HALIFAX — Nova Scotia’s highest court has ordered a new trial for a taxi driver acquitted of sexually assaulting a highly intoxicated passenger, saying the trial judge erred in law by finding there was no evidence of lack of consent.
In a unanimous decision, the Nova Scotia Court of Appeal found the judge ignored or disregarded circumstantial evidence that would have allowed him to infer the complainant did not voluntarily agree to engage in sexual activity, or that she lacked the capacity to do so.
Under the law, the Crown was obligated to prove the complainant was not capable of understanding the nature of the sexual act.
The woman, who was found unconscious in the cab, told police she couldn’t remember what happened.
During Bassam Al-Rawi’s trial, an expert testified that the young woman was extremely intoxicated after drinking five draught beers, two tequila shots and one vodka-cranberry drink while at a downtown bar.
In an oral ruling delivered last March, provincial court Judge Gregory Lenehan said there was no evidence of a lack of consent or a lack of capacity to consent to the sexual act that took place in Al-Rawi’s cab on May 22, 2015.
Lenehan’s decision — now the subject of a judicial council investigation — sparked public outrage when he concluded: “Clearly, a drunk can consent.”
The appeal court found Lenehan’s statement was correct in law, but the three justices concluded the judge’s application of the consent test revealed a legal error when he equated incapacity only with unconsciousness.