HALIFAX — A Halifax taxi driver acquitted of sexually assaulting a drunk and unconscious woman has been ordered to again stand trial in a case that sparked a national debate over intoxication and the capacity to consent to sex.
In a unanimous decision released Wednesday, the Nova Scotia Court of Appeal concluded the original trial judge erred in law by finding there was no evidence of lack of consent.
A three-justice panel found provincial court Judge Gregory Lenehan ignored or disregarded circumstantial evidence showing the complainant did not agree to sexual activity, or that she lacked the capacity to do so.
“Here, the trial judge discounted the substantial body of circumstantial evidence of lack of consent or capacity to consent as ‘absolutely no evidence,’” the 30-page decision says.
“On this ground alone, the Crown is entitled to a new trial … In addition, the trial judge made findings for which there was no evidence. In doing so, he erred in law.”
Under the Criminal Code, the Crown was obligated to prove beyond a reasonable doubt the complainant was not capable of understanding the nature of what was happening to her.