HALIFAX — The defence lawyer for a Halifax cabbie who was acquitted of sexual assault in a decision that has drawn a storm of public criticism says his client is an innocent man who is being pilloried unfairly and racially stereotyped.
Luke Craggs says in an emailed news release that 40-year-old Bassam Al-Rawi was found not guilty by Judge Gregory Lenehan for legitimate reasons, including a lack of forensic evidence of sexual activity.
"Many persons have loudly vilified Mr. Al-Rawi. Those most eager to vilify Mr. Al-Rawi seem to be the least eager to gather accurate information,'' Craggs said in his release Monday evening.
Craggs said that a large portion of public discussion has perpetrated the "grotesque stereotype'' that Al-Rawi's Arab race and Muslim religion mean he is prone to sexually assault a vulnerable woman.
Lawyers group defends judge
Also Monday, the Nova Scotia Criminal Lawyers Association issued a statement saying criticism of Lenehan's "partiality, competence, and his qualifications ... is unfounded and undermines the discussion that is needed to address the prevention of sexual assault.''
"Most importantly, he is fair. He is the type of person that any reasonable, informed member of the public should want as a judge.''
Al-Rawi was charged after police found the woman, in her 20s, intoxicated, unconscious and partially naked in his car in the early hours of May 23, 2015.
“He is the type of person that any reasonable, informed member of the public should want as a judge.''
— Nova Scotia Criminal Lawyers Association
A police constable testified during the trial that she saw Al-Rawi shoving the woman's pants and underwear between the front seats during the arrest. At the time of his arrest, Al-Rawi's seat was partially reclined and the woman's legs were resting on the back of the front bucket seat.
Al-Rawi's pants were undone at the waist and his zipper was down a couple of inches. Evidence of the woman's DNA was found on Al-Rawi's mouth, but the bodily substance couldn't be identified.
Lenehan said the evidence was concerning, and that the officer was correct to arrest Al-Rawi because "any reasonable person'' could believe that Al-Rawi was engaging in or about to engage in sexual activity with a woman who is incapable of consenting.
However, he said in his oral decision that the Crown provided no evidence on whether or not the woman consented to sexual activity.
Crown did not prove assault beyond reasonable doubt: judge
He said for Al-Rawi to be convicted the Crown had to show beyond a reasonable doubt that Al-Rawi not only touched the woman in a way that violated her sexually, but that it was done without her consent.
Lenehan said a person is incapable of consent if they are unconscious or are so intoxicated that they are unable to understand or perceive their situation.
"This does not mean, however, that an intoxicated person cannot give consent to sexual activity,'' he said. "Clearly, a drunk can consent.''
That comment prompted condemnation of the judge by some citizens, a critical news release from sexual assault centres across the province, and anger from the woman at the centre of the trial.
"Clearly, a drunk can consent.''
— Judge Gregory Lenehan
The woman told The Canadian Press in an email Monday that Craggs' defence of his client amounted essentially to a restatement of Al-Rawi's defence at trial.
The young woman didn't attend court on the day of the decision, and said when she first read Lenehan's remarks she was extremely angry.
Alleged victim took it 'personally'
"It was impossible for me not to take it personally, and in general I wouldn't want anyone in that position to be labelled a drunk or to be told that being drunk made them not credible,'' she said.
Craggs said in his news release that trained sexual assault nurses carefully examined the woman and Al-Rawi's DNA was not found on her. "In fact, this examination found no evidence of any sexual activity, consensual or otherwise,'' he wrote.
"The fleeting gratification of this uninformed public pillorying carries real world consequences for both Mr. Al-Rawi and informed public discourse,'' he wrote.
"Now that everyone is showing their rage, that makes me feel better.''
The woman in the case said she won't be attending a protest planned for downtown Halifax on Tuesday, but is grateful it's happening.
"Now that everyone is showing their rage, that makes me feel better,'' she said.
Crown spokeswoman Chris Hansen said if there is an appeal it will be based on legal errors in Lenehan's decision, not the public outcry.
"We don't appeal a decision just because we don't like it, we don't appeal a decision because it's not a popular decision in the public realm. It has to be based on an error in law.''