Content warning: this summary includes mentions of sexual assault in the ‘Facts’ section.
This case concerned the meaning of consent in sexual assault law.
LEAF, in partnership with Avalon Sexual Assault Centre, intervened before the Nova Scotia Court of Appeal.
Police found the complainant unconscious in the back seat of Bassam Al-Rawi’s taxi. The complainant was naked from the waist down with her legs propped up on the front seat. She did not know Mr. Al-Rawi, and had no memory of getting into the taxi or of anything that had happened in the taxi. At trial, the judge found that Mr. Al-Rawi had touched the complainant in a sexual manner by removing her pants and underwear, but found that the Crown had produced “no evidence” of a lack of consent. As a result, the judge could not determine when the complainant had lost the capacity to consent, and he acquitted Mr. Al-Rawi. The Crown appealed to the Nova Scotia Court of Appeal.
LEAF and Avalon argued that the meaning of consent and its application in the specific context of an intoxicated complainant needed to be informed by s. 15 of the Charter and the Charter values of equality and autonomy. Where a complainant is unable to recall her state of mind at the time of an alleged assault, courts may use circumstantial evidence to establish non-consent. But reliance on circumstantial evidence should not reinforce discriminatory myths or stereotypes.
LEAF and Avalon also argued that, for a complainant to have capacity to consent, the complainant needed to be able to make a voluntary, informed and autonomous decision. The complainant also needed to be able to effectively communicate that voluntary agreement. Capacity to consent must be context- and situation-specific. It did not require the Crown to prove an intoxicated complainant was approaching unconsciousness. Moreover, evidence of routine decision-making or basic tasks was not sufficient to prove capacity to consent.
The Nova Scotia Court of Appeal allowed the Crown’s appeal and ordered a new trial for Mr. Al-Rawi. The Court provided clarification on the legal standard for capacity to consent to sexual touching. A complainant was not capable of consent if the Crown establishes beyond a reasonable doubt that, for whatever reason, the complainant did not have an operating mind capable of:
- appreciating the nature and quality of the sexual activity; or
- knowing the identity of the person or persons wishing to engage in the sexual activity; or
- understanding she could agree or decline to engage in, or to continue, the sexual activity.
The Court also stated that circumstantial evidence could be used to prove non-consent and incapacity to consent due to intoxication.
LEAF is grateful to Kelly McMillan and Nasha Nijhawan, counsel in this case.
Download the factum here.
Read the Nova Scotia Court of Appeal’s decision here.
Our records are imperfect, but we are doing our best to update them – if you were involved with LEAF on this case but your name is not reflected here, please email us at [email protected].