The Globe and Mail by Elizabeth Sheehy 05 March 2017

The acquittal of Halifax taxi driver Bassam Al-Rawi by Nova Scotia provincial court judge Gregory Lenehan raises legal, evidentiary and ethical issues that have rightly provoked outrage and debate.

Did the judge make a legal error when he found that, although the complainant was found nearly naked and unconscious in the back seat of Al-Rawi’s taxi, she may have given her consent some time prior to becoming unconscious?

Our Criminal Code says that “voluntary agreement” cannot be obtained from someone who is “incapable of consenting.” The Code does not define what that means. The judge was correct in stating that an unconscious woman is legally incapable of consent. He is also correct that mere intoxication does not make one “incapable of consent.” While the law does not clearly draw the bright line between these two states, there is no doubt that an extremely drunk person can be conscious yet “incapable of consent.”

The judge emphasizes in his oral decision that the moment the complainant lost consciousness is “unknown” but “important.” If this means that the judge was ruling that until a woman loses consciousness she cannot be said to be “incapable of consent,” then he has made a legal error. It is also troubling that the judge did not refer to any legal precedents in the area. The Crown’s office ought to appeal this case to set the record straight for law enforcement, prosecutors and judges, and for the rest of us.

Did the judge err in his interpretation of the evidence before him regarding the complainant’s capacity to consent?

The complainant entered the taxi at 1:09 a.m., and was found unconscious by a police officer at 1:20 a.m. Her blood-alcohol level was nearly three times the legal limit, taking her into the danger zone of alcohol poisoning. She had lost control of her bladder and urinated in her clothing before Al-Rawi removed her pants. It defies reason to think that 11 minutes before she was found in this condition she could possibly have possessed capacity to consent. The judge’s failure to attend seriously to the implications of these facts may also warrant appeal. If Crowns cannot secure convictions on such extreme facts, then women’s safety is put at serious jeopardy.

The emerging evidence that two other women had reported Al-Rawi alleging predatory sexual conduct when they entered his taxi while intoxicated tells us that the law has an important role to play in denouncing such behaviour. Although admittedly this case is doubly alarming for the breach of trust involved in transporting vulnerable passengers, Al-Rawi is just one among thousands of men whom women report as having assaulted them while they were incapacitated. The targeting of women who are asleep, living with mental disabilities, or passed out through alcohol, drugs or some combination, is a huge category of sexual assault offending.

Our law must respond to this predatory conduct. An appeal in this case appears warranted to ensure that the judge used appropriate legal standards and properly assessed the evidence. We also need to develop a legal, medical and social consensus around the line for capacity to consent. Men have been acquitted in cases where complainants have been staggering, slurring, even vomiting.

And it is time to amend the Criminal Code to require written reasons from judges in all sexual assault decisions. Judge Lenehan’s decision is only available to us because a journalist happened to be in the courtroom and caught the decision. We all know that fewer and fewer journalists will be able to do this important work of court observation in the future as newsrooms contract.

Sexual assault law is one of the most complex areas of criminal law. Judicial errors in such cases have an impact on society well beyond the blow to the individual woman. The criminal justice system is facing a widespread crisis of confidence on the basis of the handling of sexual assault complaints and prosecutions. Requiring judges to issue their decisions in writing, as proposed in Rona Ambrose’s Bill C-337, would help develop consistent legal standards for sexual assault, make errors and appeals easier to identify, and ensure transparency of the legal system for the Canadian public. Let’s put the outrage to good use.

Elizabeth Sheehy is a professor of law at the University of Ottawa.