A former Halifax taxi driver has been found not guilty for a second time of sexually assaulting an intoxicated female passenger who was found unconscious and partially naked in the back seat of his vehicle in May 2015.
Bassam Al-Rawi, 43, who was first acquitted in March 2017, stood trial again in Halifax provincial court, with Judge Ann Marie Simmons delivering the verdict Wednesday.
In a three-hour decision, the judge said the evidence established that the complainant, who was 26 at the time of the incident, lacked the capacity to consent to sexual activity .
But Simmons said the Crown failed to prove that Al-Rawi, who had the woman’s DNA on his lips, committed or attempted to commit a sexual assault before a police officer came upon the taxi stopped on Atlantic Street in south-end Halifax with its engine running May 23, 2015, at about 1:18 a.m.
“I am not satisfied that the Crown has proven that it was he who removed (the complainant’s) clothing. … I am not satisfied that the Crown has proven that Mr. Al-Rawi touched (her) body with her lips. Finally, I am not satisfied the Crown has proven beyond a reasonable doubt that Mr. Al-Rawi attempted to commit a sexual assault.”
- Judge Ann Marie Simmons
“Is the circumstantial evidence in this case, viewed logically and in light of human experience, reasonably capable of supporting an inference other than that the accused was guilty?” Simmons said. “The answer is yes.
“I am not satisfied that the Crown has proven that it was he who removed (the complainant’s) clothing. … I am not satisfied that the Crown has proven that Mr. Al-Rawi touched (her) body with her lips. Finally, I am not satisfied the Crown has proven beyond a reasonable doubt that Mr. Al-Rawi attempted to commit a sexual assault.
“I’m taken to the conclusion that Mr. Al-Rawi’s evidence, and the evidence which supports and corroborates aspects of his testimony, leaves me with a reasonable doubt. And accordingly, I find Mr. Al-Rawi not guilty.”
The complainant, whose identity is protected by a publication ban, got into the taxi on Grafton Street in downtown Halifax at about 1:09 a.m. after parting ways with friends more than a half-hour earlier.
She told the court in January that she had no recollection of being in the cab and said she would not have consented to sexual activity with the driver.
Halifax Regional Police Const. Monia Thibault testified that as she approached the taxi, she noticed the woman’s pants and panties were off and her shirt was pulled up, partially exposing her breasts.
“It defies logic that he would choose to stop in such a location, which is the opposite of secluded and private, if it were his intention to commit such an offence.”
- - Judge Ann Marie Simmons
The officer said the woman’s legs were over the front seats, with the driver between them. She said Al-Rawi was fumbling with something between his legs and tried to stuff the woman’s pants and underwear between the centre console and his seat.
When Al-Rawi got out of the car, police noticed the button on the waist of his jeans was undone and the zipper was partway down.
Al-Rawi, who now lives in Germany, told the court the woman put her legs over the console, rather than over the seats, and removed the pants on her own just before the police came along.
He denied touching her for a sexual purpose and said he was relieved when police arrived. He said his tight-fitting pants were undone for comfort only.
“Mr. Al-Rawi’s account of the nine minutes during which (the complainant) was in his taxi was compelling, an extraordinary story without question, but not, as the Crown urges, implausible or incredible,” the judge said.
“I’m asked to accept that an intelligent and experienced taxi driver at the least made a decision to take advantage of a young woman meaningfully impaired by alcohol, (and) that in order to commit a sexual assault, he drove his taxi to a residential neighbourhood with houses on both sides of the street, stopped the car at least a metre from the (curb) such that the car was not hidden and (was) in plain view, parallel to a fire hydrant, and, with the car running, assaulted (her).
“It defies logic that he would choose to stop in such a location, which is the opposite of secluded and private, if it were his intention to commit such an offence.”
Simmons said the Crown wanted her to infer that the six-foot-two Al-Rawi was able to reach into the back seat of the Honda Civic and remove the woman’s tight jeans, which were wet with urine from the body of the complainant.
“If, as the Crown theorizes, (the complainant) was unresponsive as her jeans were removed, the task of removing the clothing would have been extremely difficult,” the judge said.
“(She) had absolutely no physical marks or bruises on her person. There is no damage to any of her clothing.
“I am not persuaded to infer that Mr. Al-Rawi exited the front seat of the taxi, entered the back seat, removed the jeans and then returned to the front seat of the car, still idling in a residential neighbourhood.”
The judge said there was no evidence of how the woman’s DNA was deposited on Al-Rawi’s lips, and an expert testified it might have been from a secondary, or indirect, transfer.
She also noted that the second police officer who arrived at the scene, Const. Jason Marriott, said he saw the woman's legs over the centre console.
The judge admitted Al-Rawi’s version of events was an “extraordinary set of circumstances.”
“But the law demands that I accept all of the evidence and that I draw only those inferences which are grounded in reason and common sense, and that I not fall into error by filling in the gaps and engaging in speculation.”
At Al-Rawi’s first trial on the charge, Judge Gregory Lenehan said the Crown failed to prove the woman had not consented to sexual activity.
“Clearly, a drunk can consent,” Lenehan said in that controversial ruling.
The Nova Scotia Court of Appeal overturned the acquittal in January 2018 and ordered a new trial, saying Lenehan had “ignored or disregarded a substantial body of circumstantial evidence” from which an inference of lack of consent could have been drawn.
Al-Rawi is also scheduled to stand trial in Nova Scotia Supreme Court next February on a charge of sexually assaulting a passenger at a Halifax apartment in December 2012.
MORE TO COME
