TRANSCRIPT

Read the full decision from the judge who said 'clearly a drunk can consent'

Here is the full transcript of Judge Gregory Lenehan's March 1 oral decision acquitting a Halifax taxi driver of sexually assaulting an intoxicated passenger found partly naked and unconscious in the back of his cab.

Judge Gregory Lenehan acquitted cab driver Bassam Al-Rawi of sexual assault

Judge Greg Lenehan is seen here in 2009 when he was Crown attorney. (CBC)

The following is the full transcript of Judge Gregory Lenehan's March 1 oral decision acquitting a Halifax taxi driver of sexually assaulting an intoxicated passenger found partly naked and unconscious in the back of his cab.

The complainant's name is protected by a publication ban and any details that could identify her have been redacted.

This was transcribed by CBC News based on an audio recording:

'She doesn't recall any of that because she was drunk'

Mr. Al-Rawi is before the court charged with a single count of unlawfully committing a sexual assault on (complainant) contrary to section 271 of the Criminal Code. We had a trial on this matter with a number of exhibits presented and testimony from a number of individuals.

(Complainant) testified she recalled the evening of May 22, 2015, up until the time that she arrived at Boomers, a drinking establishment.

She recalled consuming three drinks at that location — two tequila shots and a vodka-and-cranberry mixed drink. Her next recollection is speaking with a female police officer at some early hour of the morning of May 23, 2015, but she does not remember whether she spoke to that officer in an ambulance or in the hospital. 

She could not recall being prevented from re-entering Boomers after midnight on May 23, 2015, because of her level of intoxication. She does not recall her argument with her best friend and that best friend's boyfriend about going home alone in a taxi. They had tried to get a taxi for her. That exchange was somewhere between the hours of 12:15 a.m. and 12:30 a.m. on May 23, 2015.

She could not recall the text exchanges that she had with two of her friends, despite the fact that she did text those individuals and carried on that communication.

She does not recall hailing Mr Al-Rawi's taxi at about 1:09 a.m. and an address on Grafton Street. And she does not recall any of those events, but all of that happened and, as I've indicated before, she actively participated in the various exchanges, the communications that were necessary in those circumstances. She doesn't recall any of that because she was drunk.

'No memory of much of what happened'

Now at about 1:20 a.m., (complainant) was found by Const. Thibault in the back seat of Mr. Al-Rawi's taxi and she was lying down with her head towards the rear passenger-side door. Her legs were up onto the seatbacks of the front bucket seats. She was naked from her breasts down. Her black wedged sandals were on the floor of the driver's compartment where Mr. Al-Rawi was located.

Her pants and underwear were in the possession of Mr. Al-Rawi as he was observed trying to shove them between the front seat and console. On the front passenger seat was (complainant)'s purse and jean jacket, her wallet and cellphone were on the floor of the front passenger compartment, as was a $20 bill.

(Complainant)'s pants were actually found to be turned inside-out with the underwear caught up in the pants. And the pants were damp as a result of (complainant) having urinated while wearing her pants. 

(Complainant) at 1:20 a.m. had a blood-alcohol level, which was taken back by the forensic alcohol specialist, to be equivalent of somewhere between 223 milligrams per cent and 244 milligrams per cent of alcohol. The forensic alcohol specialist (inaudible) informed that at that level of intoxication, it would appear (complainant) experienced difficulty moving, difficulty moving her perceptions and experiences from short-term memory to long-term memory.

And this would explain why (complainant) was able to carry on interactions with others, but then have no memory of much of what happened from the time she arrived at Boomers and thereafter until the early hours of May 23, 2015.

Alleged victim's 'DNA was in fact located above Mr. Al-Rawi's upper lip'

Other observations made of Mr. Al-Rawi at the time that Const. Thibault arrived at his vehicle. His driver's seat back was partially reclined. His pants were undone at the waist and his zipper was down a couple of inches. It was observed that the back of his pants appeared to be down about six to eight inches.

Mr. Al-Rawi was arrested by Const. Thibault.

Following his arrest he was examined for possible body-substance transfer from (complainant). A DNA analysis showed (complainant)'s DNA was in fact located above Mr. Al-Rawi's upper lip.

However the source, the bodily substance source, was unknown and could not be identified.

In her testimony, (complainant) said that on the date of this incident, she lived at an address on (street name) in Halifax and her usual practice when getting a taxi was to sit in the back passenger side seat, give her address to the driver, and get a $20 bill out and ready to pay for her cab ride. 

The presence of the $20 bill on the floor of the front passenger compartment tends to indicate that (complainant) was following her usual practice. That she was in the rear passenger-side seat also supports this indication.

Her purse, jean jacket and wallet and phone in the front passenger compartment, however, is inconsistent with that. The purse and jean jacket resting on the seat cushion is also inconsistent with her having been sitting in the seat at any time prior.

What do you make of it? I'm not sure.

Bassam Al-Rawi, 40, was not guilty Wednesday following a two-day trial in February in Halifax provincial court. (Jeff Harper/Metro Halifax)

'I have struggled to determine what all of this evidence proves'

The vehicle was examined forensically, but there was nothing presented in the Crown's case showing any of (complainant)'s bodily fluids on the fabric surfaces of the taxi. If she urinated in her pants while in the taxi, one might have expected that there would be some transfer of the fluid to the fabric of the car seats, but I had no evidence of that presented to me.

Of concern in the evidence that was presented to this court is that the taxi, 10 minutes after being hailed, was found stopped in the south end of the city, which would not be in any way in the direction one would drive for Grafton Street to get to (street name), which is just out past the Armdale Rotary.

(Complainant)'s sandals were on the floor of the driver's compartment. (Complainant)'s urine-soaked pants and panties were found turned inside-out and in the hands of Mr. Al-Rawi. Mr Al-Rawi's driver seat was partially reclined.

The fact that (complainant)'s legs were resting on the top of the front — the top of the back of the front bucket seats at an angle to her torso lying on the right rear passenger seat with her head toward the door, is also of concern.

So I have struggled to determine what all of this evidence proves. 

'Clearly a drunk can consent'

In order for Mr. Al-Rawi to be convicted of the offence that's before the court, the Crown would have to establish beyond a reasonable doubt, that Mr. Al-Rawi touched (complainant), that it was in such a way that it violated her sexual integrity, and that it was not done with her consent. In other words, that it was done without her consent. 

Now on the element of consent, in order for there to be consent, the person giving the consent must have an operating mind, they must be of an age responsible enough to agree to sexual conduct. It can be withdrawn at any time and it can be limited to certain acts and not others.

A person will be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself.

This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly a drunk can consent.

As noted by (inaudible), the forensic alcohol specialist, one of the effects of alcohol on the human body is it tends to reduce inhibitions and increases risk-taking behaviour. And this often leads to people agreeing, and to sometimes initiating, sexual encounters, only to regret them later when they are sober.

'What is unknown'

In this case, there is no question (complainant) was drunk when she was found in Mr. Al-Rawi's taxi and she was unconscious. Therefore at that moment, when Const. Thibault approached Mr. Al-Rawi's vehicle, (complainant) was in fact incapable of consenting to any sexual activity.

And that also means that whenever she did pass out, she would have been incapable. 

What is unknown, however, is the moment (complainant) lost consciousness. That is important because it would appear that prior to that, she had been able to communicate with others. Although she appeared drunk to the staff at Boomers, who would not let her in because of her state of intoxication, she had appeared to make decisions for herself, however unwise those decisions might have been.

(Complainant) in her testimony could not provide any information, any details, on whether she agreed to be naked in the taxi or initiated any sexual activity. She could not provide any evidence as to why the taxi was in the south end of the city, nor could any other compellable witness provide that information.

'Crown failed to produce any evidence of lack of consent'

Now as I've said, the taxi being in the south-end neighbourhood, not on any route one would drive to get from Grafton Street to the Armdale Rotary, is of concern. (Complainant)'s sandals found on the floor of the driver's compartment under Mr. Al-Rawi's feet, is also of concern.

Mr. Al-Rawi having (complainant)'s pants and panties in his hand and shoving them between the console and the front seat is of greater concern. (Complainant)'s position in the back seat with her legs propped up on the backs of the front bucket seats is very disturbing. 

All of that, together with (complainant) being found unconscious in the back seat of that vehicle, Mr. Al-Rawi having his pants undone, 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.  

In other words, Const. Thibault had ample grounds to arrest Mr. Al-Rawi. It would have been foolish of her not to do so in the circumstances. That being said, it is the burden on the Crown to prove in this case that (complainant) could not or had not consented to any sexual activity.

The Crown failed to produce any evidence of lack of consent at any time when Mr. Al-Rawi was touching (complainant). 

'Only logical that those clothes came off by Mr. Al-Rawi'

I fully believe that the reason (complainant)'s sandals were in the driver's compartment is because Mr. Al-Rawi took possession of them. I also believe the pants were inside out with the panties caught up in them because Mr. Al-Rawi was the person who took them off (complainant).

As described, it is only logical that those clothes came off by Mr. Al-Rawi grabbing the pants at the waist and pulling the pants and panties off together, thus turning them inside out as they were pulled over (complainant)'s legs. Anybody who has changed a child would understand the method used to strip (complainant) of her clothes. 

I also believe that (complainant)'s DNA was located on Mr. Al-Rawi's upper lip because, in all probability, he wiped his hand or fingers over, either intentionally or absent-mindedly, after handling the urine-soaked pants of (complainant). That would explain her DNA being on his upper lip.

So this is what I believe, and is logically probable based on the circumstantial evidence placed before me. 

But I do not know whether Mr. Al-Rawi removed (complainant)'s pants at her consent, at her request, with her consent, without her consent, I don't know. 

The Crown marshalled no evidence on this. The Crown had no evidence to present on the issue of consent prior to Const. Thibault arriving on scene.

Taxi drivers 'under a moral obligation not take advantage of intoxicated people'

Once Const. Thibault was on scene, Mr. Al-Rawi was not observed to be touching (complainant) in any way. He therefore was not assaulting her when we know she was unconscious. 

Mr. Al-Rawi as a taxi driver was entrusted with the safe conduct of (complainant) to her place of residence. That is one of the main reasons we have taxis operating late at night and into the morning hours, to get people under the influence of alcohol or other intoxicants safely home.

Experienced taxi drivers easily recognize the signs of intoxication on people. They also know from experience that drunks can behave in ways detrimental to their own health and reputation. Taxi drivers are therefore under a moral obligation not take advantage of intoxicated people, either by racking up improper fares or engaging in sexual activity, as two examples. 

'Not somebody I would want my daughter driving with'

If (complainant) consented to Mr. Al-Rawi's removal of her clothes, Mr. Al-Rawi was under a moral or ethical obligation to decline the invitation. She was clearly drunk. If she was unable to provide an address, he should have sought police assistance.

Once he saw she had peed her pants, he knew she was quite drunk. He knew going along with any flirtation on her part involved him taking advantage of a vulnerable person. That is not somebody I would want my daughter driving with, nor any other young woman, and it is not somebody I would want to hire to drive for my company.

Having said that, with regards to the charge before this court at the critical time of when Mr. Al-Rawi would have stripped (complainant) of her clothes, the Crown has provided absolutely no evidence on the issue of lack of consent.  

The evidence of (inaudible) provided the possibility that with a blood-alcohol level of 223 to 244 milligrams per cent, (complainant) might very well have been capable of appearing lucid but drunk and able to direct, ask, agree or consent to any number of different activities. A lack of memory does not equate to a lack of consent.

Where the Crown has failed to prove beyond a reasonable doubt (complainant)'s lack of consent, I am left with no alternative but to find Mr. Al-Rawi not guilty.

Mr. Al-Rawi, you're free to go. Thank you.