Canada judge's 'a drunk can consent' ruling stirs debate
- Author: Leroy Wright Mar 06, 2017,
Mar 06, 2017, 3:16
Sheehy was responding to the many thorny questions of law - and howls of public outrage - that have arisen since a Halifax taxi driver was found not guilty Wednesday of sexually assaulting a young woman found drunk, unconscious and partially naked in his cab.
Kim Stanton, legal director at the Toronto-based Women's Legal Education and Action Fund, said consent is a key factor in such cases, but so is the victim's level of incapacity.
She also argues the judge's comments on consent go too far, and that a judicial council should consider "at a minimum" whether he should continue to hear sexual assault cases.
Pietsch said the problem isn't Canada's sexual assault laws, it's the way they are being interpreted. That's our standard of consent. Consent must be affirmative and ongoing.
An appeal of the case would shine a spotlight on the issue and help to ensure that interpretation of consent is being applied evenly in courtrooms across the country.
"That's why so few women report their sexual assaults to police in the first place". And in the absence of evidence that she had refused, he acquitted taxi driver Bassam Al-Rawi of sexual assault.
"We want an inquiry for his fitness for the position he holds, " she said during an interview.
As for amending the Criminal Code to better reflect society's changing standards, MacKay said that would be fraught with difficulty. Those who can not attend have been encouraged to call Judge Lenehan's office and write letters of complaint to the Canadian Judicial Council.
Official complaints regarding Lenehan's ruling in Al-Rawi's case have been filed, however it is unclear how many complaints the Nova Scotia Chief Justice's Office has received to date. Feeling unsafe and left without justice, women in Halifax are already organizing to drive one another around by using a hashtag.
At Snelgrove's trial, she testified the night ended with her passing out - then waking up as Snelgrove was having sex with her.
Again, a vulnerable woman can not consent.
Asked about the Halifax ruling in Vancouver on Friday, Prime Minister Justin Trudeau said he wouldn't comment on any specific case, but noted he has said many times that sexual assault survivors should get a fair hearing from a judicial system that will give assailants "real consequences".
An extremely drunk woman can not consent to sex.
"Where is the line between capacity and incapacity when it comes to consent?" asked Elizabeth Sheehy, a law professor at the University of Ottawa. "There certainly seems to be a lot of circumstantial evidence that the person was likely not capable of consenting, but not any absolute proof that that was the case". "That's the other element that links these two and makes them problematic". That drunk women deserve what they get. She told the court that the next thing she remembered was waking up in either the hospital or an ambulance, where she spoke with a female police officer.
In addition, the court heard evidence that Al-Rawi's trousers were undone around his waist and his zipper was down. In his decision, Lenehan said that there was no way to prove beyond a reasonable doubt what happened in the taxi. "It's our lives that he is making decisions about".
"The law says you can not obtain valid consent from someone who is incapable of consent", says Elizabeth Sheehy, a law professor at University of Ottawa and an expert in sexual assault law.
She was unconscious and naked from the chest down. While the judge acknowledges the moral obligation that the driver had to deliver the complainant home safely, he demonstrates a clear lack of knowledge on consent. The woman's wallet, purse and shoes were in the front passenger area, and her trousers and underwear were tangled inside out and wet with her urine, court heard. As well, his trousers were undone around his waist and his zipper was down.
Mr al-Rawi was also found semi-clothed.
Still, he declared, it was impossible to know if the woman, whose blood alcohol level was around.2, had consented to sex prior to losing consciousness.
In a statement on Thursday, the Halifax taxi company previously employing the driver said Al-Rawi has not worked for them since he was arrested in 2015. His licence was banned from operation in September 2015 after he failed to provide the name of the business he was working for.