121 complaints dismissed against Nova Scotia judge who said ‘clearly, a drunk can consent’
|globalnews.ca 04 Apr 2018 at 11:12|
between March and May 2017, after Judge Gregory Lenehan acquitted a Halifax taxi driver of sexually assaulting a female passenger.
In his decision, Lenehan ruled that the Crown did not prove beyond a reasonable doubt that the complainant didn’t consent to sexual activity with the cab driver, Bassam Al-Rawi.
“Clearly, a drunk can consent,” Lenehan said as part of the ruling.
The decision and the phrase Lenehan used sparked a backlash, with in Halifax, groups calling for the judge’s removal , and provincial politicians voicing their disapproval of the judge’s comments.
Some of the complaints filed with the Nova Scotia Judicial Council referenced an incident in October 2015, when Lenehan asked a breastfeeding mother to leave his courtroom. According to the review committee, the complainants said that incident, among others, supported “the suggestion that Judge Lenehan had a ‘track record’ of gender bias.”
But in its decision, the review committee said that the threshold for finding judicial misconduct is high and that after reviewing the trial transcript and decision in the Al-Rawi case, the three-member panel found no evidence of “impermissible reasoning or bias.”
“While this Review Committee has concluded that the choice of certain language by Judge Lenehan in Al-Rawi and in the breast-feeding incident may have benefited from more careful and contextual reflection, it would be dangerous and wrong to equate this with judicial misconduct,” the committee’s decision read.
The review committee consisted of three members of the Judicial Council: Provincial Court Judge Frank Hoskins, appointed by the Nova Scotia Provincial Judges’ Association; Katherine Fierlbeck, appointed by the Attorney General, and Daren Baxter, appointed by the Nova Scotia Barristers’ Society.
On Jan. 31, the Nova Scotia Court of Appeal ordered a new trial for Al-Rawi.
In a unanimous decision, the court of appeal said Lenehan discounted the “substantial body of circumstantial evidence of lack of consent or capacity to consent.”
It also noted that the comment, “Clearly, a drunk can consent,” is legally correct but that the judge erred in law when he equated incapacity only with unconsciousness.