“Clearly, a drunk can consent”


Canadians across the country outraged after Bassam Al-Rawi, 40, was found not guilty of sexual assault following a two-day trial in February in Halifax’s provincial court.  The charges arose from a police officer finding Al-Rawi in his taxi with his seat reclined, and the complainant in the back seat, extremely intoxicated and unconscious. Her legs were propped up on the front passenger seat. Her pants were down and Al-Rawi was holding her urine-soaked pants and underwear (when he attempted to hide when the officer approached his car). Her blood alcohol level was between 223 and 244 milligrams of alcohol in 100 millilitres of blood, which experts testified means she was drunk enough to both forget events and lose track of her surroundings.

Her DNA was found on Al-Rawi’s upper lip, but the judge suggested there were reasonable means other than assault by which it might have gotten there. As he was holding her urine-soaked pants, the judge suggested that maybe he “intentionally or absent-mindedly” wiped his upper lip. Justice Lenehan said he found it likely the driver had pulled off the woman’s pants, since they were inside out with her underwear caught up in them, but he was unsure whether they were removed consensually.

To find Al-Rawi guilty of sexual assault, the Crown would have had to establish beyond a reasonable doubt, that Al-Rawi touched the compliant in a way that it violated her sexual integrity, and that it was done without her consent. In Justice Lenehan’s words, “The Crown failed to produce any evidence of lack of consent at any time when Mr. Al-Rawi was touching [her].

Judge Lenehan found that it is uncertain when she actually passed out and said she may have consented to the encounter before losing consciousness.

The Criminal Code of Canada sets out a number of circumstances in which a person cannot consent. Of of those (s.273.1(2)(b)) is when “the complainant is incapable of consenting to the activity.” That certainly does not require the person to be passed out.

Under Canadian law, a person giving consent must be in a state of mind that enables them to make decisions. They can withdraw it at any time and it can be limited to certain acts. The Supreme Court has held that there is no defence of implied consent available to defendants.

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

The question is whether the judge was simply wrong on the law around consent in sexual assault, or whether it is an indicator of a deeper issue of judicial bias in sexual assault cases in our country. Elaine Craig, Associate Professor of Law at Dalhousie University’s Schulich School of Law said, “I think we should be concerned when a trial judge in a sexual assault case refers to a complainant as ‘a drunk’.” This decision shows that the law does not take sexual assault as seriously as it should. Sexual assault reporting is already extremely low, and some critics of this ruling fear that cases like this reinforce the idea that it is ‘not worth’ pursuing criminal charges against perpetrators.

While he was not found guilty, the Halifax Taxi Association said Al-Rawi will “never drive for a cab company in the HRM again.”

This blog post was written by a CCLA-PBSC RightsWatch student. Views expressed do not necessarily reflect the views of the CCLA or PBSC.