The Al-Rawi Appeal & The Role of Circumstantial Evidence for Assessing Capacity to Consent in Se
NB: This post contains sexual violence
Sexual assault is a topic that has been extremely prevalent in the media and has proven to be a challenge for the Canadian justice system in many ways. In sexual assault cases, the burden is on the Crown to prove that the complainant did not consent to the sexual activity in question. Unlike other types of crime, sexual assault cases often lack witnesses, making circumstantial evidence an extremely important part of the investigation. While direct evidence is based on a witness’s personal account of the event, circumstantial evidence involves putting together pieces of information to draw inferences about what happened.<1>
A recent decision at the Nova Scotia Court of Appeal, R v Al-Rawi<2>, demonstrates the importance of circumstantial evidence and shows how it is to be used to help judges draw inferences for determining whether or not the complainant consented to sexual activity. While much of evidence case law focuses on admissibility of evidence, this case speaks to the manner in which the judge should deal with the evidence that is presented and highlights the difficulties that arise when dealing with sexual assault evidence.
Facts at Trial
On May 22, 2015, after being refused re-entry into a bar due to intoxication, the complainant was picked up by the respondent taxi driver outside of a bar in downtown Halifax. Eleven minutes after the complainant was picked up, police came across the respondent’s parked taxi which was the opposite direction of the complainant’s house or any place she recognized. The complainant was in the back seat, naked from the waist down, with her shirt pulled up exposing her breasts. She was unconscious and her legs were propped over the front seats. Her pants were soaked in urine. The respondent taxi driver was turned in his seat between the complainant’s open legs, with his zipper and pants part-way down. The respondent was charged with sexual assault. The trial judge held that although the respondent did touch the complainant in a sexual manner, there was “no evidence” of lack of consent or lack of capacity to consent, and the respondent was acquitted. This case caused public outrage after Judge Lenehan stated that “clearly, a drunk can consent”.
At the Appeal
On appeal, the Crown argued that while Judge Lenehan was technically correct that a drunk has the ability to consent, a person who is intoxicated to the point of being unconscious does not. The acquittal was vacated and a new trial was ordered. Beveridge, J.A. found that the trial judge erred in determining that there was “no evidence” of lack of consent, as he failed to consider the large body of circumstantial evidence which may have demonstrated that the complainant lacked the capacity to consent. Some of the circumstantial evidence included information such as the complainant’s blood alcohol level, the fact that the complainant was unconscious when police arrived, the complainant having no memory of the taxi ride, and the physical position the respondent was found in by police. The appeal court noted that assessing capacity is a difficult issue, as the Supreme Court does not have a standard test used to determine incapacity to consent. McLachlin, C.J. wrote for the majority in R v J.A., that “parliament intended consent to mean the conscious consent of an operating mind”.<3> The job, then, of the trial judge is to consider all of the evidence in order to determine whether or not the complainant had the capacity to consent. The Al-Rawi appeal found that the trial judge had overlooked this crucial aspect of his analysis.
What does the outcome of R v Al-Rawi add to Canadian evidence jurisprudence?
The Al-Rawi case highlights the many issues regarding evidence in sexual assault cases and demonstrates the important role that circumstantial evidence plays in these cases. While much of the case law in evidence focuses on specific rules for admissibility, the Al-Rawi decision demonstrates the importance of the trial judge taking all admissible evidence into consideration when attempting to determine whether or not the complainant consented to, or had the capacity to consent to sexual activity. While individual pieces of circumstantial evidence alone may not be enough to demonstrate lack of consent, it is the judge’s job to analyze the circumstantial evidence as a whole and draw inferences based on the facts that are available. Sexual assault cases often devolve into a case of “he said, she said”, and circumstantial evidence often works as a missing link to help determine which side is more plausible. Despite the negative media attention garnered by Judge Lenehan’s comment about a drunk being able to consent, it opened up an interesting dialogue with the public surrounding alcohol/drugs and the ability to consent. In terms of the jurisprudence going forward, there remains much ambiguity in the area of evidence pertaining to sexual assault cases. While the present case helps to demonstrate the integral role of circumstantial evidence, there is still a great deal of room for interpretation and clarification on how much evidence is sufficient to prove lack of consent in a court of law.
1 Sidney N. Lederman, Alan W. Bryant & Michelle K. Fuerst, The Law of Evidence in Canada, 5th ed (Toronto: LexisNexis, 2018).
2 R v Al-Rawi, 2018 NSCA 10. [Al-Rawi]
3 R v J.A., 2011 SCC 28,  2 SCR 440.