New trial ordered for Halifax taxi driver acquitted of sexual assault

A new trial has been ordered for a Halifax cab driver who was acquitted of sexual assault in a case involving an intoxicated female passenger, but the complainant says she hasn't decided yet whether she will testify again.

The Nova Scotia Court of Appeal released the decision Wednesday in the case of Bassam Al-Rawi, whose trial attracted national attention last March after Judge Gregory Lenehan declared in his oral decision that "clearly a drunk can consent."

The Crown appealed that decision in November.

The complainant said that while she doesn't remember the incident itself, it's been hanging over her head.

She said she was partly disappointed by Wednesday's decision, "Because it means that this whole thing isn't over."

"But overall I think that the message is clear and I'm happy that justice is coming through this time," she said. "I feel at least as though this wasn't all for nothing."

The woman's identity is protected by the court.

'The judge's error was twofold'

"We were pleased with the result of the decision, it was certainly what we advocated for before the court and we feel it's the right decision," said Crown attorney Jennifer MacLellan, who spoke with the complainant on Wednesday.

"It's difficult for her. She's very brave and very patient. And she's found herself in the centre of something that I'm sure no one would ever want to be in. But we had a good discussion today and we'll be meeting again in the weeks to come."

The panel of three judges that heard the appeal said their dispute with Lenehan's decision had less to do with his comments around whether a drunk can consent than with errors he made in law, including ignoring an ample amount of circumstantial evidence.

"The pivotal issue in this case was whether, when and to what extent the complainant's level of intoxication had affected her capacity to consent during the 11 minutes she spent in the taxi," wrote Justice Jamie Saunders.

"The judge's error was twofold: failing to conduct that critical inquiry. and failing to carefully address the considerable body of circumstantial evidence that would have informed his analysis."

That circumstantial evidence includes police testimony about finding the complainant unconscious in the back of Al-Rawi's taxi in May 2015.

She was naked from the waist down, and Al-Rawi had his pants partly unzipped.

The taxi was found nowhere near the woman's home nor the Grafton Street address where she was picked up.

"Why would the complainant tolerate being driven in the opposite direction of her home address unless she was unconscious or lacked the capacity to be cognizant of where she was?" wrote Justice Duncan Beveridge. 

There was also evidence that the woman was severely intoxicated: she had been refused entry into Boomers Lounge due to her level of intoxication and she had lost consciousness and bladder control in the cab. She also remained unconscious even after police arrived and eventually had to be shaken awake.

Beveridge said all of that information "would permit a trier of fact to infer that the complainant did not consent or lacked the capacity to do so."

At the trial, Lenehan had discounted that information in stating there was "absolutely no evidence" of a lack of consent, wrote Beveridge, and said that alone would entitle the Crown to a new trial.

New trial uncertain

MacLellan said the court decision clarified that there are different levels of intoxication, "And it's up to the trial judge when you have a case like this to make the determination of how drunk is too drunk."

"The Nova Scotia Court of Appeal found that there was ample evidence before the trial judge on which he could have come to the conclusion that she either did not consent or was simply unable to consent because of her level of intoxication."

Al-Rawi's lawyer, Luke Craggs, has not responded to CBC's request for comment.

MacLellan said while they are in a position now where there can be another trial, there is work to be done in the coming weeks including meeting with police and the complainant.

"Her wishes would always be something we take into account and consider, but there's lots of things we have to look at," she said.

After testifying at  Al-Rawi's trial, the complainant said she was hoping to leave the whole ordeal behind her.

"It's just being brought back up again and more public than it was before. So I definitely feel like I'm not prepared for that," she said, after hearing a new trial has been ordered.

She added that it's something she's talking about with her attorney.

"If this is going to bring about some incredibly important issues surrounding consent and the court process, then I guess I'm a fairly good candidate to be involved in that," the woman said.

"If this was just about me, I would say, 'No way.'"