The Women’s Legal Education and Action Fund (LEAF) and Avalon Sexual Assault Centre (Avalon) intervene at the Nova Scotia Court of Appeal (NSCA) in R v Al-Rawi

On Wednesday, November 22, 2017 LEAF and Avalon will appear at the NSCA in the appeal of the acquittal of Bassam Al-Rawi, a taxi driver who was charged with sexually assaulting a female passenger in his taxi. 

The Decision under Appeal

Following a trial in Nova Scotia Provincial Court, Judge Gregory Lenehan acquitted Mr. Al-Rawi of the charge of sexual assault. Despite evidence that the police found the complainant partially undressed and unconscious in the back of Mr. Al-Rawi’s taxi cab, Judge Lenehan found that the Crown failed to prove the complainant’s lack of consent to sexual contact or that the complainant was incapable of offering her consent. The complainant had no recollection of the events due to her level of intoxication and, therefore, could offer no direct evidence of her state of mind at the time of the alleged assault. An unofficial transcript of Judge Lenehan’s decision is available here.

LEAF and Avalon’s Intervention

The LEAF and Avalon intervention advocates for a feminist approach to assessing issues of consent and capacity to consent when the complainant has no memory of the events due to intoxication. Intoxicated women are entitled to choose to consent or not consent to sexual activity. Courts should consider whether an intoxicated complainant subjectively desired to participate in the sexual activity in question and communicated that desire prior to assessing her incapacity to consent. In the absence of direct evidence from the complainant as to her state of mind at the time, it is appropriate to draw inferences regarding consent from the circumstantial evidence, including the level of predatory and exploitative behaviour on the part of the accused.

LEAF and Avalon argue that capacity to consent means capacity to make a voluntary and informed decision to partake in sexual activity and to effectively communicate that decision. The Court should reject a standard that requires the Crown to prove the complainant was unconscious or insensate in order to establish incapacity. Rather, the Court should engage in a contextual analysis of the complainant’s capacity to understand the nature of the act and its associated risks, and her right to decline participation. 

This case is an example of a problematic tendency to conflate the questions of consent and capacity, which may cause judges to acquit the accused after finding reasonable doubt as to incapacity without analyzing evidence of the complainant’s subjective non-consent. This undermines women’s sexual autonomy and draws on outdated and discriminatory stereotypes about intoxicated women: that they are uninhibited, sexually available, and exist in a constant state of consent to sexual contact short of incapacity. 

Intoxicated women are particularly susceptible to predatory sexual behaviour, both because of the vulnerability inherent in extreme intoxication and because of the difficulties women face in proving non-consent in the face of memory loss. It is critical that the courts engage a feminist framework for addressing these cases that affirms women’s right to equality and sexual autonomy. 

You can read LEAF and Avalon’s factum here.

LEAF and Avalon are grateful to counsel Nasha Nijhawan and Kelly McMillan of Nijhawan McMillan Barristers for their pro bono representation in this case.

About Women’s Legal Education and Action Fund (LEAF) 

Since April 17, 1985, when equality rights were enshrined in sections 15 and 28 of the Charter of Rights and Freedoms, LEAF has worked toward equality for women and girls. LEAF intervenes in key cases to ensure that when courts interpret equality rights, there will be a systemic improvement in women’s lives. For more information about LEAF, visit www.leaf.ca.

About Avalon Sexual Assault Centre

Avalon Sexual Assault Centre is a feminist organization in Halifax, Nova Scotia, which provides services for those affected by sexualized violence. Avalon’s primary emphasis is on support, education, counselling and leadership and advocacy services for women and trans/non gender binary people. Avalon offers individual therapeutic counselling and group program services for women and trans/non gender binary individuals age 16 and older, community education, public awareness, legal and professional training targeting the prevention of sexualized violence and intervention and support of victims/survivors. Avalon also operates the Avalon Sexual Nurse Examiner Program which provides immediate response to sexual assault victims of all ages and genders requiring medical care and the collection of forensic evidence. For more information about Avalon Sexual Assault Centre, please visit http://www.avaloncentre.ca.