Crown appeals acquittal in taxi sex assault case where judge said 'drunk can consent'

Nova Scotia's Public Prosecution Service says it is appealing the sexual assault acquittal of Halifax cab driver Bassam Al-Rawi that has sparked outrage and concern from the public and advocates for victims.

Judge Gregory Lenehan found Al-Rawi not guilty last week, citing the Crown's failure to prove the complainant's lack of consent. Al-Rawi was found by police parked in his taxi buttoning up his pants while his passenger was in the back seat, naked from the waist down, and passed out.

"We have conducted a legal analysis of the judge's decision and have concluded there is a solid basis to appeal the ruling," Denise Smith, deputy director of public prosecutions, said in a release.

Appeal based on issue of consent

The Crown is appealing based on at least six grounds, all relating to the issue of consent, Jennifer MacLellan, a senior Crown counsel in Halifax, said in an interview.

Those grounds include that Lenehan erred in law in suggesting there was no evidence of the lack of consent on the part of the complainant, speculating on the issue of consent rather than drawing inference from the facts proven in court and failing to determine "whether the accused had taken all reasonable steps to ascertain that the complainant was consenting."

• TRANSCRIPT: Read the full decision from judge who said 'clearly a drunk can consent'

In delivering his oral decision, Lenehan also said "clearly, a drunk can consent."

That comment, along with the acquittal, has prompted outrage across the province and beyond. A protest was scheduled today in Halifax, petitions are being circulated about Lenehan's conduct and at least one formal complaint has been filed with the provincial judiciary.

Despite the outrage, however, MacLellan said the comment isn't what prompted the appeal. For an appeal to happen, she said, the Crown must be able to identify what it believes to be an error in law.

"We can't simply say, 'That comment is troublesome, we don't like it,'" she said. "We have to just look at the whole of the decision and determine if it points to an error of law."

The Crown is well aware of the outrage and concern in the community, she said, but that, too, is not enough for an appeal and had no influence in the decision.

Can't be based on outrage

"We can't say, 'Well, there's public outrage, so therefore we have to go ahead with an appeal.'"

MacLellan said Al-Rawi would be served notice of the appeal and the court would then work to schedule dates.

Meanwhile, as criticism mounts, an association for criminal lawyers in the province has voiced support for Lenehan, and Al-Rawi's lawyer, Luke Craggs, has condemned the way his client has been treated in public since the acquittal.