HALIFAX -- A defence lawyer appeared to suggest Thursday that a woman who was allegedly sexually assaulted by a Halifax taxi driver had removed her own clothes inside the cab.
The complainant, whose identity is protected from publication, has told Bassam Al-Rawi's retrial that she was drunk at a downtown nightclub on May 22, 2015, and has no memory of being found unconscious and mostly naked in the back of his vehicle on a dark street in the city's south end.
Defence lawyer Ian Hutchison made a series of suggestions during cross examination in Halifax provincial court, including that the woman kissed the taxi driver on the cheek, ear and neck during the ride from downtown Halifax.
"If I was to suggest to you that it was in fact you who pushed your pants down, would you be in a position to disagree?" Hutchison asked.
The woman, now in her late 20s, replied: "No."
Hutchison also suggested the woman exited the vehicle at one point and urinated on herself, and that she had put her feet up on the front seats and kicked her sandals off.
The complainant told Judge Ann Marie Simmons she could not disagree with the suggestions.
The woman has testified she does not remember leaving the bar and has no memory of police finding her passed out in the back of the cab.
Al-Rawi faces a charge of sexual assault, after an acquittal was overturned last January by the Nova Scotia Court of Appeal.
The appeal court concluded the judge that presided over Al-Rawi's first trial in March 2017, Gregory Lenehan, erred in law by finding there was no evidence of lack of consent.
The woman has testified that she lived several kilometres from where police found her in Al-Rawi's taxi.
Hutchison asked if it was possible that she was confused about where she lived, but the woman disagreed, saying that despite being intoxicated, "I've always found my way home on those occasions."
Court also heard from an RCMP toxicologist Thursday.
Tracy Cherlet testified that the woman's blood-alcohol level was more than double the legal limit at the time a blood sample was taken at a hospital, hours after the alleged sexual assault.
Crown lawyer Jennifer MacLellan asked Cherlet to hypothetically determine the woman's level of intoxication earlier in the evening, when she had consumed five beers, two tequila shots and at least one mixed drink.
"In this particular case we have an individual who is experiencing unconsciousness and a loss of bladder control, so those signs, as well as the blood-alcohol concentration, are associated with an individual who is severely intoxicated by alcohol," Cherlet said.
Cherlet, an expert qualified to give opinion evidence at the trial, also said that alcohol can cause blackouts -- which can lead to total or fragmented memory loss -- and that the affected person may not be giving outward signs that they are experiencing a blackout.
In earlier testimony, Bob's Taxi employee Niels Jensen said Al-Rawi picked up a fare from Grafton Street in downtown Halifax at 1:08 a.m. on May 23, 2015, roughly 10 minutes before a police constable approached the taxi in the south end.
The trial continues Friday, when a forensic biologist will testify about swabs and other items he analysed for DNA.
In his decision at the first trial, Lenehan said: "Clearly, a drunk can consent," a remark that sparked a national debate over intoxication and the capacity to consent to sex.
An independent judicial review committee last year dismissed several complaints against Lenehan, saying it found no evidence of impermissible reasoning or bias in his ruling.
