2nd sexual assault trial opens for former Halifax cab driver

A former Halifax taxi driver was on trial Monday morning in Halifax provincial court on a charge of sexual assault.

This is the second trial for Bassam Al-Rawi in connection with what happened in his cab early on the morning of May 22, 2015.

Al-Rawi was acquitted at his first trial in March 2017. That acquittal provoked a national outcry, including street protests and complaints about the conduct of the trial judge, after he said in his ruling that "clearly, a drunk can consent."

The first — and so far only — witness to testify in the second trial is Det. Const. Marshall Hewitt, who was a forensic identification officer with Halifax Regional Police.

He took pictures and collected DNA evidence from Al-Rawi and his taxi. The trial adjourned early on Monday to allow the defence time to study new evidence.

The events at the centre of this case involve an 11-minute cab ride a woman took from Halifax's downtown bar district, ending up in the city's south end. It was far from her intended destination.

The CBC's Blair Rhodes live blogged from court. Mobile users can read here.

Windows steamed up

When police came across Al-Rawi's taxi, the windows were steamed up.

Justice Duncan Beveridge of the Nova Scotia Court of Appeal summarized what police found in a decision released last January.

"The complainant was in the rear seat, naked from the waist down, with her breasts exposed. Her legs were propped over the front seats. She was unconscious," Justice Beveridge wrote for the three-member panel who ordered a new trial in this case.

Beveridge went on to describe evidence police gave of Al-Rawi's condition that night.

"The respondent was seen turned in his seat, between the complainant's open legs.  The police saw him trying to hide the complainant's urine-soaked pants between the console and front seat.  He then fumbled with the complainant's shoes on the floor of the driver's compartment. The police described the respondent's zipper as part-way down, as were the back of his pants."

No recollection of driver or drive

After they arrested Al-Rawi, police had to rouse the woman, who had no recollection of the cab driver or the drive.

In his decision to acquit Al-Rawi, Judge Gregory Lenehan of the provincial court said the Crown failed to produce any evidence that the woman had refused consent to sexual touching by the cab driver.

The Court of Appeal disagreed. "[T]here was ample circumstantial evidence that would permit the inference to be drawn that either the complainant did not voluntarily agree or lacked the capacity to do so," Beveridge wrote.

Evidence at the first trial showed the woman's blood-alcohol level that morning was more than twice the legal limit.

She testified to having consumed five beers, two tequila shots and at least one vodka mixed with cranberry juice. She was so intoxicated she was refused entry into Boomers, a downtown bar.

The woman, whose identity is protected by a publication ban, spoke to CBC News after the Court of Appeal ordered a new trial.

She had no recollection of the events surrounding the alleged assault and she was somewhat reluctant about the prospect of a new trial.

"If this is going to bring about some incredibly important issues surrounding consent and the court process, then I guess I'm a fairly good candidate to be involved in that," the woman said at the time.

"If this was just about me, I would say, 'No way.'"

No judicial misconduct

As for Lenehan, he was the subject of a judicial review which found his use of the phrase "clearly, a drunk can consent" was "ill-considered," but did not amount to judicial misconduct.

As the Court of Appeal pointed out in its decision, Lenehan was correctly stating the law.

As Justice Jamie Saunders, another member of the Appeal panel, noted: "One hopes that the outcry which greeted the release of the judge's decision in this case will not cause him or his judicial colleagues to be cowed in the way they decide the matters that come before them, and that they will continue to judge with the courage, independence and impartiality, their oath and our law demand."

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Al-Rawi's legal problems do not end with this five-day trial regardless of outcome.

In December 2012, a woman alleged she was taken by cab from downtown Halifax to a residence where she was sexually assaulted by the cab driver.

Halifax Regional Police investigated the complaint and closed the file in March 2013 without laying a charge.

Troubles not over regardless of outcome

But in September 2017, following the furor over Al-Rawi's first trial, police said they received new information about the 2012 incident and laid a second sexual assault charge against the man.

Ian Hutchison, Al-Rawi's lawyer, originally questioned the validity of that second charge and was seeking to have it quashed.

But outside court Monday, Hutchison said the second case will proceed to trial before a Nova Scotia Supreme Court judge at a later date.