The Crown will appeal the acquittal of a Halifax cab driver accused of sexually assaulting an intoxicated woman in his taxi, Nova Scotia's prosecution service announced Tuesday as hundreds gathered to protest the judge's ruling.
Public prosecutions deputy director Denise Smith said Judge Gregory Lenehan made multiple legal mistakes when he found 40-year-old Bassam Al-Rawi not guilty.
The provincial court judge ruled last Wednesday the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity — a decision that has prompted protests and much debate over how the courts handle such sensitive cases.
"We have conducted a legal analysis of the judge's decision and have concluded there is a solid basis to appeal the ruling," Smith said in a statement Tuesday.
She said the judge erred in law by:
- concluding the Crown had offered no evidence of lack of consent from the complainant;
- engaging in speculation about consent rather than drawing inferences from the facts proven in the evidence;
- failing to give proper legal effect to the facts;
- offering an erroneous interpretation and application of the test for capacity to consent;
- failing to direct himself on Criminal Code provisions that deal with aggravated sexual assault;
- failing to determine whether the accused had taken all reasonable steps to ascertain that the complainant was consenting.
The statement said a notice of appeal has been filed with the Nova Scotia Court of Appeal.
A rally was held Tuesday outside Halifax City Hall, where protesters denounced Lenehan's decision and welcomed the appeal.
Roughly 300 people held signs and beat drums under cloudy skies. At one point the crowd repeatedly chanted: "What do we want? Justice! When do we want it? Now!"
Halifax resident Nicole Pettipas said she's not usually one to attend protests, but the case made her feel like a "second-class citizen."
Pettipas said she hopes the public outcry prompts changes to sexual assault laws.
"I'm not angry with the judge. I feel that the judge made a decision based on the laws that he had to use at his disposal," said Pettipas, holding a white sign with black lettering that said: "If the law won't protect us from this, the law must change."
"What needs to change are those laws so that judges can't make decisions like this."
The Halifax Avalon Sexual Assault Centre issued a statement saying the case demonstrates the need to clarify the law on consent in the context of intoxication.
"We need to address the laws, policies, and other systemic barriers that continue to fail victims of sexual assault," said executive director Jackie Stevens. "We also need to make sure that supports and services are easily accessible for victims."
The centre said victims of sexual violence rarely see their perpetrators held accountable by the justice system, citing statistics showing that between 2005 and 2014, only seven per cent of all alleged sexual assaults involving adults in the Halifax region resulted in a conviction.
"We need to change the legal system while also supporting victims through access to counselling and other resources," said Stevens.
Also Tuesday, provincial Justice Minister Diana Whalen announced several sexual-violence initiatives.
She said the province will hire two special prosecutors to handle sexual assault cases and will provide specialized training for Crown attorneys; seek to work with Ottawa to give victims free independent legal advice; audit police services to ensure they have "the appropriate capability to investigate sexual assaults;" and open a new Domestic Violence Court in Halifax.
She said the province will seek to make the justice system's response to sexual assault complaints "a priority agenda item" at the next meeting of Canada's justice ministers.
Al-Rawi was charged after police found the woman, in her 20s, passed out and partially clothed in his car in the early hours of May 23, 2015.
During Al-Rawi's trial in December and January, a police constable testified that she saw Al-Rawi shoving the woman's urine-soaked pants and underwear between the front seats.
At the time of his arrest, Al-Rawi's seat was partially reclined and the woman's legs were resting on the back of the front bucket seats.
Al-Rawi's pants were undone at the waist and his zipper was down a couple of inches, the officer said. Evidence of the woman's DNA was found on Al-Rawi's upper lip, but the origin of the bodily fluid couldn't be identified.
Lenehan said the evidence was concerning, and that the officer was correct to arrest Al-Rawi because "any reasonable person" could believe that Al-Rawi was engaging in or about to engage in sexual activity with a woman who was incapable of consenting.
However, he said in his oral decision that the Crown provided no evidence on whether or not the woman consented to sexual activity.
Lenehan said for Al-Rawi to be convicted, the Crown had to show beyond a reasonable doubt that Al-Rawi not only touched the woman in a way that violated her sexually, but that it was done without her consent.
The judge said a person is incapable of consent if they are unconscious or are so intoxicated that they are unable to understand or perceive their situation.
"This does not mean, however, that an intoxicated person cannot give consent to sexual activity," he said. "Clearly, a drunk can consent."
That comment has prompted condemnation of the judge by some citizens, criticism from sexual assault centres across the province, and anger from the woman at the centre of the trial.
On Monday, the Nova Scotia Criminal Lawyers Association issued a statement saying criticism of Lenehan's "partiality, competence, and his qualifications ... is unfounded and undermines the discussion that is needed to address the prevention of sexual assault."
"Most importantly, he is fair. He is the type of person that any reasonable, informed member of the public should want as a judge."