R. v. Al-Rawi, 2019 NSPC 37

PROVINCIAL COURT OF NOVA SCOTIA Citation: R. v. Al-Rawi , 2019 NSPC 37 Date: 20190904 Docket: 2866665 Registry: Halifax BETWEEN: HER MAJESTY THE QUEEN v. BASSAM AL-RAWI Restriction on Publication: s. 486.4: Bans under this

section direct that any information that will likely identify the complainant shall not be published in any document or broadcast or transmitted in any way. Editorial Notice: The electronic version of this judgment has been modified to remove identifying information. Judge: The Honourable Judge Ann Marie Simmons Heard: January 7, 8, 9, 10, 11, 2019 April 15, 16, 17, 18, 2019 May 23, 30, 31, 2019 Location: Halifax, Nova Scotia Oral Decision: September 4, 2019 Written Decision: September 19, 2019 Charge:

Section 271 of the Criminal Code Counsel: Carla Ball and Jennifer A. MacLellan, QC, for the Crown Ian Hutchison, for the Defence By the Court: Introduction [ 1 ] Bassam Al-Rawi is charged that he did, on May 23, 2015, commit the offence of sexual assault on the person of Ms. L.W., an offence contrary to s. 271 of the Criminal Code . The offence is alleged to have occurred during the early morning hours, in the back seat of a taxicab operated by Mr. Al-Rawi. Police came upon the taxicab stopped on Atlantic Street in the south end of Halifax. Ms.

L.W. was found in the back seat, partially naked, and meaningfully impaired by the consumption of alcohol. Mr. Al-Rawi was immediately arrested for the offence of sexual assault. [ 2 ] Over four years have passed since that moment in time. Much has transpired, including a prior trial, an appeal resulting in an order for a new trial, and substantial public interest in these proceedings. Today, following ten days of evidence heard between January and May of this year, I will render my decision.

Given the substantial public interest in these proceedings, it may be helpful for me to be clear that my decision is based solely upon the evidence called during the course of this trial. [ 3 ] Briefly, the theory of the Crown is that Mr. Al-Rawi drove his taxi to a secluded location and committed a sexual assault upon Ms. L.W. who was at the time incapacitated by alcohol to the extent that she was ‘unconscious’. While in that state, it is alleged that Mr. Al-Rawi removed her jeans and underwear, thereby committing a sexual assault. Further, the Crown alleges that Mr. Al-Rawi touched Ms.

L.W. with his mouth in sexualized circumstances. Ms. L.W. has no memory of the events. The Crown argues that whatever form of sexual assault occurred, Ms. L.W. did not have the capacity to consent to sexual activity. In the alternative the Crown urges me to find that the evidence supports the conclusion that Mr. Al-Rawi attempted to commit a sexual assault. [ 4 ] Mr. Al-Rawi chose to testify in his own defence. He recounted the events of May 23, 2015 in some detail. He readily acknowledges that Ms.

L.W. was intoxicated, emotionally upset and behaving in a way which demonstrated the very substantial impact of alcohol on her conduct. He steadfastly denies that he had any sexual contact with Ms. L.W. He described erratic behaviour on her part and testified that Ms. L.W. removed her own clothing. For what reason, he cannot say, but not as a result of any sexual interaction between he and Ms. L.W. To be clear, the theory of the defence rests squarely on the argument that the Crown has failed to prove the actus reus of the offence beyond a reasonable doubt.

The Elements of the Offence of Sexual Assault [5] The essential elements of the offence of the offence of sexual assault were clearly defined by the Supreme Court of Canada’s1999 decision in R. v. Ewanchuk, (SCC), [1999] 1 S.C.R. 330. 23 A conviction for sexual assault requires proof beyond reasonable doubt of two basic elements, that the accused committed theactus reus and that he had the necessary mens rea. The actus reus of assault is unwanted sexual touching.

The mens rea is the intentionto touch, knowing of, or being reckless of or wilfully blind to, a lack of consent, either by words or actions, from the person beingtouched. … 25 The actus reus of sexual assault is established by the proof of three elements: (

i) touching, (ii) the sexual nature of the contact,and (iii) the absence of consent. The first two of these elements are objective. It is sufficient for the Crown to prove that the accused’sactions were voluntary. The sexual nature of the assault is determined objectively; the Crown need not prove that the accused had anymens rea with respect to the sexual nature of his or her behaviour: see R. v. Litchfield, (SCC), [1993] 4 SCR 333, and R.v.

Chase, (SCC), [1987] 2 SCR 293. 26 The absence of consent, however, is subjective and determined by reference to the complainant’s subjective internal state ofmind towards the touching, at the time it occurred: see R. v. Jensen (1996), (ON CA), 106 CCC (3d) 430 (Ont. C.A.),at pp. 437-38, aff’d (SCC), [1997] 1 SCR 304, R. v. Park, (SCC), [1995] 2 SCR 836, at p. 850, perL’Heureux-Dubé J., and D. Stuart, Canadian Criminal Law (3rd ed. 1995), at p. 513. [6] In R. v.

Al-Rawi, 2018 NSCA 10, the Nova Scotia Court of Appeal set out the applicable law with respect to the mens reaelement of the offence and, specifically, with respect to the question of capacity to consent: [66] Therefore, a complainant lacks the requisite capacity to consent if the Crown establishes beyond a reasonable doubt that, forwhatever reason, the complainant did not have an operating mind capable of: 1. appreciating the nature and quality of the sexual activity; or 2. knowing the identity of the person or persons wishing to engage in the sexual activity; or 3. understanding she could agree or decline to engage in, or to continue, the sexual activity. [67] In cases where consent and capacity to consent are live issues, the trial judge must determine if it has been established beyonda reasonable doubt that the complainant did not consent, or lacked the capacity to consent.

As detailed above, these inquiries are entirelysubjective. [7] Further, as the Supreme Court of Canada made clear in the recent decision in R. v. Barton, 2019 SCC 33, (at para 90) relyingon the Court’s earlier pronouncement in Ewanchuk, for the purposes of the mens rea, consent means “that the complainant hadaffirmatively communicated by words or conduct her agreement to engage in [the] sexual activity with the accused”. Essential Legal Principles [8] Before I commence my review of the evidence, it is helpful to remind ourselves of the fundamental principles relevant to anytrial.

Every person charged with an offence is presumed to be innocent, unless, and until, the Crown proves guilt beyond a reasonabledoubt. The burden rests with the Crown. There is no burden on Mr. Al-Rawi to prove that he is innocent. [9] In R. v. Lifchus, (SCC), [1997] 3 SCR 320, the Supreme Court of Canada explained the components of thephrase proof ‘beyond a reasonable doubt’. I am guided by this decision, including the following aspects of the Court’s direction. [10] A reasonable doubt is not an imaginary or frivolous doubt.

It is not a doubt based upon sympathy for or prejudice againstanyone involved in this trial. It is a doubt that logically arises from the evidence, or the absence of evidence. [11] I must decide, taking into consideration the evidence as a whole, whether the Crown has proven Mr. Al-Rawi’s guilt beyond areasonable doubt. Proof beyond a reasonable doubt does not involve proof to an absolute certainty and should not be equated with proofbeyond any doubt. Equally, more is required than proof that the accused is probably guilty. In such a case the Court must give thebenefit of the doubt to Mr.

Al-Rawi. [12] As I said, Mr. Al-Rawi has chosen to testify in his own defence. His evidence is a complete denial of the allegations of anysexual interaction with Ms. L.W. Accordingly, I am guided by the Supreme Court of Canada’s direction in R. v. W.D., (SCC), [1991]1 SCR 742. [13] I must determine whether the evidence, arising principally, but not solely, from the testimony of Mr. Al-Rawi, is capable ofpreventing the Crown from proving the offence of sexual assault beyond a reasonable double.

Put another way, the evidence before mewhich is inconsistent with guilt may, if I accept it as true, result in acquittal, OR, it may leave me unable to resolve the conflictingevidence and cause me to conclude that I am left with a reasonable doubt as to the guilt of the accused. [14] However, even if I entirely reject Mr. Al-Rawi’s evidence, I must then assess the remaining admissible evidence in order todetermine whether the Crown has proven the offence beyond a reasonable doubt. [15] The task of assessing evidence is not one which should devolve to a credibility contest. It is not a comparative exercise.

Iinstruct myself not to simply decide whether I prefer the defence evidence or the Crown evidence. I must carefully analyse all of theadmissible evidence and draw conclusions as to what evidence I accept and what I evidence I do not accept. Then, in the context of the

whole, determine whether I have a reasonable doubt as to an essential element of the offence charged. [16] Assessing the viva voce evidence of the witnesses who were called during this trial requires that I consider both credibility andreliability. Credibility refers to truthfulness or veracity. Reliability refers to the witnesses’ ability to accurately recall and recount theirobservations and interactions with others. Civilian, police and expert evidence was adduced at trial.

With the exception of the twoexpert witnesses, the passage of time has, as one would expect, had an impact upon the recollection of virtually all the witnesses. Thisreality may impact the reliability of a witness’ testimony and the weight I should give to the evidence. I may accept some, all or none ofthe testimony given by a witness.

I must assess all of the evidence and consider that which may tend to support or undermine thereliability, or credibility of each witness’ testimony. [17] Outside the self-evident fact that the events giving rise to this prosecution occurred just short of four years before trial, there islittle challenge as to the reliability of the evidence tendered. The only exception is the consumption of alcohol by certain of thewitnesses. From the defence perspective there is little challenge as to the credibility of the witnesses called by the Crown.

However,from the Crown perspective the question of credibility looms large. The Crown argues that I should reject Mr. Al-Rawi’s evidence asincredible and implausible. [18] The jurisprudence provides me guidance in terms of the factors I should consider in making findings of credibility. Forinstance, the oft-cited case of Faryna v.

Chorny, (BC CA), [1952] 2 DLR 354 (B.C.C.A.) at paras. 9 and 10) instructsthat I should consider opportunities for knowledge, powers of observation, judgment, memory, and the ability to describe clearly whathas been seen and heard. [19] I am also guided by the insights of Justice Paciocco in his 2017

article Doubt about Doubt: Coping with R. v. W.(D.) andCredibility Assessment ((2017) 22 Cdn Criminal LR, 31). In particular, the discussion concerning assessment of the indicia of credibilityin terms of the evidentiary content of a witness’ evidence. I am mindful of the following considerations in my assessment of theevidence tendered on this trial: Is the testimony of the witness plausible, or does it lack an air of reality? Is there admissible evidencethat materially supports or contradicts the testimony of the witness?

Is the evidence “externally consistent” in the sense that it fits withother evidence in the case? Are there “internal inconsistencies” that, by their nature, could reasonably be attributed to dishonesty? Finally, was the evidence presented in a “balanced way” or was the evidence presented strategically? Circumstantial Evidence [20] The Crown’s case relies upon both direct and circumstantial evidence. Circumstantial evidence is defined as any item ofevidence, whether testimonial or real, other than the evidence of an eyewitness to a material fact.

It is any fact from the existence ofwhich I may infer the existence of a fact in issue. It is critical that I distinguish between inference and speculation, as the latter isimpermissible. In simplistic terms, an inference is a deduction of fact that may logically and reasonably be drawn from another provenfact(s). [21] The Supreme Court of Canada’s decision in R. v. Villaroman, 2016 SCC 33 , [2016] 1 SCR 1000, is the leadingauthority in this area of the law. The decision holds that an inference of guilt drawn from circumstantial evidence should be the onlyreasonable inference that such evidence permits.

The Crown’s heavy reliance upon circumstantial evidence in this case causes me tocaution myself against the risk of “filling in the blanks” by too quickly overlooking reasonable alternative inferences, that is, inferencesother than guilt. [22] In Villaroman, the Court settled the question as to whether an inference must be based on proven facts. The decision holds thatinferences consistent with innocence do not have to arise from proven facts.

To do otherwise wrongly puts an obligation on an accusedto prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. [23] Further, Villaroman instructs me that in order to draw an inference, it must be reasonable given the evidence and the absence ofevidence, assessed logically, and in light of human experience and common sense. Put another way, I must consider other plausibletheories and other reasonable possibilities which are inconsistent with guilt.

It may be that the Crown will be required to negate areasonable possibility in order to prove an essential element of the offence, however, the Crown is not required to negate every possibleconjecture no matter how irrational or fanciful which might be inconsistent with the innocence of the accused.

Other plausible theoriesmust be based on logic and experience applied to the evidence or the absence of evidence, and not on speculation. [24] Writing for the Court, Justice Cromwell framed the very difficult question before me in this way (at para. 38): “whether thecircumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other thanthat the accused is guilty”? [25] I recognize that I am not to assess each piece of evidence individually on a standard of proof beyond a reasonable doubt. (R. v.Al-Rawi, supra, at para. 73 citing R. v.

Morin, (SCC), [1988] 2 SCR 345). My task is to take into consideration all of theevidence, direct and circumstantial, relevant to each element of the offence. The Evidence [26] In assessing the evidence as I must, I find it helpful to first consider the evidence called by the Crown as a means of assessingthe defence case and determining whether the Crown has proven the offence beyond a reasonable doubt. I will also consider the contentof Exhibit 31, Admissions made between Crown and Defence, in relation to various issues. Ms. L.W.’s Activity the evening of May 22, 2015, Prior to Entering the Taxi [27] Ms.

L.W. was 26 years of age in May of 2015. In 2011 she completed a bachelor’s degree at Saint Mary’s University. She hasheld a responsible position with a financial administration company in Halifax for over seven years. In May of 2015 she lived with herthen long-time best friend, Ms. L.I., at an address not far from the Armdale Rotary in Halifax. They had moved to that address inOctober of 2014.

12:06am D The same as girls 12:32am D Are you ok? 12:41am Ms. L.W. No 12:42am Ms. L.W. I am not got 12:42am D What’s up girl ? 12:52am Ms. L.W. Come down here 12:52am D Where? 12:53am Ms. L.W. Alehouse 12:53am D Oh lord lol 2:57am D :( ????? 4:42pm D :( Good Morning [ 28 ] During the first two years of her university education Ms. L.W. lived on campus in residence in south end Halifax. During the third and fourth years of her studies at Saint Mary’s she lived at two different places off campus. She lived at three other Halifax addresses before moving with Ms.

L.I to the address near the Rotary. [ 29 ] On May 22, 2015, Ms. L.W. and Ms. L.I attended a charity event at Keith’s Brewery. The event was coordinated by Mr. K.O. who was then Ms. L.I.’s fairly recent boyfriend, now husband. The two women met up at home after work and made their way to the event. Ms. L.W. was running late, got ready quickly and left with Ms. L.I who drove to the event. Due to the fact that she was in a hurry, Ms. L.W. did not eat supper that night. [ 30 ] Ms. L.W. testified that five beverages were part of the ticket cost.

She recalls that between 8:00 and 10:00 p.m., she drank five tap beer, served in a regular sized, likely pint, glass. She had nothing to eat at the event. Ms. L.W. believes that she left not long after 10:00 p.m. with Ms. L.I, Mr. K.O., and a few of his friends. They walked to the Midtown Tavern, which is known as Boomers in the evening hours. The walk to Boomers was by a direct route, meaning they likely arrived at 10:20 p.m. Ms. L.W. recalls that during the walk to Boomers she felt quite intoxicated. [ 31 ] Ms. L.W. testified that her memory becomes hazy at the point in the evening that she arrived at Boomers.

She believes that they entered and ordered drinks immediately. Her overall memory of being at Boomers is that she drank two tequila shots, a mixed drink containing vodka and likely cranberry juice. [ 32 ] Ms. L.W. has very little memory of the events of the evening following her arrival at Boomers. She felt that she became intoxicated fairly quickly, as a result of not having eaten any food before, or during, the evening. To be clear, she has no memory of interacting with staff at Boomers, being outside the bar with Ms. L.I or Mr. K.O. , or being in the taxi with Mr. Al-Rawi.

Her next memory is of interacting with a uniformed female police officer. She recalls being in the back of an ambulance and interacting with staff at the hospital, including signing a consent form, and that her mother came to the hospital with a change of clothes. She described feeling emotionally numb as the physical examination occurred at the hospital. [ 33 ] Ms. L.W. testified that in 2015 she did not frequently consume alcohol. She thought the fall of 2014 was the last time she had been downtown with her friends and consuming alcohol.

In the early years of her university studies consuming alcohol was a more frequent occurrence. Ms. L.W. acknowledged that she has previously experienced memory loss after drinking. [ 34 ] Having attended Saint Mary’s University, Ms. L.W. is familiar generally with the south end of Halifax. She is not familiar with Atlantic or Brussels Streets. She did not have any friends who had lived on those streets. Ms. L.W. could not think of any reason that she would have had to visit those streets in May of 2015. [ 35 ] Ms.

L.W. was asked to discuss Exhibit 16, photocopied pictures of text messages sent and received on her iPhone just after midnight on May 22, 2015. The phone is depicted in Exhibit 3, photograph 17. The pictures were taken by a police officer, with her consent, shortly after May 23 rd . [ 36 ] There are two short conversations captured in Exhibit 16. The first is with her friend, D. Ms. L.W. used to work with D, and she made him a contact in her phone meaning that his name appears at the top of the message in the conversation.

Having a contact means that she would have been able to open the phone, go to the last conversation with D and simply click on that conversation in order to type a new message. Ms. L.W. has no memory of the following exchange: [ 37 ] The second conversation depicted in Exhibit 16 is a conversation with another contact, A. Ms. L.W. agreed with the suggestion put to her in cross-examination that the police may not have captured all of the conversation involved with the first message sent by A. Ms. L.W. has no memory of the following text communication with A: Not noted A Because I work tomorrow.

Hope you have a goodnight! Friday, 10:52pm Ms. L.W. You too 12:39am Ms. L.W. I am so drunk nobody will let me anyway 12:41am Ms. L.W. Have fun 12:52am Ms. L.W. Can you get me to ela houseb Saturday, 1:15pm A Hahah what ?! [ 38 ] As I have said, Ms. L.W. has no recollection of hailing a taxi, or having contact or conversation with Mr. Al-Rawi in the taxi. In cross-examination she testified that she has no recollection of telling him about A. She testified that she and A were friends since high

school, and in the months prior to May of 2015 they had spent some time together, on and off, as they had in prior years. Ms. L.W. agreed that on the night of May 23, 2015 one of the emotions she was feeling was sadness, attributable to A being present at the Brewery with another young lady. [ 39 ] Ms. L.W. identified her clothing and all of her belongings found in the front of the taxi and depicted in Exhibit 3. She testified that she does not recognize either of the ball caps depicted in Exhibit 3. [ 40 ] Ms.

L.W. was asked a series of questions by Crown counsel relating to what she “would have” done or how she “would have” acted in May of 2015.

Specifically: she would have not done a very good job typing on her phone when drinking, likely rushing and misspelling things; she would have sat in the back of a taxi on the passenger side, entering from whatever side the sidewalk was on; she would never have sat in the front seat of a taxi; when using a taxi and paying by cash she would have readied herself to pay the fare by getting her money ready during the course of the trip; if travelling from downtown Halifax to her home she would have paid $20.00 which would include the fare and tip; the $20.00 bill seen in the exhibits would have been in her wallet; she would have carried her purse closed, not open; she would not have consented to having her clothing removed by Mr.

Al-Rawi, nor would she have consented to engage in sexual activity with Mr. Al-Rawi. [ 41 ] In cross-examination Ms. L.W. agreed that in terms of her evidence in relation to what she would have done in relation to a taxi ride, that evidence was based upon her usual practices when sober. [ 42 ] As Ms. L.W. fairly agreed in cross-examination, the fact that she has so little memory of the events of the night of May 22 nd and 23 rd means that she has no recollection of what transpired between she and Ms. L.I or Mr. K.O. after leaving Boomers, nor of her emotional state during the key time period.

Further, she is not able to disagree with the defence theory that she flagged down Mr. Al- Rawi’s taxi near Pizza Corner, sat in the front seat wearing a New York Yankees ball cap and directed Mr. Al-Rawi to take her to the south end of Halifax. Ms. L.W. conceded that she was not in a position to recount how she was acting in terms of her emotions, nor what she did or did not say to Mr. Al-Rawi, how it was that she urinated in her pants, nor how she came to be partially naked in the rear of the taxi cab. [ 43 ] Ms.

L.W. also fairly conceded the suggestion that consuming alcohol in the quantity she had on that night would have impaired her judgement. She agreed that the quantity of alcohol she consumed that night would make her less cautious, possibly giving her liquid courage. She agreed that when under the influence of alcohol, she may behave in a way she would not if sober. [ 44 ] Ms. L.W. was responsive to all of the questions put to her, to the best of her ability. Overall Ms. L.W’s evidence is very limited in terms of my analysis of the critical time period after 1:00 a.m.

I have no doubt that she did her best to recount what memories she possesses. I have no doubt that it would have been extremely difficult to appear in a public courtroom and give evidence as she did. My task is to consider the evidence she was able to give, assess its reliability and determine what weight I should give to her evidence taking into account all of the evidence adduced at this trial. [ 45 ] The Crown called Ms. L.W.’s room-mate and long-time friend, Ms. L.I., as well as Ms. L.I.’s husband, Mr. K.O.

Their evidence is in some senses consistent with, but in other senses inconsistent with, the evidence given by Ms. L.W. And of course, they both gave evidence concerning their observations of and interaction with Ms. L.W. in relation to a time period for which Ms. L.W. has no memory. [ 46 ] Ms. L.I. described getting ready to attend the fundraiser at Keith’s Brewery, hosted by her then boyfriend Mr. K.O. She confirmed Ms. L.W.’s evidence that she had been rushed getting ready to go out and, unlike Ms. L.I., did not eat any food. At the fundraiser Ms. L.I. consumed half a beer. She recalls that Ms.

L.W. consumed two or three pint size glasses of beer. Ms. L.I. testified that she was with Ms. L.W. throughout the fundraiser and that they left the event together after helping Mr. K.O. pack up. According to Ms. L.I., when they left the fundraiser Ms. L.W. ‘wasn’t drunk’. [ 47 ] In cross-examination Ms. L.I. was asked about Ms. L.W.’s emotional state while they were at the Brewery. She testified that Ms. L.W.’s friend, A, was at the fundraiser in the company of another young lady. She described Ms. L.W. as ‘nervous’ but not upset. [ 48 ] Ms. L.I., Ms. L.W., Mr.

K.O., and a few of his friends left together and made their way to Boomers. Ms. L.I. observed Ms. L.W. as she walked ahead with others and had no concerns about her ability to walk. Ms. L.I. and her boyfriend made a brief stop at his office and upon arrival at Boomers, at approximately 11:00 p.m., met up with Ms. L.W. again. Ms. L.I. testified that they stayed at Boomers over an hour and during that time she had two mixed drinks, doubles. Over the same time period Ms. L.W. consumed two mixed drinks and two tequila shots. She did not see her eat any food. [ 49 ] Some time before midnight Ms. L.I. lost track of Ms.

L.W. and eventually found her outside just past the lineup to the bar. They sat by the window as Ms. L.I. tried to determine what was happening. Ms. L.W. was very upset, crying, saying that she didn’t understand why she could not re-enter the bar. Ms. L.I. observed that her friend was ‘drunker than she was earlier’ and was able to determine that the bouncer would not permit Ms. L.W. to re-enter. As a result, Ms. L.I. went back into the bar herself, grabbed their belongings and told Mr. K.O. they needed to leave. That took about 15 minutes. [ 50 ] At some point while Ms. L.I. and Ms.

L.W. spoke outside Boomers, Ms. L.W. said that she had to use the washroom. Ms. L.I. did not see her use the washroom at any point after that conversation. [ 51 ] When Ms. L.I. returned to Ms. L.W. outside the bar she observed her level of sobriety had changed, for the worse. She described Ms. L.W. as ‘kind of slumped over and staring off.’ She sat with Ms. L.W. while the others discussed the possibility of going to get some food. Ms. L.I. made the same suggestion to Ms. L.W. who did not agree and was persistent in saying that she wanted to continue drinking and go to a bar. Ms. L.I. described Ms.

L.W.’s speech as slurred at this time. The others left and Ms. L.I. and Mr. K.O. told Ms. L.W. that they wanted to go get some food and that if she did not want to join them, they would get a cab for her to go home. Eventually they started walking along Grafton Street towards Freeman’s and the Metro Centre. At they passed Freeman’s, Ms. L.W. squatted down on the sidewalk with her back against a brick wall. As Ms. L.I. continued to try to persuade Ms. L.W. to take a cab home,

Ms. L.W. became very angry with her friend. Mr. K.O. tried to intervene by speaking with Ms. L.W. himself. When he did so, Ms. L.I. stepped away as she felt that Ms. L.W.’s choice not to take a cab home was related to her upset and anger towards Ms. L.I. [ 52 ] Not long afterwards Mr. K.O. ran across the street towards a series of taxis outside Cheers. While he did so, Ms. L.I. approached Ms. L.W. again to try to figure out why she was mad. This caused Ms. L.W. to become more angry and by the time Mr. K.O. returned, to say that there was a cab ready to take her home, Ms. L.W. had changed her mind. Ms.

L.W. left her friends, walked along Grafton Street to Prince Street and turned the corner. Ms. L.W. walked away with speed, and Ms. L.I. inferred that she must have essentially run up the hill on Prince Street because by the time she got to Prince Street Ms. L.W. was out of sight. Ms. L.I. estimates that this was about 12:40 a.m. When she last saw Ms. L.W. she was very drunk, very emotional and in her view not capable of making good decisions. [ 53 ] Exhibit 25 is CCTV footage of Grafton Street on May 23, 2015 obtained from the video maintained by Cheers Bar. Ms.

L.I. identified three people who had been with them getting into a cab on Grafton Street at 12:24:36 a.m. and at 12:25:14 a.m., she identified herself, Ms. L.W. and Mr. K.O. walking along the sidewalk towards, and past, the doors to Freeman’s. Ms. L.I. described Ms. L.W. as walking slightly hunched but keeping up with them, that is, slower and not as erect as her normal pace. The place where Ms. L.W. squatted down on the sidewalk cannot be seen on the footage. However, at 12:28:44 a.m., Mr. K.O. is seen running across the street and apparently speaking with the driver of a cab. At 12:28:55 a.m. Mr.

K.O. is seen running back across the street to where Ms. L.I. and Ms. L.W. were located. Ms. L.I. testified that it was shortly after this that Ms. L.W. ran off from them, to the stop sign, and turned up Prince Street. [ 54 ] In cross-examination Ms. L.I. testified that on May 23, she planned to stay at Mr. K.O.’s home that night, and Ms. L.W. was aware of this. Mr. K.O. lived on South Street at that time, but Ms. L.I. does not think that Ms. L.W. knew where he lived. [ 55 ] Ms. L.I. testified that Ms. L.W. is normally a friendly person. Outside Boomers she did take Ms.

L.W. away from a gentleman with whom she was interacting. At that time Ms. L.W. was capable of walking, talking, and was coherent of thought. She felt that throughout the time between leaving Boomers and Ms. L.W. walking away from them, her friend understood what was being said to her, but simply did not agree. She described Ms. L.W.’s behaviour as frustrating, and agreed she was at that time somewhat irrational and difficult to deal with. [ 56 ] Ms. L.I. testified that Ms. L.W. was not happy with Ms. L.I.’s new relationship. Before leaving, Ms. L.W. yelled at Ms.

L.I. and said to her, amongst other things, “Go and be happy by yourself.” This was very much out of character and not something Ms. L.W. would have done when sober. Ms. L.I. has seen Ms. L.W. at this same level of intoxication during their days together at university, and Ms. L.W. has previously run off from her in the past, but only when she had been drinking. Further, it is not unusual for Ms. L.W. to cry after having consumed alcohol. Finally, Ms.

L.I. agreed that as she saw her friend walking away from her with speed, she was not concerned about her friend’s physical or mental well-being or she would have called the police. [ 57 ] Mr. K.O. testified that he had minimal contact with Ms. L.W. and Ms. L.I. at the fundraiser. He was responsible for the event in every sense and although he interacted with them, it was not until they left the Brewery that he had sustained contact with the two. He described cleaning up after the event, leaving with the group of friends, stopping briefly with Ms. L.I. at his office en route to Boomers.

He estimated their time of arrival at Boomers as 10:30 p.m. Like Ms. L.I., he recalled Ms. L.W. as not having consumed alcohol heavily at the Brewery, saying she seemed very coherent at that time. [ 58 ] Mr. K.O. recalled that at Boomers the group of friends sat together, drank, talked and danced. Mr. K.O. likely consumed beer and a couple of rum and coke. He saw Ms. L.W. and Ms. L.I. consume mixed drinks but could not be certain what they consumed. Between approximately 10:30 p.m. and 12:30 a.m., he observed that Ms. L.W. became quite intoxicated. By the time he saw her outside Boomers, as they were leaving, Ms.

L.W. was intoxicated, her speech was slurred and slow, she was argumentative with Ms. L.I. and having some trouble walking. He thought it would be best for them to call it a night and went across the street to a line of cabs in order to ask a driver to take their friend home. The cab driver agreed, however, by the time he returned to Ms. L.W. she had become argumentative again and stormed off. [ 59 ] Mr. K.O. commented upon a portion of the CCTV footage in Exhibit 25. He too identified Ms. L.W., Ms. L.I. and himself walking on the sidewalk along Grafton Street.

He also identified himself in Exhibit 26, a still image taken from the CCTV footage at the point that he crossed the street in search of a cab at 12:28:39 a.m. Mr. Al Rawi’s Activity Prior to Ms. L.W. Entering the Taxi [ 60 ] Neils Jensen has worked for Bob’s Taxi in an administrative capacity for 22 years. In May of 2015, Mr. Al-Rawi worked for Bob’s Taxi and, on May 22 nd , he was operating a car with roof light 147. [ 61 ] When a taxi is in service the administrative system generates an ‘Activity Log’ recording each call taken. Exhibit 17 was tendered through Mr. Jensen.

The document establishes the activity of the taxi driven by Mr. Al-Rawi between 9:08:34 p.m. on May 22 and the last fare which commenced at 1:08:56 a.m. on May 23. The Activity Log records when a call is sent to the driver through dispatch, when the driver picks up a fare who has flagged down the taxi, the start and end time of the trip, as well as the location of the commencement of the fare. The driver uses a Mobile Data Terminal (“MDT”) in the taxi to record the commencement of a fare. When the taxi reaches the passenger’s destination the driver inputs the arrival on the MDT and the unit records ‘Drop off’.

Mr. Jensen identified the MDT in Exhibit 3, photograph 9 just to the right of the steering wheel. The driver communicates with dispatch through a radio, seen in photograph 8 just to the right of the driver’s footwell. Should a driver need to communicate with dispatch, he or she would simply click the radio to speak. [ 62 ] The last fare recorded on May 23, 2015, commenced at 1:08:56 a.m. The “from” address is recorded via GPS as 1531 Grafton Street as the location where Mr. Al-Rawi recorded picking up a passenger who was a ‘flag’.

In relation to this fare, there is no “To address” recorded in the system via GPS when a trip is completed and the driver presses ‘Drop off’ on the MDT. Exhibit 17 establishes that the fare which commenced at 1:08:56 a.m. did not end as far as the MDT data is concerned. The data records the last entry as May

24, 2015, at 7:28:53 a.m. [ 63 ] Mr. Jensen testified that a taxi driver will carry a float, that is, a certain amount of cash in order to provide change to a fare who pays in cash. He testified that the By-Laws require only that a driver be in a position to provide change for a $20.00 bill. In his experience there are various practices in terms of the amount of cash an individual driver will carry – ranging from $50.00 to $100.00 or even as much as $500.00. The Taxi is located on Atlantic Street [ 64 ] Cst. Monia Thibault is a member of Halifax Regional Police.

On May 22, 2015, she was working the night shift in a general patrol capacity. She was in uniform, working alone in a patrol car. While she normally worked in Dartmouth, she was working an over- time shift commencing 6:00 p.m. on Friday, May 22. As a result of a completely unrelated investigation, coincidentally involving a taxicab, she was patrolling Atlantic Street at Brussels Street and at approximately 1:19 a.m. she came across a taxicab on Atlantic Street. The cab was facing west towards Saint Mary’s University.

She observed that the car was idling. [ 65 ] The reference to 1:19 a.m. as time of arrival on scene, is contained in Cst. Thibault’s notebook. She was not entirely certain when she made that notation, probably when she was in the ambulance. Cst. Thibault conceded in cross-examination that the time reference was approximate and could have been a minute or two earlier. [ 66 ] The area where the vehicle was located is a residential area. There are houses on both sides of the street and the front doors of the houses are approximately 20 feet from the street.

There is a sidewalk on the side of the road where the taxicab was located. Cst. Thibault was aware that students live in this part of Halifax. Given the time of night, the area was quiet and dark. The area is lit by streetlights and Cst. Thibault would have had her flashlight in hand as she approached the taxi. Cst. Thibault testified there was no traffic during the time that she was on scene. [ 67 ] Cst. Thibault recalled that the taxicab, a four door Honda Civic, was not parked curbside. The vehicle was parked approximately one metre away from the curb. In cross-examination, Cst.

Thibault agreed that the position of the taxicab was different from all of the other vehicles parked on Atlantic Street. The vehicle was not hidden and was not hard to find. [ 68 ] In direct examination Cst. Thibault was asked to mark on Exhibit 5, a map of Halifax, the nearby area she identified as the grain elevators. [ 69 ] Cst. Thibault parked her patrol vehicle about a car length behind the taxicab and exited her vehicle to approach the driver who we now know to be Mr. Al-Rawi. Cst. Thibault did not immediately exit her vehicle.

She contacted dispatch to advise that she had stopped, and to ask that she be ‘mapped’ as she was not familiar with the location. Given the lighting, she left the head lights of the police vehicle on as she approached the taxi. Cst. Thibault recalled that the taxi was idling but could not recall whether the lights of the taxi were on. [ 70 ] As Cst. Thibault walked towards the cab she observed that the driver had initially been turned facing the back of the cab, and then turned around.

As she approached, she took a quick look in the back window before speaking with the driver and observed a woman laying in the back seat. Cst. Thibault observed that the rear window was fogged up. [ 71 ] The following sequence of events is critical. Cst. Thibault asked Mr. Al-Rawi for his identification. As she did so, she noticed that he was fumbling with something between his side and the centre console. After Mr. Al-Rawi turned over his identification, Cst. Thibault took another look at the passenger and then observed that she was naked from the waist down and her legs were up over the back of the seats.

She told Mr. Al-Rawi to turn the car off and get out. She saw that he was fumbling with something in front of his body. She asked, what are you doing, get the fuck out of the car. The significance of this evidence is self-evident. I will deal with the key aspects of this evidence in more detail. It is this evidence which the Crown argues supports the contention that Mr. Al-Rawi was found ‘between the legs’ of Ms. L.W. [ 72 ] In direct examination Crown counsel asked Cst. Thibault to draw Ms. L.W.’s position in the taxi using a copy of photograph 15 of Exhibit 3. In red ink she drew Ms.

L.W.’s calves resting on each of the front driver and passenger seats. The diagram shows two 90- degree red lines which represent the legs, that is, above and below the knee. The diagram shows the calf area of the legs extending straight ahead towards the front of the car. This became Exhibit 6. Cst. Thibault was later asked to describe the part of Ms. L.W.’s body that was touching the front seats of the vehicle. She said, “Between her ankle – it would be her calves that were on the front seats but on the insides of the headrests.” [ 73 ] After creating Exhibit 6, Cst.

Thibault gave the following evidence in direct examination: Q. How far apart were her legs? A. Far apart enough for him to be between them. Q. Did you see Mr. Al-Rawi between them? A. Yes. Q. Okay. A. He was -- when I initially approached the cab, he was turned in his seat, facing the back of the seat, excuse me, between her legs. Q. Okay. And he was -- okay. When he was turned in the back of his seat, can you tell the court on what part of his body was his body supported? What was -- what was -- on his body, can you describe what was supporting him?

A. I -- he -- I don't -- he was turned so he was – his butt wasn't in his seat completely. [ 74 ] In cross examination, this area of the evidence was explored in some detail, including the following exchange: Q. Okay. Now, it's also correct to say that you did not physically -- you did not witness, rather, sorry, Mr. Al-Rawi physically touch [Ms. L.W.], did you? A. No. He was between her legs when I approached the vehicle. Q. Okay. But you did not see physical contact between Mr. Al-Rawi and [Ms. L.W.], did you? A. He would have been touching her legs when I saw them. Q. Okay. Okay.

But outside touching to the leg, you saw no other touching to part of -- any part of her body? A. No. Q. And when you talk about touching to her -- touching to her legs, do you mean that his shoulder was touching her legs? A. A part of his body where he was turned. So it could have been somewhere up here. … Q. Right upper arm, shoulder area? A. Yes. Q. Okay. So Mr. Al-Rawi's hands, where are they when you first approach the vehicle then? A. I don't know. Q. Okay. Is it possible that when you first approach the vehicle that Mr. Al-Rawi's hands, in fact, are actually on the gearshift and on the steering wheel? A.

When I first approached? Q. Yes. A. No. Q. Okay. But you don't know where his hands were at that time? A. No. Q. Okay. And you say that, as you approach the vehicle, Mr. Al-Rawi was positioned so he was looking into the back of the vehicle itself? A. Yes. Q. Okay. And you said in testimony that his buttocks were lifted off the seat? A. He would have been turned, so, yes, not his full buttocks would have been in the seat. … Q. How far are you away from the vehicle when you make that observation, please? A. I'm standing beside the vehicle. Like... Q. Beside the -- beside the driver's window? A.

Literally, I'm, like, at the back -- the back window, passenger -- driver's side back window, and right to the driver. It was just one fluid motion. … Q. And as you're walking towards the vehicle, that's when you see the driver looking into the back? A. Yes. Q. Turned towards the back? A. Yes. Q. Okay. You didn’t actually physically see the person's buttocks lifted off the seat, did you?

A. No, I didn't. No. Q. No. That's an assumption on your part? A. Correct. … Q. As you're walking from your patrol vehicle towards the cab, when do you first see Mr. Al-Rawi turning his body as you’ve described earlier this morning -- as you previously described this morning, sorry? A. When did I? Q. Yes. A. I wasn't right directly at the side of the cab. It was as I walking up. So when I -- as soon as I could see inside the cab, so I... … A. So the car would be at an angle to me, beside -- like, on my right side as I’m walking forward, and I would be looking in through the side, back driver’s side window.

Does that make sense? … Q. Okay. And you walk towards the vehicle, you’re looking into the rear passenger window? A. Yes. … Q. And you see a person twisted? A. Yes. Q. Okay, And they’re twisted whereby that their face is turned towards… A. The back of the vehicle. Q. The back of the vehicle. Okay. And would it be fair to say that, as you saw this person, this person isn’t – is not leaning into the back of the car, are they? A. No. [ 75 ] I make the following

summary of this evidence: • As Cst. Thibault walked from her police vehicle, parked about one car length away from the taxi, her ability to observe inside the vehicle would have been at least somewhat impaired by the fact that, as she says, the rear window was fogged up. • As Cst. Thibault approached the taxi, meaning by the time she reached the taxi and was able to look in through the rear passenger window, the driver was in his seat, turned to his right, looking into the back of the taxi. • The woman was lying with her legs up and calves over the sides of the seats beside the head rests.

According to Exhibit 6, sketched by Cst. Thibault, the woman’s calves rested on the side of the seats beside the head rests and the shins and feet were in a forward direction. • The driver was still in his seat, his butt was in the seat, but because he was turned facing the rear, his butt was not in his seat completely. • Cst. Thibault testified that the driver ‘would have’ been touching Ms. L.W.’s legs with a part of his body, which ‘could have’ been his right upper arm and shoulder area. The use of ‘would have’ is a term of inference or assumption, not an account of an actual observation. • Cst.

Thibault saw no other touching. • The driver was not leaning into the back seat. [ 76 ] Cst. Thibault testified that she saw Mr. Al-Rawi ‘between her legs’. The literal meaning of the word ‘between’ is that Cst. Thibault saw Mr. Al-Rawi’s body between the right and left calf to foot area of Ms. L.W.’s body. That is, Mr. Al-Rawi’s head and shoulder area would have been on the inside of Ms. L.W.’s left leg. This raises two questions. When Mr. Al-Rawi turned around to face the front of the car and speak with Cst. Thibault, would his head or shoulder have come into contact with Ms. L.W.’s shins? As Cst.

Thibault looked into the car to speak with Mr. Al-Rawi, should she have seen a portion of Ms. L.W.’s shins or feet to the right of Mr. Al- Rawi’s head, neck, or right shoulder? [ 77 ] To the extent that the Crown argues that Cst. Thibault’s evidence supports a finding of fact that she saw Mr. Al-Rawi ‘between her legs’ in the sexualized sense of that phrase, the evidence does not bear out that statement.

[ 78 ] Cst. Thibault testified that as she approached the taxi the rear window was fogged up. Her evidence is that no other window was foggy. Logically, her ability to see through the rear window would have been somewhat reduced. [ 79 ] When Cst. Thibault reached the driver’s door she asked Mr. Al-Rawi to produce his identification and he did so. In cross- examination she testified that what she received was Mr. Al-Rawi’s driver’s licence.

No follow up questions were asked in terms of what was done with the identification and I observe that the licence was not with the items seized and photographed by police. [ 80 ] In cross examination, Cst. Thibault was advised that Mr. Al-Rawi would testify that as she approached his left arm was resting against the driver’s side window. She said: “I can’t agree or disagree. I don’t remember. … It wouldn’t have been if he – because he was turned, so his left arm would have been on the passenger side.” Further, she was advised that Mr.

Al-Rawi would testify that his right hand was on the steering wheel or on the gear shift, and she was asked whether in her view it was possible that Mr. Al-Rawi was turned and his hands were still in front of him? She answered, “No ... The position that he -- I can’t imagine somebody being like this… I don’t see how that’s physically possible.” Again, the answer appears to be framed in inference. [ 81 ] On two significant occasions, Cst. Thibault’s evidence seemed to blend observations with facts she acquired at a later time. Firstly, when Cst. Thibault asked Mr. Al-Rawi to provide identification that (

a) she noticed him fumbling with something, versus (

b) she noticed him fumbling with the jeans, with bright blue panties and the belt in place, trying to push them in between the console at the side of him. [ 82 ] Secondly, after Cst. Thibault told Mr. Al-Rawi to turn the car off and get out, (a) “he was fumbling with something with his hands and I said what are you doing? Get the fuck out of the car”, versus Q: “Fumbling with?” A: “The shoes that were down … Q: “Okay, did you actually see the shoes in Mr. Al-Rawi’s hands?” A: “No.” Cst.

Thibault then explained that she “did not know what he was going for, fumbling with, his hands were fumbling with something.” To be clear, Cst. Thibault clarified in this exchange that she did not mean to suggest she saw Mr. Al-Rawi fumbling with the shoes. These are two examples of an aspect of this evidence which requires careful scrutiny. [ 83 ] After Mr. Al-Rawi turned over his licence, Cst.

Thibault took another look at the female passenger and this was when she realized that the female in the back seat of the taxicab was naked from the waist down, wearing only what was described as a tank top which pulled up leaving her breasts partially exposed. Although Cst. Thibault said that Ms. L.W. was wearing only a tank top, she later testified that she could not remember whether Ms. L.W. was wearing a bra. [ 84 ] Cst. Thibault observed Ms. L.W. laying on the back seat of the vehicle. Her head to her waist were lying on the seat.

Her buttocks were in the space just past the seat such that her buttocks were not supported. Her legs were up over the back of the front seats such that her calves were on the seats on the inside of the head rests. During this time the woman in the back seat of the car was not moving or speaking and her eyes were closed. [ 85 ] Cst. Thibault called for back up just before placing Mr. Al-Rawi under arrest for sexual assault. Cst. Marriott was on scene quickly. Cst. Thibault was unable to say whether she or Cst. Marriott placed the handcuffs on Mr. Al-Rawi. Cst. Marriott took custody of Mr. Al Rawi. [ 86 ] As Mr.

Al Rawi got out of the vehicle, Cst. Thibault observed that his pants were undone. She testified that the back of his pants were halfway down his back side, the zipper was undone and she could see his butt crack. [ 87 ] In cross examination, Cst. Thibault agreed that Exhibit 1, photo 1, is a fair depiction of Mr. Al-Rawi. Specifically, “in terms of the button to the jeans being undone and the zipper being down,” she confirmed, that is what she recalls Mr. Al-Rawi’s clothing looking like when he was arrested. [ 88 ] In cross-examination, Cst. Thibault was also asked about the length of Mr.

Al-Rawi’s black jacket, which would ordinarily cover Mr. Al-Rawi’s buttocks. She testified that the black jacket was not hanging down when she cuffed him to the rear as he turned to face the car. [ 89 ] Cst. Thibault then went to the rear passenger door in order to deal with the woman. Once the door was opened Cst. Thibault could smell alcohol coming from the back seat and as she dealt with Ms. L.W. she could smell alcohol coming from her breath when she spoke. She observed that Ms. L.W. was ‘passed out’ but started to ‘come to’ as Cst. Thibault placed a hand on Ms.

L.W.’s shoulder and shook her a little bit. [ 90 ] She described Ms. L.W. as initially being very confused, seemingly not aware of where she was. Cst. Thibault asked for her name and Ms. L.W. told her that her name was L. Ms. L.W, realizing her state of undress, became upset and attempted to cover herself up. When asked to provide her last name and address she did so. As she interacted with Cst. Thibault, Ms. L.W. spoke in a quiet and slow manner, with a high-pitched voice that Cst. Thibault described as sounding like a little girl. Her eyes were described as glassy and bloodshot [ 91 ] As they spoke Cst.

Thibault was able to determine Ms. L.W.’s name, her complete civic address, where she had been much earlier in the evening, who she had been with and that she remembered getting picked up by a cab at Boomers. Ms. L.W. said she did not remember anything after that. Cst. Thibault called for Emergency Health Services (EHS) to attend and attempted to calm Ms. L.W. by telling her that she was okay, that she did nothing wrong. [ 92 ] Ms. L.W. was upset and crying, and embarrassed that she was in a state of undress. Cst. Thibault permitted Ms. L.W. to reach for her pants and put them back on. Cst.

Thibault observed that Ms. L.W. was having difficulty as the pants had been inside out, so she turned them right side out and in so doing observed that the blue underwear and belt were in place on the pants and the pants were noticeably wet in the crotch area. Cst. Thibault concluded that Ms. L.W. had urinated herself. [ 93 ] EHS arrived on scene. Cst. Thibault does not remember how Ms. L.W. got from the taxi to the ambulance. She recalls that she rode with her in the ambulance to the QEII hospital. Prior to leaving the scene, Cst. Thibault located and opened Ms. L.W.’s wallet to

retrieve identification and a health card, returning the wallet to the place where she found it. [ 94 ] Overall, Cst. Thibault was responsive to all of the questions posed to her. It was clear, and not surprising, that the passage of time had an impact on the reliability of her evidence. The challenge to her evidence did not relate to her credibility. With this in mind, I must carefully consider the weight to be given to Cst. Thibault’s evidence. [ 95 ] Cst. Jason Marriott was working in the south end when he heard Cst. Thibault advise over the air that she was with a taxi at Atlantic and Brussels.

He testified that her call aired at approximately 1:20 a.m. and he responded within a minute or two as he was only a few blocks away. He arrived and parked behind Cst. Thibault’s vehicle. He described the taxi as having been parked curb side ‘just up from the actual intersection’ of Atlantic and Brussels Streets. He described the taxi as in plain view. He confirmed Cst.

Thibault’s evidence that the houses on the residential street looked over Atlantic Street, and that if one were upstairs in one of these homes you would be able to see down to the street. [ 96 ] As he approached the taxi, he saw a male exit the taxi. Cst. Thibault advised him that the male was under arrest for sexual assault. He assisted her with handcuffing the male and he performed the search incidental to arrest and an officer safety pat down search. In doing so, he observed that Mr. Al-Rawi’s zipper was down two to three inches and that his pants were probably down three to four inches such that Mr.

Al-Rawi’s bare buttocks were exposed. [ 97 ] In cross-examination, Cst. Marriott was asked whether he could remember the condition of Mr. Al-Rawi’s black jacket. Cst. Marriott could not recall whether the zipper on the jacket was open or closed, but he conceded that it was possible that he may have opened the zipper in order to conduct the search incidental to arrest. He agreed that he would have searched the waist band of the jeans during the pat down. Cst. Marriott identified Exhibit 1, photographs 1 and 2, as being similar to the condition in which he found Mr.

Al- Rawi. [ 98 ] As he first approached the taxi, Cst. Marriott observed a set of bare-skinned legs between the front driver and passenger seats. As he looked further, he noted a female, half naked from the torso down, with her shirt pulled up towards her upper body. He described the woman’s upper torso in the rear of the taxi with her head near the rear passenger door. He testified that her body was turned towards the centre console with buttocks suspended between the rear seat and the centre console, and her legs towards the front between the front driver and passenger seats.

He believed that she was wearing a dark coloured T-shirt which was pulled up towards her neck. Cst. Marriott testified that he did not see any movement, nor did he hear the woman speak. He could not recall whether her eyes were open or closed. [ 99 ] In cross-examination Cst. Marriott was provided with a copy of photograph 9 of Exhibit 3 and asked to draw the position of Ms. L.W.’s legs when he looked into the taxi. This photograph became Exhibit 9. It depicts Ms. L.W.’s legs on the console between the front driver and passenger seats. [ 100 ] After assisting Cst.

Thibault with the arrest and pat down search, Cst. Marriott took Mr. Al-Rawi back to his marked police vehicle. He placed him in the rear of the vehicle, read the standard Charter and police caution to Mr. Al-Rawi. He was present when an ambulance arrived and remained on scene with Mr. Al-Rawi until the towing company arrived to take Mr. Al-Rawi’s vehicle to Halifax Regional Police lockup. [ 101 ] Cst. Marriott testified that Mr. Al-Rawi was at all times handcuffed to the rear. Once arriving at Halifax Regional Police Headquarters, he took Mr. Al-Rawi to an interview room. He remained in control of Mr.

Al-Rawi until 4:30 a.m. when D/Cst. Hewitt of the Forensic Ident team arrived. Cst. Marriott was present while D/Cst. Hewitt conducted his forensic examination and photographed Mr. Al-Rawi. Not long afterwards, officers from Major Crime arrived and Cst. Marriott’s involvement ended. Throughout, in order to preserve any potential evidence, Mr. Al-Rawi was not permitted to drink or eat anything, nor was he permitted to use the washroom. On two occasions, for a few seconds each time, Cst. Marriott added a second set of handcuffs to allow Mr. Al-Rawi to move his arms and reduce the strain on his shoulders. Ms. L.W.

Is Taken To The Hospital [ 102 ] Cst. Thibault testified that the ambulance trip was just a few minutes. She recalled Ms. L.W.’s emotional state continued to be ‘up and down’, meaning at times calm, at times crying. Her manner of speech remained the same. Ms. L.W. was awake during this trip. Ms. L.W. was brought into the hospital on a stretcher. They spoke off and on. [ 103 ] During the time at the hospital Cst. Thibault observed that Ms. L.W. would every now and then close her eyes, rest, then wake up. Cst. Thibault became aware that Ms.

L.W. urinated in her pants again while on the stretcher in a hall at the hospital. She was not certain how she learned that fact. Cst. Thibault recalled that Ms. L.W. was placed in a room and that two Sexual Assault Nurse Examiners arrived at hospital at 2:55 a.m. [ 104 ] Ruth Campbell is a nurse who worked as a Sexual Assault Nurse Examiner for about two years commencing in April of 2014. In May of 2015 her full-time position was at the IWK, and she worked on-call as a Sexual Assault Nurse Examiner.

The role of a nurse working in this capacity is to meet with individuals who report having been sexually assaulted in order to provide information as to options, and when requested, perform an examination and forensic evidence collection. Ms. Campbell described the forensic protocol used to collect evidence and turn it over to police. [ 105 ] On May 23, 2015, Ms. Campbell was called shortly before 2:00 a.m., travelled to the QEII hospital where she met with the second on-call Sexual Assault Nurse Examiner, Annette MacDonald, before meeting with Ms. L.W. and Cst. Mews at 2:45 a.m.

Between that time and approximately 6:00 a.m., Ms. L.W. was examined, and evidence gathered. Ms. L.W.’s clothing was seized; she was physically examined from head-to-toe and blood samples were taken. No injuries were observed. The physical examination included using a forensically designed comb on the pubic hair, and swabs were taken from Ms. L.W.’s lips, vagina, anus and rectum, all of which were intended to capture DNA and/or semen present on Ms. L.W.’s body. [ 106 ] Ms. Campbell testified that she noted Ms. L.W. to be calm, but teary-eyed at times. She recorded times in relation to the taking of

samples. In relation to the blood sample she recorded the sample as having been taken at 3:50 a.m. Ms. Campbell also noted that the clothing they seized was damp. In terms of examining Ms. L.W., she confirmed that the examination was done head to toe looking for any injuries, bruising, or scratches. No injuries were noted. An alternate light source was used to examine the body in search of any biological fluids that cannot be seen by the naked eye. No other foreign material was found on Ms. L.W.’s body, meaning no fibres, loose hairs, or semen-like material. [ 107 ] In direct examination, Ms.

Campbell’s evidence appeared somewhat stilted and vague. Rather than specifically accounting for the events of May 23 rd , she placed great reliance upon a review she had made of certain notes and the presence of her handwriting on certain of the labels found on exhibits seized. The final question put to her in direct examination informs the tenor of her evidence. She was asked whether she had any independent recollection of Ms. L.W. on May 23, 2015. The answer was no. Having said that, there is no suggestions that the process followed by nurses Campbell and MacDonald was in any way faulty.

It is simply that the evidence is very limited in terms of detail. [ 108 ] In all of the circumstances it would seem reasonable to infer that Ms. Campbell executed her functions in accord with the standard expected of a reasonably competent nurse trained in this specialized field. What flows is that Ms. Campbell felt that Ms. L.W. was sufficiently sober and communicative to conduct the examination as described. [ 109 ] Cst. Shelly-Lee Mews is a member of the RCMP. On May 23, 2015, she was a member of the Integrated Sexual Assault Team. She was present when nurses Campbell and MacDonald examined Ms. L.W. Cst.

Mews seized the clothing, blood samples and swabs for further examination. In relation to the clothing, Cst. Mews understood that the clothing was damp and therefore would require that she alert the Ident

section that the clothing would need to be dried before being stored. She subsequently met with Cst. Furlong of the Ident

Section and turned the clothing over to him at 9:23 a.m. Cst. Mews did not alter or manipulate the evidence received in any way. [ 110 ] On January 3, 2019, D/Cst. Randy Wood of the Forensic Identification

Section first became involved in this matter. He was asked to photograph the clothing seized from Ms. L.W. on May 23, 2015. Those photographs are found in Exhibit 7. D/Cst. Wood received a plastic bag containing black jeans with a black belt in the belt loops. The jeans were inside out. He photographed them as received and then turned them right side out, again photographing the pants. He also photographed a front clasp bra, and a coral top, which was also inside out. [ 111 ] On January 4, 2019, D/Cst. Wood was asked to photograph another piece of property: a pair of blue underwear.

The underwear bore markings familiar to him as those which result from RCMP lab examination. He was also asked to take more photographs of the black jeans, specifically the belt and the belt loops. [ 112 ] Through D/Cst. Wood the Crown tendered Exhibits 11 through 14, Ms. L.W.’s clothing. The clothing had been stored in plastic bags. As he completed his work, D/Cst. Wood transferred the items to paper bags in accord with his view of best practices in storing items of dry clothing. In cross-examination D/Cst.

Wood confirmed that there was no damage to the belt loops on the jeans, nor to the button or zipper on the jeans. Similarly, there was no damage to the clasp of the bra. [ 113 ] In direct examination Ms. L.W. was asked to look at the belt. She described it as quite worn as of May 23, 2015. She recalled that the belt was worn where she would have customarily notched the belt. Ms. L.W.’s Level of Impairment [ 114 ] Dr. Tracy Cherlet is employed by the Royal Canadian Mounted Police as a forensic toxicologist.

She is qualified to give expert evidence in four areas: the physiology of alcohol with respect to the absorption, distribution and elimination of alcohol from the body; the pharmacology of alcohol as it relates to the effects of alcohol on the human body; the retrograde and anterograde estimates of blood alcohol concentrations and the analysis of biological fluids for alcohol and drugs. [ 115 ] Dr. Cherlet was tasked with analysis of the blood and urine samples collected from Ms. L.W. on May 23, 2015. The results of her analysis are found in Exhibit 19, her report dated December 7, 2015. Dr.

Cherlet conducted a full drug analysis screen as well as blood alcohol concentration analysis. The drug screen was negative for psychoactive drugs. The results of the urine sample in terms of blood alcohol concentration are not relied upon as the blood analysis is a more reliable measure. [ 116 ] During the course of the trial, as is often the case, the sequence of witnesses did not unfold as predicted. Dr. Cherlet travelled to Halifax during the originally scheduled four-day trial in January, that is, in advance of the evidence of nurse Campbell as to when the blood samples were taken.

Due to uncertainty as to the handwriting on the exhibit, Crown counsel framed questions to Dr. Cherlet in relation to both 3:30 and 3:50 a.m. Ruth Campbell’s evidence establishes that the blood sample was taken at 3:50 a.m. I rely upon Dr. Cherlet’s evidence accordingly. [ 117 ] Dr. Cherlet testified generally as to the effects of alcohol on the human body. Alcohol is a central nervous system depressant, meaning that it slows down the activity of the brain and motor coordination.

The effects of alcohol are progressive as the blood alcohol concentration rises. [ 118 ] A low blood alcohol concentration, meaning up to 150 milligrams percent, is associated with talkativeness, sociability, euphoria, and muscle relaxation. There is deterioration in mental functioning such as judgement, attention, perception and comprehension. There is an increase in risk-taking behaviour and in self-confidence. [ 119 ] At a blood alcohol concentration of 150 milligrams percent, the effects of alcohol become more numerous and pronounced. The signs of intoxication become apparent.

The individual may display gross motor incoordination, meaning slurred speech, staggering gait, motor incoordination and emotional disturbances. Intoxication is an advanced state of impairment such that the outward physical signs of the deteriorating effects of alcohol become apparent. [ 120 ] A blood alcohol concentration of 250 milligrams percent is associated with severe intoxication, meaning marked muscular incoordination, an inability to stand or walk, as well as feelings of apathy and ataxia, meaning loss of motor control. There may also be

exaggerated emotional states as well as incontinence or loss of consciousness. [ 121 ] Dr. Cherlet testified that the interaction between alcohol consumption and memory deficit is complex. The term blackout refers to a period of time in which an individual cannot recall events that occurred while that individual was intoxicated. An individual who is experiencing a blackout may not have any observable signs that they are experiencing a blackout. The individual will be conscious and cognitively aware, responding appropriately to others.

Outwardly they would participate in activities and conversations, but later not recall what they said or did. [ 122 ] There are two types of blackouts, en bloc and fragmentary. An en bloc blackout refers to the fact that the individual cannot recall any events that occurred while they were intoxicated. Fragmentary blackouts refer to the fact that the individual can remember parts of an event but they are not able to recall the entire event.

Fragmentary blackouts are more commonly associated with alcohol consumption than en bloc blackouts. [ 123 ] While more commonly associated with higher blood alcohol concentration, meaning greater than 200 mgs percent, and with individuals who experience a rapidly rising blood alcohol concentration, there is no blood alcohol concentration that can be firmly associated with a blackout occurring. It is not possible to predict when a blackout will occur. [ 124 ] Dr.

Cherlet also explained that tolerance can develop not only across a pattern of drinking alcohol, but also there is a tolerance that develops in a single drinking session, referred to as acute tolerance or the Mellanby effect. [ 125 ] Analysis of the blood sample establishes Ms. L.W.’s blood alcohol concentration as 201 milligrams of alcohol in 100 millilitres of blood. Dr. Cherlet was asked to extrapolate that reading back to 1:19 a.m. and opine as to Ms. L.W.’s blood alcohol concentration at that time.

She performed this calculation by considering the time lapse from the time the sample was taken back to 1:19 a.m. and applying the accepted elimination rate of between 10 and 20 milligrams percent per hour. Dr. Cherlet calculated Ms. L.W.’s estimated blood alcohol concentration as between 226 and 251. The calculation is based upon certain assumptions including that the peak blood alcohol concentration was achieved before 1:19 a.m. and that no alcohol was consumed between 1:19 and 3:50 a.m. [ 126 ] A range is used to reflect the variation between 10 and 20 percent elimination rates.

This range is scientifically sound and it operates independent of age, gender, race, weight or height of the individual. In other words, the range encompasses the vast majority of the human population. [ 127 ] I have some concern that one of the underlying assumptions was not proven. The evidence clearly establishes that no alcohol was consumed after 1:19 a.m. The question relates to the issue of whether the peak blood alcohol concentration had been achieved at, or prior to, 1:19 a.m. has been established given the absence of evidence as to Ms.

L.W.’s activity between 12:30 a.m. and 1:09 a.m. [ 128 ] As a qualified expert witness, Dr. Cherlet was asked to give opinion evidence concerning a very lengthy and detailed hypothetical scenario. This is of course permissible, and so long as the foundation of the hypothetical scenario is proven in evidence, I may rely upon Dr. Cherlet’s opinion as to Ms. L.W.’s level of impairment during the time she was in Mr. Al-Rawi’s presence. [ 129 ] Briefly, the hypothetical framed by Crown counsel related to Ms.

L.W.’s age and size; drinking history five to six years prior to the event; lack of food and quantum of alcohol consumed; and her condition when discovered by Cst. Thibault in the taxi. Dr. Cherlet opined that the hypothetical person described by Crown counsel was severely intoxicated. Again, I have some question as to whether the underlying facts in the scenario were proven. For instance, that five beer were consumed between 8:00 p.m. and 10:00 p.m.; that the evidence establishes “unconscious” and “loss of bladder control” in the way in which Dr.

Cherlet defined those terms; and the impact upon the opinion of the possibility that more alcohol was consumed between 12:30 a.m. and 1:09 a.m. [ 130 ] Dr. Cherlet’s evidence is helpful in understanding the effects of alcohol on the human body, in assessing the evidence as to Ms. L.W.’s physical and emotional condition over the course of the evening and understanding her inability to recall most of the evening. My reluctance to place unquestioned weight upon the evidence concerning the hypothetical has in my view, little consequence. [ 131 ] Dr. Cherlet’s evidence explains why it is that Ms.

L.W.’s interaction with her friends was so out of character and why she does not recall that interaction, or how she came to be in the taxi. It explains the observations of others, including all of the signs of intoxication associated with readings above 150 milligrams percent. Further, Dr. Cherlet’s evidence, anchored in the results of the analysis of blood alcohol content, which I observe was not challenged, and her ability to extrapolate that reading to the critical events around 1:19 a.m., provide a basis to assess the likely state of Ms. L.W.’s physical, emotional and cognitive abilities at that time.

This is relevant to my assessment of proof of the mens rea , but it also assists me in assessing the direct evidence in relation to Ms. L.W.’s behaviour and comportment throughout the events. Of course, this includes my assessment of Mr. Al-Rawi’s evidence. The DNA Evidence [ 132 ] Martin Westecott is a forensic biologist who was qualified to give opinion evidence in the field of body fluid identification, DNA analysis, and the use of statistics as they apply to forensics.

He is employed as a Supervisor and Forensic Biologist with Maxxam, a company used by the RCMP Forensic Lab Service to perform forensic work as the need arises. Mr. Westecott received certain exhibits seized from or in relation to Ms. L.W., and others from Mr. Al-Rawi. He was tasked with looking for body fluid, blood, semen, saliva and, if present, to have the sample(

s) sent for DNA analysis. In fact, he was asked to analyze certain exhibits on three occasions – those results are contained in Exhibits 21, 22 and 23. [ 133 ] The method by which the DNA analysis was conducted and the calculations in relation to the DNA discovered, are not in issue. It is readily understood that a DNA profile can be generated from a suitable sample of bodily fluid or biological material. Mr. Westecott offers his opinion in relation to the DNA profiles belonging to Ms. L.W. and Mr. Al-Rawi as follows: • A known sample from Ms.

L.W. was used to generate a DNA profile. • A sample taken from the penile swab was used to develop a DNA profile of Mr. Al-Rawi. Further, a blood sample taken from Mr.

Al-Rawi on January 21, 2016, confirmed the former as Mr. Al-Rawi’s DNA. • Ms. L.W.’s underwear were examined for the presence of semen – none identified. • Swabs taken from the sexual assault kit, specifically the oral swab, vaginal swab and a rectal swab were examined for the presence of semen – none identified. • The swabs taken from Mr. Al-Rawi’s right and left fingers contain DNA profiles from at least three and four individuals respectively. These complex mixtures of DNA are not suitable for comparison purposes. Speaking plainly, Mr.

Westecott cannot say whether any of the DNA profiles from the swabs are from Ms. L.W. • The swab taken from the area around Mr. Al-Rawi’s lips generated DNA profiles from Mr. Al-Rawi and Ms. L.W. There was approximately two times more female DNA than male DNA. The probability of randomly selecting an individual from the Caucasian population who is unrelated to Ms. L.W. is estimated to be 1 in 210 billion. [ 134 ] In cross-examination Mr. Westecott was asked to clarify the latter finding. He testified that his findings establish the presence of the DNA profile only.

He cannot say how or when the DNA was deposited to the lip area. He cannot identify the source of the DNA, other than to say that it was not blood. [ 135 ] Mr. Westecott testified that DNA can be found in urine. It is a difficult fluid to use for DNA purposes as there is a large volume of fluid with usually very little cellular material, barring things like blood or white blood cells from an infection. White blood cells are the source of DNA in our blood, and, when one has an infection white blood cells are present, it is easier to generate a DNA profile. [ 136 ] Mr.

Westecott also testified as to the means by which DNA may be transferred from one person to another. He explained that the transfer of an individual’s DNA to an item or a person is called primary transfer. Secondary transfer occurs where a second individual comes into contact with the DNA deposited on that item or person. Transfer can occur by spitting, sneezing, coughing or kissing as saliva is a bodily fluid in which DNA can be present. DNA is also present in human tears, but in a very limited quantity. DNA is present in human skin cells.

Accordingly, DNA can be transferred when shaking hands, or by hugging where two faces come in contact with each other. Further, DNA can be transferred to clothing worn by an individual or to footwear such as sandals. However, with respect to the latter he opined that the presence of dirt could negatively impact the process. [ 137 ] In cross-examination Mr. Westecott was asked a series of questions directly relevant to Mr. Al-Rawi’s testimony. If an individual kisses another person, DNA may transfer from one to the other individual by way of saliva.

If the recipient were to wipe their face with the back of their hand it is possible that, with enough DNA deposited during the initial transfer, the donor DNA could spread across the recipient’s face. If the donor also transferred tears to the recipient, it is possible that DNA from the tears could transfer across the recipient’s face. This latter possibility is impacted by the fact that tears are not a great source of DNA. If the donor’s face rubbed against the face of the recipient during a kiss, DNA in the skin cells could transfer from donor to recipient.

Finally, if the donor touches an item which is then touched by the recipient, DNA from the donor can be transferred to the recipient. The possibility of transfer in the latter scenario depends upon the quantity of DNA transferred by the donor in the first instance. Mr. Al-Rawi’s Condition Upon Police Arrival [ 138 ] On May 23, 2015, D/Cst. Marshall Hewitt was the Halifax Regional Police on-call Forensic Ident Officer called in to assist in the investigation. He arrived at headquarters at approximately 4:30 a.m. and was briefed by Cst. Marriott who led him to Mr.

Al-Rawi who was alone in a locked interview room, his hands cuffed behind his back. D/Cst. Hewitt’s forensic examination involved photographing Mr. Al-Rawi and conducting a forensic examination of Mr. Al-Rawi’s person and clothing. [ 139 ] Exhibit 1 contains two photographs, at pages 1 and 2, the only images of Mr. Al-Rawi on the night in question depicting his clothing and deportment. These photographs were taken at approximately 4:40 a.m. D/Cst. Hewitt also seized all of Mr. Al-Rawi’s clothing – his jacket, t-shirt, jeans and underwear.

Much later, on July 9, 2015, he photographed the clothing seen in Exhibit 1, at photographs 3-8. [ 140 ] Exhibit 1, photograph 1, depicts Mr. Al-Rawi’s clothing. In particular, the button of his jeans, his t-shirt which is seen tucked into his jeans, and the black sweater, or fleece, which is not zippered up and is somewhat pulled back as a result of the fact that Mr. Al- Rawi’s hands are cuffed behind his back. Photograph 2 is a close up of the waist band, button and zipper to the jeans. In direct examination, D/Cst. Hewitt testified that he did not touch Mr.

Al-Rawi’s clothing in advance of taking these two photographs. D/Cst. Hewitt conceded that he did not inspect Mr. Al-Rawi’s clothing, rather he directed him to stand in the corner of the interview room where the full body photograph was taken. He conceded that the photograph makes it difficult to see how Mr. Al-Rawi’s black jacket falls as it appears to be pulled back by his arms cuffed to the rear. [ 141 ] Mr. Al-Rawi was not wearing a belt in his jeans. D/Cst. Hewitt testified that the jeans seemed to be holding themselves up on Mr. Al-Rawi’s waist. In pulling down the jeans to take the penile swab, D/Cst.

Hewitt observed that the jeans appeared to fit Mr. Al- Rawi properly, however when pressed he conceded that he could not actually remember whether he had trouble pulling them down. [ 142 ] Given the nature of the investigation D/Cst. Hewitt determined that he should conduct a search for foreig

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