Al-Rawi: The Value of Circumstantial Evidence in Sexual Assault Cases
Warning: The following analysis contains graphic descriptions of sexual violence.
In evidence law, a distinction can be made between direct evidence and circumstantial evidence.1 Direct evidence presents a precise fact by a witness.2 However, the facts in issue sometimes rely on the proof of other facts, which is referred to as circumstantial evidence.3 Although a distinction can be made between the two, neither is more admissible than the other.4 This can create issues for triers of fact because circumstantial evidence is based on inferences which do not appear as a concrete precise fact. Interpretation of circumstantial evidence is often a subject of debate, as demonstrated in the sexual assault case R v Al-Rawi.5 This is a Nova Scotia Court of Appeal case that was appealed for several issues. The prominent issue for the purpose of this analysis is: “The Provincial Court Judge erred in law in holding the Crown had adduced no evidence of lack of consent on the part of the complainant.”6
At trial, the respondent, Mr. Al-Rawi, was acquitted on the charges of sexual assault after the trial judge concluded there was “no evidence” to support lack of consent.7 The complainant was intoxicated. She consumed five glasses of beer over the course of two hours, then went to a bar where she consumed two shots of tequila and a mixed drink. She was later barred from the establishment and proceeded to take a taxi home. The only thing the complainant can recall after the drinks at the establishment was speaking to the police officer. The complainant was found by the police eleven minutes after she entered the taxi. The area the taxi was found in an area that the taxi was found in was unfamiliar to the complainant and on the opposite side of the city from where she resided. She was naked from the chest down and unconscious; her belongings were no longer in the backseat with her; and her legs were propped on the front seats with Mr. Al-Rawi between them. Mr. Al-Rawi was witnessed with his zipper down; his pants six to eight inches down; and he was attempting to hide the pants and underwear in which the complainant had urinated. Her DNA was found around his mouth. After accepting this and other circumstantial evidence as fact, the trial judge found that there was “no evidence” to support lack of consent.8
The Nova Scotia Court of Appeal recognized the statement repeated three times by the trial judge that there was “no evidence,” was problematic when determining whether or not there was consent.9 Generally, two main considerations regarding consent have been established that relate to the facts of this case. There can be no consent where the complainant was unconscious 10 or incapable of recognizing they could choose to decline to participate.11 The Court of Appeal concluded that there were at least sixteen facts accepted by the trial judge that would constitute ample circumstantial evidence that the complainant did not consent voluntarily or was unable to do so because of incapacity due to intoxication.12 For this reason the Nova Scotia Court of Appeal was satisfied that the trial judge erred in law on the basis that “the trial judge’s failure to consider all of the evidence in relation to the ultimate issue of guilt or innocence is an error of law,” and ordered a new trial.13
The trial judge disregarded a significant amount of circumstantial evidence which should have been considered. The evidence was uncontested by the trial judge meaning it should have been assessed in totality.14 There are difficulties where the complainant lacks memory due to alcohol and cannot give direct evidence to show they subjectively did not consent; however, in these circumstances a trier of fact must rely on the circumstantial evidence for lack of consent.15 It appears the trial judge was in search of direct evidence that there was no consent. Direct evidence is not reality for some sexual assault cases, particularly where drugs and alcohol are a factor.
The order of the Nova Scotia Court of Appeal for a new trial is a step forward in Canadian jurisprudence. Issues in sexual assault cases are frequently contested and lines are often blurred as to what is evidence and what is not evidence. This case has provided a clear demonstration that inferences are to be drawn from circumstantial evidence, and from there the trier of fact can determine whether there is a reasonable doubt.16 The absence of direct evidence is not sufficient to find there is “no evidence.” Accepting that circumstantial evidence is to be weighed in totality does not suggest that Mr. Al-Rawi is guilty; however, it must be considered in determining whether or not Mr. Al-Rawi is guilty beyond reasonable doubt. This case emphasized the importance of trial judge’s gatekeeper role in determining what inferences can be fairly drawn from circumstantial evidence regarding lack of consent.
While the Nova Scotia Court of Appeal’s holding in this case to have a new trial does not alter the laws surrounding what constitutes consent, this case has the potential to have a profound effect on the application of the law and a more careful interpretation of circumstantial evidence. While it is not binding on jurisdictions outside Nova Scotia, it is persuasive in that it is a Court of Appeal decision, and it may influence the interpretation of circumstantial evidence throughout Canada. This case is a step forward for sexual assault jurisprudence in Atlantic Canada and throughout Canada and has the potential to reshape the foundation of evidence in sexual assault cases.
1 Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada Inc, 2018) at para 2.84.
2 Commonwealth v Webster cited in Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada Inc, 2018) at para 2.87.
3 Sopinka, Lederman & Bryant, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis Canada Inc, 2018) at para 2.85.
4 John v R (1971), SCR 781, 15 DLR (3d) 692.
5 R v Al-Rawi, 2018 NSCA 10
6 Ibid at para 14.
7 Ibid at para 8.
8 Ibid at para 77.
9 Ibid at para 89.
10 R v JA, 2011 SCC 28.
11 R v Dennison (2002), 208 NSR (2d) 230 (SC).
12 Supra at note 5 at para 94.
13 R v JMH, 2011 SCC 45.
14 Supra at note 5 at para 95.
15 Supra at note 5 at para 69.
16Supra at note 5 at para 72.