A really strange ruling by a judge.                                                     .

In 2015, a Halifax police officer approached a parked taxi and saw an intoxicated, unconscious woman in her 20s in the back seat of a parked taxi. She was naked from the chest down and had urinated on herself. The driver, 40-year-old Bassam al-Rawi, was also seen by the officer holding her trousers and underwear in his hand. The driver was actually trying to hide them between the two front seats of his taxi. That act by itself is the sign of a guilty mind. Further, his own trousers had been pulled partly down and his zipper was undone. He admitted in court that he did have sex with his passenger but he said it was consensual.

The issue Lenehan had to decide was whether or not the sex between the two really was consensual. Lenehan found the taxi driver not guilty since the victim couldn’t remember what happened to her when she was in the back seat of the taxi. In other words, he couldn’t find any evidence that it wasn’t consensual since the victim couldn’t remember what happened in the back seat of the taxi since she was unconscious at the time the driver began sexually assaulting her.

The woman, whose identity is protected by a publication ban, told the court she had no recollection of the incident. She remembered consuming three drinks at a downtown bar – two shots of tequila and a mixed drink – but she did not recall being denied re-entry to the same bar later that night or hailing a cab. Tests later had shown that her alcohol level was nearly three times the legal limit for driving. The evidence (of the forensic alcohol expert) provided the possibility that with a blood alcohol level of 223 to 244 milligrams per cent, That would mean that she was really intoxicated to the extent that by the time she was sexually assaulted by the taxi driver, she might have later become unconscious.  

Lenehan said during his judgment after a two-day trial in February, “A person will be incapable of giving consent if she is unconscious or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself.”

That statement is correct. However, if she was asleep and the driver began sexually assaulting her, he would be held to be guilty. 

Lenehan also said, “This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent.”

That too is correct but if the victim was so intoxicated, she couldn’t remember anything whatsoever that occurred in the rear seat of the taxi as to whether or not the driver asked for her consent just before he began taking off her trousers and underwear, that would mean that she wasn’t conscious enough to make any decision, let alone give her consent to the taxi driver to have sex with her.

Let me give you another scenario. A woman has a car accident and it is learned that her impairment is three times the legal limit. Would a doctor then ask her for her permission to remove her badly damaged leg?  I think not.

Lenehan also said,  “The crown (prosecutor) failed to offer evidence suggesting the complainant could not or had not agreed to sexual activity. “A lack of memory does not equate to a lack of consent.”

If the lack of memory is because at the time just before the assault, the complainant was so intoxicated, she was unconscious, then it follows that she wouldn’t remember if she said anything to the driver at the pertinent time. 

I will give you another scenario. The same doctor that cut off the leg of an unconscious woman later said that she gave her consent. But if she says that she can’t remember giving her consent, then that is because she was unconscious at the pertinent time. That being as it is, he would be liable for what he did to the woman just as the driver of the taxi was also liable for what he did to his unconscious passenger.

This raises another point to consider. Can the driver of the taxi legally have sex with an unconscious woman?

Mr. Justice McLachlin of the Supreme Court of Canada in R. v. Esau, in his dissenting decision given in 1997 said;

 “Section 273.2 of the Criminal Code provides that, in a case of sexual assault, an accused cannot raise the defence of mistaken belief in consent if he did not take “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting”.  In this case, where the complainant was on any view of the evidence quite drunk, the absence of any evidence of steps taken by the accused to ascertain consent precludes  him from raising the defence. In any event, an application of the common law principles governing the defence leads to the same result. To put the defence of honest but mistaken belief to the jury, there must be sufficient evidence to give the defence an “air of reality”. Mere assertion of belief in consent by the accused will not suffice to give the defence an air of reality.  As well, diametrically opposed assertions by the parties, the complainant’s clear consent as far as the accused is concerned, and her clear refusal of consent as far as the complainant is concerned ‑‑ will seldom, if ever, give rise to the defence.  Consent for purposes of sexual assault is found in the communication by a person with the requisite capacity by verbal or non‑verbal behaviour to another of permission to perform the sexual act. The issue of mistake as to consent must be assessed on the basis of the particular accused person before the court, but the accused cannot have been wilfully blind or reckless. An accused is not entitled to presume consent in the absence of communicative ability and thus cannot raise the defence in the case of an unconscious or incoherent complainant.  Passivity without more is also insufficient to provide a basis for the defence.  Since the defence of honest but mistaken belief is designed to meet the situation where there has been an honest miscommunication of non‑consent, it may arise only where the evidence indicates a situation of ambiguity resulting from the complainant’s conduct or external circumstances which the accused, not being wilfully blind or reckless and acting honestly, misinterpreted as consent.  The requirements of the defence are thus:  (1) evidence that the accused believed the complainant was consenting; (2) evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and (3) evidence of ambiguity or equivocality showing how the accused could honestly, and without wilful blindness or recklessness, have mistaken the complainant’s lack of consent for consent. Where the Crown has failed to prove beyond a reasonable doubt, the complainant’s lack of consent, I am left with no alternative but to find Mr. Al-Rawi not guilty.” unquote

In my opinion, a woman who was so intoxicated, she can’t remember what happened when she was being approach by a man and her intoxication rate is so high, it would make any reply by her so incoherent;  that would hardly result in a valid defence of consent by the accused.  

Justices Lamer (chief judge) . and Sopinka, Gonthier, Iacobucci and Major made their following rulings;

“Before a court should consider the defence of honest but mistaken belief or instruct a jury on it there must be some plausible evidence in support so as to give an air of reality to the defence. Here, the plausible evidence comes from the testimony of the complainant and the accused and the surrounding circumstances of the alleged sexual assault.  The accused’s evidence amounted to more than a bare assertion of belief in consent.  He described specific words and actions on the part of the complainant that led him to believe that she was consenting.  This alone may be enough to raise the defence, but  there was more.  The complainant’s evidence did not contradict that of the accused, as she cannot remember what occurred after she went to her bedroom.  In addition there was no evidence of violence, struggle or force. The absence of resistance or violence alone could not raise the defence as it is only one factor that must be considered.  Moreover, not only was the testimony of the parties not “diametrically opposed”, but even on a slightly stricter test, the parties’ stories may be “cobbled together” in a coherent manner. The complainant did not testify that she did not in fact consent, but was only able to say that because she was related to the accused, she would not have consented. The accused’s evidence of the complainant’s participatory actions, if believed, might lead a jury to conclude that he honestly believed she was consenting despite his being mistaken about her ability to legally consent because of intoxication.  This meets the threshold of a plausible explanation of the facts and should have been put to the jury.  The question of whether a particular complainant could inadvertently disguise her intoxication, say things or perform acts that raise an honest but mistaken belief in consent is for the jury to determine taking into account all the factors in the case.  A court cannot make an a priori (from what went before) determination that honest but mistaken belief is impossible when the complainant is intoxicated.  Lastly, while passivity by the complainant may not be consent, her absence of memory has to be considered with the evidence of the accused that the complainant seemed to participate willingly.  This is sufficient to justify charging the jury on that defence.” unquote

McLachlin in his dissenting opinion said;

“ Section 273.2 of the Criminal Code provides that, in a case of sexual assault, an accused cannot raise the defence of mistaken belief in consent if he did not take “reasonable steps, in the circumstances known to the accused at the time, to ascertain that the complainant was consenting.  In this case, where the complainant was on any view of the evidence quite drunk, the absence of any evidence of steps taken by the accused to ascertain consent precludes  him from raising  the defence (of previous consent).” Unquote

In any event, an application of the common law principles governing the defence leads to the same result. To put the taxi driver’s defence of honest but mistaken belief to the judge, there must be sufficient evidence to give the defence an “air of reality”. Mere assertion of belief in consent by the driver would not be sufficient to give his defence an air of reality. 

Consent for purposes of sexual assault is found in the communication by a person with the requisite capacity by verbal or non‑verbal behaviour to another of permission to perform the sexual act. As I said earlier, because the victim’s rate of intoxication was so high, it was highly unlikely that she would have been able to deny consent to the taxi driver as her communication with him would be 

The issue of mistake as to consent must be assessed on the basis of the particular accused person before the court.  To be successful in that defence,  accused cannot have been wilfully blind or reckless. An accused is not entitled to presume consent in the absence of communicative ability and thus cannot raise the defence in the case of an unconscious or incoherent complainant.  Passivity without more is also insufficient to provide a basis for the defence.  Since the defence of honest but mistaken belief is designed to meet the situation where there has been an honest miscommunication of non‑consent, it may arise only where the evidence indicates a situation of ambiguity resulting from the complainant’s conduct or external circumstances which the accused had not been willfully blind or reckless and acted honestly and had misinterpreted what the victim had said that in the driver’s mind, was interpreted as consent.  The requirements of the defence are thus:  (1) evidence that the accused believed the complainant was consenting; (2) evidence that the complainant in fact refused consent, did not consent, or was incapable of consenting; and (3) evidence of ambiguity or equivocality showing how the accused could honestly, and without willful blindness or recklessness, have mistaken the complainant’s lack of consent for consent. Either the complainant would have vehemently refused sex with the driver or she was so drunk, she was incoherent in her response or she didn’t understand what was being asked of her or she was unconscious and incapable of refusing  his request for sex.

Mr. Justice L’Heureux‑Dubé in his dissenting opinion said; 

The reasons of Justice McLachlin are agreed with. The traditional common law understanding of “lack of consent” as it relates to the mens rea (criminal intent) in the offence of sexual assault should be changed.  The customary focus on the complainant’s communication of refusal or rejection of the sexual touching in question should be rejected in favour of an assessment of whether and how the accused ascertained that the complainant was consenting to such activity.  The mens rea of the offence should be established where the accused is shown to have been aware of or reckless or willfully blind as to the fact that the complainant has not communicated consent to the activity in question.  In determining whether an accused had the requisite culpable (guilty) state of mind, it is necessary for the trier of fact objectively to examine not only the verbal and behavioural indicators in the evidence of the complainant’s subjective state, but also the accused’s subjective perception thereof, in light of any relevant circumstances known to him at the time.  Where an accused has demonstrated that he honestly, with some basis in the circumstances, misperceived these indicators, and therefore lacked the necessary “culpable mind”, the defence of honest but mistaken belief may arise.  Here, there was no evidentiary basis for ambiguous communication on the part of the complainant or external circumstances which could have influenced the perceptions of the accused.  The trial judge was thus correct in not putting the defence to the jury. Unquote

More than 35,000 people have already signed an online petition calling for Lenehan’s removal from the bench, and two marches are being planned in Nova Scotia. The Crown has filed an appeal to the Nova Scotia Court of Appeal based on six grounds for the appeal

This case is an extremely interesting one. I believe that the Court of Appeal will struggle with the problem of trying to determine if a victim who remembers nothing of the sex act, either before or during,  will result in giving the accused driver, the benefit of the doubt.

When the Court of appeal gives its decision, I will pass that information on to you; however the appeal probably won’t be heard this year.

Meanwhile, the taxi driver was fired from the taxi service that employed him. If he wants to offer a taxi service, he must to it on his own and he can only work between six in the morning and six in the evening.