysis showed that (the complainant’s) DNA was in fact located above Mr. Al-Rawi’s upper lip. However, the source, the bodily substance source, was unknown and could not be identified. In her testimony (the complainant) said on the date of this incident she lived at an address… in Halifax, and her usual practice in getting a taxi was to sit in the back passenger side seat, give her address to the driver and get a $20 bill out and ready to pay for her cab ride. The presence of the $20 bill on he floor of the front passenger tends to indicate that (the complainant) was following her usual practice. That she was in her rear passenger side seat also supports this indication. Her purse, jean jacket, wallet and phone in the front passenger compartment, however, is inconsistent with that.
The purse and jean jacket, however, resting on the seat cushion is also inconsistent with her having been sitting in the seat at anytime prior. What do you make of it? I’m not sure.
The vehicle was examined forensically but there was nothing presented in the Crown’s case showing any of (the complainant’s) bodily fluids on the surfaces of the taxi. If she urinated in her pants while in the taxi one might have expected there would be some transfer of the fluid form the fabric to the car seats, but I have no evidence of that presented to me. Of concern, in the evidence that was presented to this court, is that the taxi — ten minutes after being hailed — was found stopped in the south end of the city, which would not be in anyway in the direction one would drive from (the location the cab was hailed) to get to (the complainant’s home).
(The complainant’s) sandals were on the floor of the driver’s compartment. (The complainant’s) urine-soaked pants and panties were found turned inside out and in the hands of Mr. Al-Rawi. Mr. Al-Rawi’s driver’s seat was partially reclined. The fact that (the complainant’s) legs were resting on the top of the back of the front bucket seats at an angle to her torso lying on the right rear passenger seat with her head toward the door is also of concern.
So I have struggled to determine what all of this evidence proves.
In order for Mr. Al-Rawi to be convicted of the offence that’s before the court, the Crown have to establish beyond a reasonable doubt that Mr. Al-Rawi touched (the complainant), that it was in such a way it violated it her sexual integrity and that it was not done with her consent. In other words, it was done without her consent.
Now, on the element of consent, in order for there to be consent, the person giving the consent, must have an operating mind, they must be of an age responsible enough to agree to sexual conduct, it can’t be withdrawn at anytime, and it can’t be limited to certain acts and not others.
A person would be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself.
This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.
(Intoxication) often leads to people agreeing, and to sometimes initiating, sexual encounters only to regret them later when they are sober
As noted by … the forensic alcohol specialist, one of the effects of alcohol on the human body is an intent to reduce inhibitions and increases risk-taking behaviour. And this often leads to people agreeing, and to sometimes initiating, sexual encounters only to regret them later when they are sober.
In this case, there is no question (the complainant) was drunk when she was found in Mr. AL-Rawi’s taxi, and she was unconscious. Therefore at that moment, when Const. Thibault approached Mr. Al-Rawi’s vehicle, (the complainant) was in fact incapable of consenting ot any sexual activity. That also means that whenever she did pass out, she would have been incapable.
What is unknown, however, is the moment (the complainant) lost consciousness. That is important.
Because it would appear that prior to that she had been able to communicate with others, although she appeared drunk to the staff at Boomers, who would not let her in because of her state of intoxication, she had appeared to make decisions for herself, however unwise those decisions might have been.
(The complainant) in her testimony could not provide any information, any details, whether she agreed to be naked in the taxi or initiated any sexual activity. She could not provide any evidence as to why the taxi was in the south end of the city, nor could any other compellable witness provide that information.
Now as I’ve said, the taxi being in the south end of the neighbourhood, not any any route one would drive to get from Grafton Street (to the complainant’s neighbourhood) is of concern. (The complainant’s) sandals found on the floor of the driver’s compartment under Mr. Al-Rawi’s feet, is also of concern. Mr. Al-Rawi having (the complainant’s) pants and panties in his hands and shoving them between the console and the front seat is of greater concern. (The complainant’s) position in the backseat with her legs propped up on the front bucket seat, is very concerning. All of that together with (the complainant) being found unconscious in the backseat of that vehicle, Mr. Al-Rawi having his pants undone, would lead any reasonable person to believe that Mr. Al-Rawi was engaging in or about to engage in sexual activity with a woman who is incapable of consenting. In other words, Const. Thibault had ample grounds to arrest Mr. Al-Rawi. It would have been foolish of her not to do so in the circumstances.
On that being said, it is the burden on the Crown to prove in this case, that (the complainant) could not or had not consented to any sexual activity. The Crown failed to produce any evidence of lack of consent at anytime when Mr. Al-Rawi was touching (the complainant).
I fully believe that the reason (the complainant’s) sandals were in the driver’s compartment was because Mr. Al-Rawi took possession of them. I also believe that the pants were inside out with the panties caught up in them because Mr. Al-Rawi was the person who took them off (the complainant). As described, it is only logical that those clothes came off by Mr. Al-Rawi grabbing the pants at the waist and pulling the pants and panty top together, thus turning them inside out, as they were pulled over (the complainant’s) legs. Anybody who has changed a child would understand the method used to strip (the complainant) of her clothes.
I also believe that (the complainant’s) DNA was located on Mr. Al-Rawi’s upper lip because of all probability he wiped his hands or fingers over his lip area, either intentionally or absent-mindedly, after handling the urine-soaked pants of (the complainant). That would explain her DNA being on his upper lip.
So this is what I believe is logically probable based on the circumstantial evidence placed before. But I do not know whether Mr. Al-Rawi removed (the complainant’s) pants at her consent, request, with her consent, without her consent. I don’t know. The Crown marshalled no evidence of this. The Crown had no evidence to present on the issue of consent prior to Const. Thibault arriving on scene.
Once Const. Thibualt was on scene, Mr. Al-Rawi was not observed to be touching (the complainant) in anyway. He therefore was not assaulting her when we know she was unconscious.
Mr. Al-Rawi as a taxi driver was entrusted with the safe conduct of (the complainant) to her residence. That is one of of the main reasons we have taxis operating late at night and into the early-morning hours: to get people under the influence of alcohol or other intoxicants safely home. Experienced taxi drivers easily recognize the signs of intoxication on people. They also know from experience that drunks can behave in ways detrimental to their own health and reputation. Taxi drivers are under a moral obligation to not take advantage of intoxicated people either by racking up improper fares or by engaging in sexual activity, as two examples.
If (the complainant) consented to Mr. Al-Rawi’s removal of her clothes, Mr. Al-Rawi was under a moral or ethical obligation to decline the invitation. She was clearly drunk. If she was unable to provide an address, he should have sought police assistance. Once he saw she had peed her pants, he knew she was quite drunk. He knew going along with any flirtation on her part involved him taking advantage of a vulnerable person. That is not somebody I would want my daughter driving with or any other young woman and it is not somebody I would want to hire to drive for my company.
Having said that, with regards to the charge before this court, at the critical time when Mr. Al-Rawi would have stripped (the complainant) of her clothes, the Crown has provided absolutely no evidence on the issue of lack of consent. The evidence (of the forensic alcohol expert) provided the possibility that with a blood alcohol level of 223 to 244 milligrams per cent, (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.
A lack of memory does not equate to a lack of consent.
Where the Crown has failed to prove beyond a reasonable (the complainant’s) lack of consent, I am left with no alternative but to find Mr. Al-Rawi not guilty.
Mr. Al-Rawi, you’re free to go.
Audible in the background, a brief cheer and a smattering of applause. Then someone says, “Thank you, your honour.”