A former Halifax taxi driver is appealing his conviction for sexual assault, and he’s applied for bail pending the outcome of the case.
A Nova Scotia Supreme Court judge found Bassam Al-Rawi guilty last August of sexually assaulting an intoxicated woman at his Bedford apartment Dec. 15, 2012.
Al-Rawi, 44, was sentenced Dec. 17 to two years in prison. Justice Gerald Moir also ordered him to register as a sex offender for 20 years after he gets out prison, imposed a 10-year firearms prohibition and compelled him to provide a DNA sample for a national databank.
In a notice of appeal filed in the Nova Scotia Court of Appeal on Wednesday by lawyer Ian Hutchison, Al-Rawi claims the judge made several errors in assessing the evidence at trial.
Al-Rawi says the judge erred when considering “certain 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.
He is asking the Appeal Court to set aside his conviction and replace it with a verdict of acquittal or order a new trial.
Al-Rawi, who is in custody at the Central Nova Scotia Correctional Facility in Dartmouth, will appear before an Appeal Court judge next week to seek bail.
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 decided not to charge Al-Rawi. 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 he did have sex with her, it was consensual.
Investigators reopened the file after 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.
Moir approved a new bail order for Al-Rawi after he was convicted. Al-Rawi, who surrendered his passport, was ordered to remain in Nova Scotia and live in Bedford with a friend who pledged $10,000 in personal property.
In her victim impact statement, the complainant discussed the effects of the assault on her personal life, professional life and mental health.
“In order to heal, I’ve had to force myself to revisit the assault many times,” the woman, who appeared at the sentencing hearing via a video link from another province, told the court.
“To add insult to injury, in order to ask for time off work for the trial, therapy or mental health time, I’ve repeatedly had to take the risk and disclose my assault to my workplace superiors in what often can be very uncomfortable and vulnerable conversations.”
She said she hasn’t had a serious romantic relationship since the assault and is still afraid to take a taxi, despite it being unavoidable.
“Many of these impacts I will have to deal with for the rest of my life,” she said.
Al-Rawi was born in Baghdad, Iraq, and came to Canada as a refugee in 2008. He obtained his Canadian citizenship but has lived in Germany for several years. He has businesses there and his wife is expecting their child in May.
Crown attorney Carla Ball recommended a prison term of three to four years. Hutchison argued for a non-custodial sentence or, at worst, two years in prison.
Moir said the devastating impacts of sexual assaults have been recognized in Nova Scotia, and a non-custodial sentence would offend the principles of parity and proportionality.
“I accept his wife’s statement about the severely adverse effects separation by imprisonment will have on her,” Moir said. “Also, I accept her statements about the severe impacts of such on the businesses.”
Moir said while he had flexibility in his sentencing decision, it “cannot be used to impose inappropriate and artificial sentences in order to avoid collateral consequences.”
Al-Rawi’s 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 the acquittal and ordered a new trial, saying the judge had erred in law by ignoring or disregarding circumstantial evidence of lack of consent. The ruling stressed that the judge’s statement that a drunk can consent was correct in law and was not the reason his decision was quashed. Al-Rawi was found not guilty again by a different provincial court judge in September 2019.