A judge has acquitted a former Halifax cab driver accused of sexually assaulting a female passenger, saying he believed the woman but the Crown failed to prove the identity of her assailant.
The Crown alleged Houssen Milad kissed a female passenger on the top of her head while driving her home to the Spryfield neighbourhood of Halifax in June 2016, and groped her buttocks before she got out of the vehicle.
But Judge Gregory Lenehan said Thursday the Crown did not come anywhere near proving its case against Milad beyond a reasonable doubt, and did a "disservice" to the complainant and to the community.
"The investigation in this matter lacked a real critical analysis," Lenehan said. "She deserved to have her complaint given a more thorough investigation."
The judge — who is under investigation for a ruling he gave in a different cabbie sex assault case earlier this year — said the 26-year-old passenger in the Milad case was a credible witness, and he believes she was sexually assaulted.
Routes don't match
The judge's not guilty verdict hinged on what he described as two gaping holes in the case against Milad.
The first revolved around the route the taxi took from downtown Halifax to the woman's neighbourhood west of downtown.
Yellow Cab, the accused's dispatcher, provided the GPS map of Milad's taxi route on the night the woman was assaulted, Lenehan said.
However, that route was different than the directions the complainant testified the taxi took after she flagged it down, he said.
The routes were "markedly different," the judge said, with one heading north of the Halifax Citadel and passing the Scotiabank Centre and Emera Oval, while the other passed the new library on Spring Garden Road.
"It's more than just the street names being different," Lenehan said. "The landmarks are so strikingly differently it would be almost impossible to think [the GPS route supported the passenger's evidence]."
Debit transactions weren't checked
The other flaw in the Crown's case was that the complainant's debit transactions weren't analyzed to see if there were any from Milad's cab, he said.
"Did anybody think to check the debit transaction?" the judge asked, pointing out that the investigation failed to track down whether her payment was credited to Milad's account.
Defence lawyer Thomas Singleton said police in the case had tunnel vision, focusing on his client and ignoring other possibilities, and didn't track down other leads.
The key evidence put forward by the Crown was a business card the complainant obtained at the end of the ride.
But the judge suggested that the perpetrator may have "impersonated" Milad, using one of his business cards.
"That could explain the rather curious act of a driver giving her a business card with his name on it after kissing her without permission and then groping her bum," Lenehan said. "The Crown speculates that Mr. Milad is so devious as to turn off his meter early but readily hand out his business card."
'Free to leave'
While the judge acknowledged that he was speculating, he said the case is built on "circumstantial evidence" and reminded the court that the onus is on the Crown to prove beyond a reasonable doubt that the accused is guilty.
The complainant was not present for the verdict.
The judge said the woman gave clear, cogent answers and offered thoughtful, careful and consistent testimony.
"Her assailant was discoverable," Lenehan said. "He should have been identified properly."
Milad testified in his own defence, denying through an Arabic interpreter that the woman was ever in his vehicle.
He broke down in tears Thursday as the judge told him he was "free to leave" Halifax provincial court.
The decision is the latest in a series of court rulings involving Halifax taxi drivers accused of sexual assault. Police said last year there had been 14 reported sexual assault cases involving cabbies in the city over the previous four years.
Al-Rawi appeal set for Nov.
In March, Lenehan acquitted another taxi driver accused of sexually assaulting a passenger, Bassam Al-Rawi, in a decision that is now the subject of an investigation by a three-member review committee appointed by Nova Scotia's chief justice.
Lenehan's choice of words in the Al-Rawi case set off a storm of social media criticism, a letter-writing campaign calling for a judicial council investigation, and two public protests.
Lenehan said the Crown in the Al-Rawi case had failed to prove beyond a reasonable doubt that the woman, who had been drinking and had no memory of what happened, did not consent to sexual activity with the driver.
He said that "clearly, a drunk can consent."
The Crown is seeking an appeal of Lenehan's decision in the Al-Rawi case. A hearing is scheduled before the Nova Scotia Court of Appeal for Nov. 22.