Panel reserves decision on ex-cabbie’s appeal

A Nova Scotia Court of Appeal panel has reserved decision on a former Halifax taxi driver’s appeal of his conviction for sexual assault.

Bassam Al-rawi, 45, was found guilty in Nova Scotia Supreme Court last August of sexually assaulting an intoxicated woman at his apartment in Bedford on Dec. 15, 2012.

Al-rawi was sentenced last December to two years in prison. He filed an appeal of his conviction two weeks later, claiming the trial judge, Justice Gerald Moir, made several errors in his assessment of the evidence.

He wants the Appeal Court to overturn the conviction and either replace it with an acquittal or order a new trial.

Al-rawi was granted bail in January pending the outcome of his appeal. He was allowed to return home to Germany, where he has lived for several years. His wife was due to give birth to their first child in May.

A three-member panel made up of justices Peter Bryson, Cindy Bourgeois and Elizabeth Van den Eynden heard the appeal Friday.

Al-rawi’s lawyer, Ian Hutchison, said the judge erred when considering evidence relating to the credibility of the complainant and when considering identification evidence, improperly used hearsay evidence, improperly shifted the burden of proof to the defence, and erred in determining whether the mens rea, or state of mind, required for the offence of sexual assault was met.

Much of Hutchison’s submission centred on the trial judge’s explanation for why he accepted that the complainant had sharp memories of the assault itself but not of some of the events that led up to it that evening.

“One expects an intoxicated person who undergoes a violent assault to be more alert when the assault happens,” Moir said in his decision.

Hutchison said that was “impermissible speculation” and was the final finding that tipped the scales in terms of the judge accepting the complainant’s evidence.

“That finding is one of universal application, not individual application,” the lawyer argued.

“The errors that happened in this case are not minor or harmless errors," Hutchison said after touching on the other grounds of appeal. "This is not a case (where) the evidence against Mr. Al-rawi was so overwhelming ... that the finding of guilt can stand.”

The complainant, whose identity is protected by a publication ban, testified at trial that she was visiting Halifax with friends and was walking alone along a downtown street when a taxi driver picked her up. She said the driver took her to his apartment after she was unable to connect with her brother, who lived in Halifax, and then raped her while she pretended to be asleep.

Police investigated the woman’s complaint at the time but did not charge Alrawi. When an investigator showed Al-rawi a photo of the woman during a videotaped interview in March 2013, he said he remembered her face but did not recall having sex with her. He said that if they did have sex, it was consensual.

Investigators reopened the file when the complainant contacted police again in 2017, after she heard a media report that Al-rawi had been acquitted of sexually assaulting a drunk female passenger who was found unconscious and partially naked in the back seat of his vehicle in May 2015.

Al-rawi did not testify at this trial, but a video of his 45-minute statement to police was entered into evidence by the Crown.

In his verdict, Moir said he was convinced beyond a reasonable doubt that Al-rawi had sexual intercourse with the woman without her consent. A defence of an honest but mistaken belief in consent was not available, the judge said, because Al-rawi did not take reasonable steps to ascertain whether the woman was consenting to sex, either by words or conduct.

Although the woman was unable to positively identify Al-rawi in court as her assailant, the judge said Al-rawi’s statement to police helped establish his identity, along with the testimony of two men who recognized him in surveillance video from the Bedford apartment building.

Crown counsel Mark Scott said Friday the live issues for the trial judge to consider in his decision were the credibility of the complainant and the identity of the taxi driver.

Scott said credibility assessments are difficult for judges to undertake and articulate.

“The nature of the credibility assessment demands deference, and I would suggest that it also demands a measure of forgiveness in a trial judge’s expression with respect to the credibility findings,” he said.

“Because a trial judge has a need to give reasons, and they’re aware of that, and their duty to give reasons includes resolution of credibility, the two will come into conflict with each other. … It would be rare to think that a trial judge’s total consideration and analysis of credibility could ever be articulated and ever make it to the written page. That’s just the nature of the role of the trial judge. But what it does invite is imprecision and clumsiness, because sometimes it’s just plain hard to articulate.

“That does not mean that a trial judge is in error when they choose certain words.”

Even if the appellate panel finds the trial judge made errors as claimed by the defence, there would still be enough reasons to support his finding that the complainant was credible and that her evidence was reliable, Scott said.

Al-rawi’s bail conditions require him to return to Halifax two weeks before the Appeal Court releases its decision. Bryson confirmed Friday that the court will provide sufficient notice for Alrawi to arrange a flight from Germany.

The March 2017 acquittal in Halifax provincial court on the earlier charge received national attention after the trial judge, in finding the Crown failed to prove the woman in that case had not consented to sexual activity, commented “clearly, a drunk can consent.”

The Appeal Court overturned that acquittal and ordered a new trial, saying the judge had erred in law by ignoring or disregarding circumstantial evidence of lack of consent. Al-rawi was found not guilty again by a different provincial court judge in September 2019.