Defence argues 'stark contradictions' in former cabbie's sex assault retrial

The lawyer for a former Halifax taxi driver says evidence showing the complainant's DNA on his client's lips is not sufficient to prove a sexual assault took place.

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 has pleaded not guilty. The complainant's identity is protected by a publication ban.

The accused, who finished testifying in Halifax provincial court last week, says his passenger kissed his cheek after he told her she was smart and beautiful. Al-Rawi testified he attempted to comfort and calm the complainant because she was upset about running into an ex.

In his final submissions in Halifax provincial court Thursday, defence lawyer Ian Hutchison told the court Al-Rawi could have transferred DNA from that kiss to his own lips if he touched his cheek with his hands.

Hutchison also challenged the Crown's suggestion that Al-Rawi pulled off the complainant's jeans, pointing to the lack of evidence about any of the complainant's DNA on his client's hands. There were four DNA profiles found in swabs from Al-Rawi's palms, but the samples were too small to yield any information about who they came from.

Hutchison argued it was "physically impossible" for Al-Rawi to turn around in the Honda Civic as the Crown has suggested because his client had his foot on the brake the entire time.

He said due to his client's position in the driver's seat, it would have been difficult for him to pull off the complainant's jeans or touch her sexually — either by kissing her lips or performing oral sex.

"It's impossible given his size and the space within the vehicle itself for Mr. Al-Rawi to perform that act," he said.

Al-Rawi testified he didn't believe the complainant ever lost consciousness, but Hutchison said had that been the case as the Crown has suggested, there would be more plausible opportunity for a sexual assault.

"All he has to do is drive to a very quiet area of the south end, park the car in a surreptitious manner and get out of the car and into the back," he said. "The answer is Mr. Al-Rawi never had that intent and never engaged in that form of touching."

'Not turning into a secluded area,' says lawyer

Hutchison argued when Al-Rawi was arrested on Atlantic Street, his client was stopped close to homes and a sidewalk with the engine running and headlights on.

"He's not turning into a dark alley, it's not turning into an underground car park, it's not turning into a secluded area in the south end. It's turning into a residential street," he said.

"If Mr. Al-Rawi was going to, why would he commit a sexual assault on a residential street 20 feet from a residence, one metre from the curb… with his foot on the brake?"

The defence lawyer asked the court if it is reasonable to assume Al-Rawi was sexually assaulting the complainant or attempting to as the headlights of a police cruiser beamed into his vehicle.

He also said given Al-Rawi pressed the button for the metre at 1:09 a.m. on May 23, 2015, and a police officer recorded arriving around 1:19 a.m., there was "insufficient time for him to commit the offence in the way the Crown suggests."

Why Al-Rawi said his pants were unbuttoned

The retrial earlier heard a police officer testify she found the complainant unconscious in the idling cab.

Hutchinson referred to "stark contradictions" between the Crown's idea that the complainant was passed out while Al-Rawl allegedly pulled off her pants and assaulted her, yet the woke up from a police officer's light touch.

Const. Monia Thibault also testified Al-Rawi's pants were unbuttoned and he was positioned between the woman's bare legs.

Al-Rawi told the court he had unbuttoned his tight jeans earlier in his shift, but that his jacket was long enough that passengers wouldn't see them open.

"What's unreasonable about a cab driver loosening their pants while driving for a long period of time?" Hutchison asked the court.

While concluding, Hutchison said there reasonable doubt any sexual touching occurred.

The Crown has submitted written arguments and is expected to address the judge Friday. Judge Ann Marie Simmons said she will reserve her decision until a later date.

2nd trial for same case

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 original trial judge's comments that "clearly, a drunk can consent" sparked outrage, protests and complaints.

The CBC's Elizabeth McMillan live blogged from court.