LEAF and Avalon Offer a Feminist Analysis of the Court of Appeal’s Decision in R. V. Al-Rawi

For Immediate Release
January 31, 2018

Today, the Nova Scotia Court of Appeal released its decision in the Crown’s appeal of the acquittal of Bassam Al-Rawi on a charge of sexually assaulting a female passenger in his taxi. The Court of Appeal has allowed the Crown’s appeal, quashed the acquittal, and ordered a new trial.

The Women’s Legal Education and Action Fund (LEAF) and the Avalon Sexual Assault Centre (Avalon) intervened before the Nova Scotia Court of Appeal in R. v. Al-Rawi to offer the Court of Appeal a feminist perspective on the legal issues raised in the appeal.

LEAF and Avalon welcome the Court of Appeal’s affirmation of the availability of circumstantial evidence to prove non-consent and incapacity to consent due to intoxication. “This decision sends a strong message to all parties in the justice system that even in cases where a complainant has no memory of her sexual assault due to intoxication, the Crown can prove its case beyond a reasonable doubt through circumstantial evidence,” said Karen Segal, Counsel, Women’s Legal Education & Action Fund (LEAF).

“The consumption of alcohol is a factor regularly exploited by men who commit sexual assault, but which at the same time has often contributed to a low rate of reporting, prosecution and conviction. Avalon is hopeful that the Court of Appeal’s decision will promote more frequent reporting and prosecution of sexual assaults in cases where a complainant has been drinking.” Jackie Stevens, Avalon Sexual Assault Centre.

The Court of Appeal took this opportunity to provide much-needed clarification on the legal standard for “capacity” to consent to sexual touching. “While we are hopeful that this clarification will assist in future cases where capacity to consent to sex is at issue, we are disappointed that the test adopted by the Court of Appeal did not go further in advancing women’s equality. In particular, we would have liked to see the Court of Appeal recognize that if a person is so intoxicated that they cannot affirmatively communicate their consent to sex, they must lack the legal capacity to consent,” said Kelly McMillan & Nasha Nijhawan, counsel for the Intervenors.

LEAF and Avalon also advanced arguments before the Court of Appeal which highlighted the ways in which discriminatory myths and stereotypes about women, including intoxicated women, have affected judicial decision-making in this area. “LEAF is disappointed that the Court of Appeal did not take the opportunity presented by this appeal to address the discredited myths and stereotypes about sexual assault complainants that, in LEAF’s view, played a role in the trial judge’s reasoning in this case.” Karen Segal, Counsel, Women’s Legal Education & Action Fund (LEAF).

LEAF and Avalon are grateful to pro bono counsel Kelly McMillan and Nasha Nijhawan of Nijhawan McMillan Barristers for their representation in this case. You can read LEAF and Avalon’s factum here.

Contact:
Kelly MacMillan/Nasha Nijhawan
902-407-5145
nasha@nmbarristers.com
kelly@nmbarristers.com

Jackie Stevens
Executive Director, Avalon Sexual Assault Centre
executivedirector@avaloncentre.ca

Karen Segal
Counsel, Women’s Legal Education and Action Fund
k.segal@leaf.ca