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Taxi driver Bassam Al-Rawi appears in Halifax Provincial Court on Thursday, Feb.9, 2017.

Jeff Harper

Nova Scotia's top court has overturned the ruling of a Halifax judge who acquitted a taxi driver of sexually assaulting an intoxicated female passenger last year in part because he could not determine whether the victim consented before she passed out.

The case, one of a number of Canadian sex-assault cases that have drawn criticism recently, centred on taxi driver Bassam Al-Rawi on the night that police found him in his parked cab, rear window foggy, in Halifax's south end.

Inside the back seat, a female victim was naked from the waist down and with her breasts exposed. Although she was unconscious, the victim's legs were propped up on the front seats. Mr. Al-Rawi was in his partly reclined seat, but turned backward and leaning between the victim's open legs. His zipper was undone and the back of his pants was partly down. He also seemed to be hiding the woman's urine-soaked pants and underwear, which he had removed and were inside out.

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The police roused the victim, who told them her name but not why she was there or what had happened.

Mr. Al-Rawi was charged with sexual assault. A DNA swab from the taxi driver's mouth later revealed both his and DNA from the victim.

The pivotal legal issue in the case surrounds the concept of consent and to what extent intoxication can affect a person's capacity to agree to participate in or continue sexual activity. Courts in Canada have struggled for years with the issue; the certainty the courts agree on is that an unconscious person cannot consent.

"The exact test or dividing line to determine capacity and incapacity has not yet been authoritatively settled by the Supreme Court of Canada," the appeal court wrote.

In his oral decision last March, Judge Gregory Lenehan found the accused guilty of touching the victim in a sexual manner by removing her pants, but he acquitted the taxi driver on the basis that the Crown had produced "no evidence" of lack of consent.

In his decision, which is now the subject of an independent review, the judge said he could not determine when she had lost capacity to communicate and, therefore, consent. He touched off a firestorm when he declared that, "Clearly, a drunk can consent."

Protesters angry over the acquittal demonstrated in downtown Halifax last March and argued that the decision sent a permissive message to sexual-assault perpetrators.

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Although controversial, the judge's comment was legally accurate and not, the Nova Scotia Appeal Court ruled Wednesday, the reason for its reversal of his decision.

In its unanimous ruling, the appeal court said Judge Lenehan made several legal errors in his decision, including when he applied the legal test for a person's capacity to consent to sexual activity and equated incapacity solely with unconsciousness. He also stumbled when he discounted "a substantial body of circumstantial evidence" related to lack of consent or capacity to consent supplied by the Crown. That included expert opinion on the impairing effects of alcohol and the mental deficiencies that can result from severe intoxication.

The victim had consumed five beers, two tequila shots and one mixed drink, all within four hours and on an empty stomach, before getting into Mr. Al-Rawi's cab. Her blood-alcohol level was three times the legal limit for driving, the trial was told.

"There was ample circumstantial evidence that would permit the inference to be drawn that either the complainant did not voluntarily agree or lacked the capacity to do so," wrote Justice Duncan Beveridge on behalf of a three-judge panel.

Elaine Craig, an associate professor of law at Dalhousie University who closely followed the trial and has written extensively on it called Wednesday's decision "a relief" and said the courts need more guidance and clarity on the issue of consent as it relates to intoxication.

"This is a hard issue. We have different courts in different provinces using different criteria to assess whether or not a woman has consumed too much alcohol or is too intoxicated to consent," she said. "It would be nice to get some clarity from the Supreme Court of Canada on this."

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Elizabeth Sheehy, who teaches sex-assault law at the University of Ottawa, said she would like clarity on consent in the form of tougher laws.

"A stronger law on incapacity is needed to respect women's autonomy and equality but also to educate the public and deter perpetrators and hold them accountable," she said.

A date has not been set yet for a new trial.

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