Warning: This story contains details of an alleged sexual assault that may be disturbing to some readers. Discretion is advised
A former Halifax taxi driver has been found not guilty of sexual assault in relation to a 2015 incident.
Judge Ann Marie Simmons ruled on Wednesday that Bassam Al-Rawi was not guilty of sexually assaulting a woman who was found unconscious in the back of his taxi on May 23, 2015, naked from the waist down and intoxicated.
A publication ban is in place to protect the identity of the complainant.
The complainant has testified that she had no recollection of any interaction with Al-Rawi and that she would not have consented to have her clothes removed by him or consented to sexual activity.
Al-Rawi testified in his own defence and when questioned about a condom being found in the cab told the court that he had carried a condom since he was 23 years old.
In delivering her ruling Simmons, stressed that the Crown’s case relied heavily on circumstantial evidence and that she considered other plausible theories about what happened that night.
The complainant testified that she and a friend went to an event in Halifax where she drank five beers before heading to another downtown bar.
Her friends told the court that the complainant was extremely intoxicated,
Simmons told Halifax Provincial Court on Tuesday that due to her lack of memory, the complainant was not able to disagree with the defence’s theory that she had hailed a cab and sat the front seat of the vehicle or that she agreed to remove her clothes.
Al-Rawi testified that when he picked up the complainant she didn’t tell him her address when he asked her where she wanted to go. Instead, she signalled with her hands where to go.
He said he assumed she was a student and asked her if she had boy drama, as she appeared to be upset, Al-Rawi testified.
She told him she’d seen someone she loved with another woman and her night was ruined, he said.
Al-Rawi testified that he then complimented the woman to boost her morale, calm her down and help her communicate the destination.
He told the court that when the woman got out of the car to urinate he noticed her seat was wet. He determined the ride would need to end and asked her to pay the fare, which was just over $4.
Instead, she jumped into the backseat and told him to “cruise around.”
Al-Rawi testified that the woman stretched out her legs and moved them as if she was going to take off her pants.
The taxi was soon found by Halifax Regional Police officer Const. Monia Thibault.
Thibault testified that she found Al-Rawi’s taxi parked on Atlantic Street and that when she approached the taxi she found Al-Rawi between the legs of an unconscious woman, partially naked with her shirt lifted up enough that her breasts were revealed.
Thibault told the court that she didn’t immediately register what she was seeing, saying she wasn’t expecting to come across a sexual assault when she approached the taxi.
The police officer testified that she did not witness Al-Rawi physically touching the woman but that he was positioned towards the back of the cab.
On Wednesday, Simmons said Thibault’s ability to see the incident may have been affected by a fogged-up rear window and that on two separate occasions her testimony seemed to blend observation with fact.
Simmons said that as a result, aspects of Thibault’s testimony required careful scrutiny based on what she actually saw and what she thinks she saw.
The judge said she was not convinced that Al-Rawi confined the passenger and took her to a quiet place in the south end and that his version of events was plausible.
Simmons said the complainant’s state of undress is a critical and significant piece of circumstantial evidence.
She said she does not accept the testimony from Thibault that the woman’s legs were resting on the front headrests as the police officer gave contradicting evidence. However, she did accept Thibault’s testimony that the woman was unresponsive.
Simmons also accepted Al-Rawi’s testimony that his pants button was undone for comfort.
Simmons said it goes without saying that while the woman was lying unresponsive she couldn’t consent to sexual activity but did not accept the Crown’s suggestion that Al-Rawi removed the woman’s clothing or that Al-Rawi was guilty of sexual assault.
This trial was the second sexual assault trial for Al-Rawi. He was acquitted of sexual assault in March 2017 but that decision was overturned by the Nova Scotia Court of Appeal.
The Court of Appeal concluded that Judge Gregory Lenehan had erred by finding there was no evidence showing a lack of consent.
In his decision, Lenehan had said that “clearly, a drunk can consent.” It was a remark that sparked a national backlash and prompted discussions over intoxication and the ability to consent to sex while intoxicated.
In 2018 an independent judicial review committee dismissed several complaints against Lenehan, ruling it found no evidence of bias in his ruling.
With files from Alexa MacLean and The Canadian Press
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