On drunkenness and consent

Today’s Halifax Metro dedicates five full pages to taxi driver Bassam Al-Rawi’s acquittal on sexual assault charges, and Judge Gregory Lenehan’s comments in rendering his decision:

A Halifax taxi driver found with an intoxicated, unconscious, mostly naked woman in his cab and her DNA on his mouth has been acquitted of sexual assault by a judge who said there wasn’t enough evidence to prove the woman’s “lack of consent.”


Judge Gregory Lenehan ruled that Bassam Al-Rawi was not guilty of sexual assault in Halifax provincial court on Wednesday after he stood trial last month for a May 23, 2015 incident.


The complainant was found by police in Al-Rawi’s cab around 1:20 a.m., passed out after a night of drinking and being turned away from Boomers, a downtown bar. Her belongings were spread around the car as she lay in the backseat with her feet up on the two front seats, only a shirt partially covering her breasts. Her pants were also damp because she urinated on herself.


Al-Rawi’s pants were partially undone and sitting lower on his body, the court heard. As police approached, they saw his seat was reclined and he attempted to hide the woman’s pants and underwear.


“I have struggled to determine what all this evidence proves,” Lenehan said in his decision.


Part of the evidence the Crown presented was a toxicology report showing the 26-year-old complainant would’ve had a concentration of between 223 and 244 milligrams of alcohol in 100 millilitres of blood when police found her.


“Clearly a drunk can consent,” Lenehan said. “As noted by … the forensic alcohol specialist, one of the effects of alcohol on a human body is it tends to reduce inhibitions, and increases risk-taking behaviour.”


There’s no doubt the complainant was unconscious when she was found by police so at that moment she was unable to consent, Lenehan said — but what’s unknown is when exactly she passed out and “that’s important.”


She also couldn’t provide information on whether she “agreed to be naked in the taxi, or initiated any sexual activity,” Lenehan said.

Protestors and petitioners are calling for Lenehan’s job.  But his assertion that “clearly a drunk can consent,” while clumsily stated, is not inaccurate.  It comes down to the facts of a particular case:

Toronto criminal lawyer Robb MacDonald, however, says that one’s level of intoxication limits their ability to adequately consent to a sexual encounter.

“The truth is, intoxicated people can give consent in Canada,” MacDonald told CTV News Channel on Thursday. “The issue is their level of intoxication.”

The Supreme Court of Canada, MacDonald said, has been clear that if someone is intoxicated to the point of being unconscious, they cannot legally give consent to a sexual encounter.

“And secondly,” he said, “if they’re not quite at that level of intoxication, but they are so drunk that they cannot really comprehend the nature of the sexual act that they are embarking upon, then again, consent can be vitiated.”

The issue in this case, MacDonald said, is that woman may have consented to a sexual act only to lose consciousness after it had ended. In his decision, Lenehan said that there was no way to prove beyond a reasonable doubt what happened in the taxi.

“The law is clear that if she’s unconscious at the time that the sexual act begins, there’s no consent,” he said. “If at some point during the sexual act, she becomes unconscious, there’s also no consent. But in this case, if she might have been conscious at the time and giving consent… therein lies the issue.”

Al-Rawi’s conduct, like that of Cst. Doug Snelgrove in Newfoundland, was morally reprehensible.  But that’s not enough to establish criminal guilt.  If the state is going to impose its power to take away someone’s liberty, it must establish that person’s guilt beyond a reasonable doubt.

Judge Lenehan’s interpretation of the facts in this case may have been questionable, but his statement about intoxication and consent is legally sound.

Our judicial system is independent for a good reason: judges must be free to render decisions they believe to be legally correct, even if they are unpopular with the public.  Anything less leads to rule by the mob.

One thought on “On drunkenness and consent

  1. Andre Setton says:

    Damian, great analysis. The part that I find hard to understand is that people are horrified that the judge ruled that she could provide consent (and therefore is not a victim), but the same people would be crucifying this same lady if she had gotten behind the wheel of a car and gotten into an accident, claiming that her being drunk does not take away her responsibility. Doesn’t this sound a lot like having your cake and eating it too?

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