Nova Scotia

Crown argues key DNA evidence on former cabbie's mouth proof of sex assault

The Crown attorney in the retrial of a former Halifax taxi driver accused of sexually assaulting a woman in his cab four years ago argues a key piece of DNA evidence found on the mouth of the accused is proof of sexual assault.

WARNING: This story and live blog contains graphic and disturbing content

Former taxi driver Bassam Al-Rawi arrives at provincial court in Halifax in April. (Andrew Vaughan/The Canadian Press)

Evidence given at the retrial of a former Halifax taxi driver indicates Bassam Al-Rawi sexually assaulted an unconscious passenger in his cab four years ago when he removed her clothing and touched her with his mouth, says the Crown attorney arguing the case.

In final submissions Friday in Halifax provincial court, Jennifer MacLellan said the presence of the complainant's DNA on Al-Rawi's lips proves the assault took place. She added the DNA could have been transferred from the complainant's thighs or vagina.

Police arrested Bassam Al-Rawi, 43, on a quiet south-end street in May 2015 after finding a woman naked from the waist down, with her breasts partially exposed, sprawled in the back of his cab.

Al-Rawi pleaded not guilty. The complainant's identity is protected by a publication ban.

Verdict to come Sept. 4

The defence wrapped up its case on Thursday arguing there was reasonable doubt about what happened in the cab police approached around 1:19 a.m.

Defence lawyer Ian Hutchison told the court his client was dealing with a drunk, "boisterous" passenger who took her own pants off.

Judge Ann Marie Simmons will deliver her decision Sept. 4.

The Crown called the accused's version of event "implausible" and said he committed "a crime of opportunity" because of the woman's condition.

"The tale Mr Al-Rawi tells of bad luck and coincidence just doesn't add up," MacLellan told the court.

MacLellan pointed to the testimony of Const. Monia Thibault, who was the first officer to approach Al-Rawi's cab.

The officer told the court she found the complainant's legs propped up with her exposed buttocks suspended over the front seat. Thibault also testified Al-Rawi was positioned between the woman's legs.

A photo of Al-Rawi's taxi cab was included as an exhibit in court. The Crown noted Al-Rawi's seat was tilted back, suggesting it allowed him to reach the complainant in the back of the car. (CBC)

The judge interrupted MacLellan numerous times to ask for clarification about her argument.

"Your theory is that his mouth was capable of coming in contact with her leg?" Simmons asked.

"Yes, it doesn't have to be at the exact moment Monia Thibault sees him," MacLellan replied, saying the scene the officer found was "exactly what it looked like … and that's how his DNA came to be on her."

The female officer had the "vicerial reaction" to what she observed, the prosecutor said, including swearing at Al-Rawi, telling him to get out the cab and immediately arresting him.

When the judge asked if MacLellan was considering the gender of the officer, MacLellan said she should take something from Thibault's reaction.

"To another woman to see this naked woman in this stirrup position, how incredibly vulnerable that is."

A photograph of the front seat of Al-Rawi's cab introduced as a court exhibit. He testified the complainant climbed in to the back seat, leaving her jacket and purse in the front. (CBC)

This is the second time Al-Rawi has been on trial for the same incident.

He was acquitted in May 2017, but last fall the Nova Scotia Court of Appeal ordered a new trial, citing errors the first judge made in law, including ignoring an ample amount of circumstantial evidence in his decision.

The case garnered national attention after the original trial judge made the comment, "clearly, a drunk can consent."

MacLellan, who was involved in the Crown's successful appeal of that decision, brought up the issue of consent again Friday at the retrial.

She said the complainant couldn't consent to sexual activity for two reasons: because she was unconscious and because she was too drunk to do so.

Thibault testified she had to shake the complainant to wake her up after she arrived on the scene.

MacLellan also said the complainant's high intoxication level still would not have lowered her inhibitions enough to do "absolutely anything" including taking off her clothes or consenting to sexual activity in the cab.

"He was a stranger to her, she knew him for all of 10 minutes," she said.

The CBC's Elizabeth McMillan live blogged from court.