Nova Scotia judge under fire for claiming ‘a drunk can consent’ in sex-assault case

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A Nova Scotia judge is facing a firestorm of criticism after declaring "clearly, a drunk can consent" as he acquitted a Halifax taxi driver of sexually assaulting a female passenger who was so intoxicated that she urinated on herself and passed out in the back of his cab.

Justice Gregory Lenehan told the court that while it was obvious the woman was drunk at the time of the incident, and that the accused was "not somebody I would want my daughter driving with," the Crown had failed to provide any evidence that the complainant did not agree to sexual activity.

The woman, who prior to getting in the cab had been denied entry to a downtown bar because of her level of intoxication, could not remember any details of the incident. Her blood alcohol level was found to be three times the legal limit for driving, or as high as 244 milligrams per 100 millilitres of blood.

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"A lack of memory does not equate to a lack of consent … Clearly, a drunk can consent," Justice Lenehan told the Halifax provincial courtroom in declaring 40-year-old Bassam Al-Rawi not guilty.

The case, which deals with the complicated issue of when a person is too intoxicated to consent to sexual activity, has made Justice Lenehan the latest member of the Canadian judiciary to face accusations of mishandling a sexual-assault case.

The Canadian Judicial Council – which last year, through a committee, recommended that Alberta's Justice Robin Camp be removed from the bench after he asked a rape complainant "why couldn't you just keep your knees together?" – has received multiple complaints against Justice Lenehan since his Wednesday verdict.

The council, which deals only with the conduct of federal judges, has referred those individuals to Nova Scotia's Office of the Chief Judge. A spokesperson for the Nova Scotia judiciary said Chief Judge Pamela Williams plans to recuse herself from hearing any complaints on the matter. (The Globe has learned Chief Judge Williams and Justice Lenehan used to be married.) The Chief Judge can be replaced by the Associate Chief Judge, or another provincially appointed judge chosen by the Chief Judge, a spokesperson said.

Margaret Mauger, the executive director of the Colchester Sexual Assault Centre in Truro, N.S., said the facts of the case clearly suggest the woman was well beyond the point of being able to agree to sexual activity.

"I find it deeply disturbing, absolutely outrageous and extremely concerning," she said. "I am just shocked that this judge doesn't seem to understand that dynamic of consent."

Chris Hansen, a spokesperson for the Nova Scotia Public Prosecution Service, said it is reviewing the decision to determine whether there is any basis for an appeal. It has 30 days to make that determination.

Mr. Al-Rawi was arrested in the early morning of May 23, 2015, after a Halifax police constable came upon his parked taxi around 1:20 a.m. The constable found a female passenger was lying unconscious and naked from the waist down, with her breasts exposed, in the back of the cab with her legs propped up on the two front seats. Mr. Al-Rawi, who was sitting in the front with his seat reclined, was trying to shove her urine-soaked pants and underwear into the front console. His own zipper was undone and his pants were partly pulled down. DNA testing later found the woman's DNA on Mr. Al-Rawi's upper lip.

Court heard that the woman had hailed the taxi about 10 minutes before the officer arrived and that the driver had parked in the city's south end, which was in a different direction from the woman's home. Earlier in the evening, she had been out with friends downtown. Some time after midnight, she was denied entry to Boomers Lounge for being too drunk.

Scott Rozee, one of the owners, said neither the police nor the Crown's office has ever tried to formally interview him or his staff about the woman's state, although they learned about it informally from a police officer acquaintance.

Justice Lenehan said that while he found some of the facts of the case "very disturbing" and that, all together, the evidence "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 was incapable of consenting," the Crown did not prove that the woman did not agree to sexual activity prior to the officer's arrival. The judge noted an unconscious person cannot consent to sexual activity, but it was unclear when she passed out.

A particular sticking point for the judge was that before she was in the cab, the woman was able to text with friends, hail a taxi and remove money from her wallet to pay the driver.

Susan Wilson, the sexual-assault nurse examiner program co-ordinator with the Avalon Sexual Assault Centre in Halifax, said given the totality of the evidence that the woman was heavily intoxicated, she is surprised with the judge's decision.

In a recent high-profile Toronto case, Ontario Court Justice Mara Greene found a man guilty of sexually assaulting a woman who was too intoxicated to consent to sexual activity, even though she had been texting and speaking with a friend by phone shortly before she was raped. In that case, the judge found it helped the Crown's case, because what the victim was saying didn't make logical sense.

Janine Benedet, a professor at the University of British Columbia and Canada's leading legal scholar on alcohol and sexual-assault law, said part of what makes incapacity cases so difficult to prosecute is that often victims will be so drunk they may not remember the incident itself – such was the case in this Halifax instance.

"In these types of cases, the accused is the only one with a recollection even to put forward. It's hard to counter that then in a judicial system where the benefit of the doubt is standard," she said.

On the other hand, when a victim is able to fully recount events, judges have been reluctant to find they were too drunk to consent.

"If you can remember what happened, you must not have been drunk enough, and if you can't remember what happened, well maybe you were drunk enough [to be incapacitated] but we don't really know, because you can't remember," she said.