A former Halifax cab driver wants to reopen his sexual assault trial by employing what one law expert says is an unusual tactic: using the victim's impact statement.
Bassam Al-Rawi was convicted in August of sexually assaulting a woman in his Bedford, N.S., apartment in the early hours of Dec. 15, 2012.
He was set to be sentenced Tuesday in Nova Scotia Supreme Court. But in a conference call Monday with the judge and Crown lawyer, Al-Rawi's lawyer asked for more time.
Ian Hutchison told Justice Gerald Moir that Al-Rawi had recently directed him to apply to reopen the trial based on information in the victim's impact statement.
These letters usually outline how a crime has changed someone's life.
"I don't fully understand how the victim impact statement will be important to trial issues, but now is not the time for me to come to any final conclusions," Moir said during the call.
"Given that I am somewhat in the dark, I have no choice but to adjourn."
Law expert says argument is unusual
Wayne MacKay, a law professor at Dalhousie University, said he's never heard of impact statements as a basis for a mistrial, though it's possible there is precedent.
He said the defence could make an allegation of bias or some kind of inconsistency, but added that was just speculation.
"But it is pretty uncommon and I have never heard of such a thing myself," MacKay said.
Although it's an unusual move, MacKay said most lawyers would not introduce such an argument unless they feel it could stand up in court.
The victim, whose name is protected by a publication ban, testified during the trial that she drove to Halifax from Pictou County with a group of friends on Dec. 14, 2012.
She testified a taxi driver picked her up while she was lost downtown and later assaulted her while she was highly intoxicated and pretending to be unconscious.
Crown attorney Carla Ball fought the adjournment, telling the judge the Crown takes a "very strong position" there is no new evidence in the victim's statement.
Ball said she spoke with the victim about the delay. She continues to respect the process, Ball said.
Hutchison declined comment Tuesday but told the court he is not raising the issue to create further delay. He said his client believes there is evidence in the statement that should have been brought to the judge.
Matter resumes next month
Hutchison also said he needed the time to have letters from Germany that deal with medical issues translated to English. The letters could help the court when determining an appropriate sentence, he said.
Al-Rawi and his wife live in Germany and travelled to Nova Scotia during the trial. After the conviction, Al-Rawi was forced to hand over his passport and live with a friend in Bedford under bail conditions.
Two days have been set aside for the matter, which returns to court Dec.16.
Moir said the court will first hear the victim impact statement read via video. The sentencing will then be stopped while he hears the defence's mistrial application.
Whether sentencing resumes after that depends on the outcome of the application, Moir said.
Al-Rawi and 'drunk can consent' trial controversy
This is the second sex assault charge to bring Al-Rawi before a Halifax court.
He faced previous charges related to allegations he sexually assaulted a female passenger who was found unconscious by a police officer in his cab in 2015.
That case garnered significant attention after the original trial judge acquitted Al-Rawi and commented: "Clearly a drunk can consent."
The Nova Scotia Court of Appeal ordered a new trial, saying the first judge made errors in law, including ignoring circumstantial evidence. Al-Rawi was acquitted again last September.
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