A Cape Bre­ton lawyer isn’t impressed by politi­cians at­tempt­ing to give judges a les­son in law.

Judges must be able to make de­ci­sions solely based on the law and the ev­i­dence as pre­sented in court

Cape Breton Post - - Cape Breton - Kevin Pa­triquin Kevin J. Pa­triquin, B.A., LL.B, is a crim­i­nal de­fence lawyer re­sid­ing and prac­tic­ing in Port Hawkesbury. He works for Nova Sco­tia Le­gal Aid and has been a prac­tic­ing mem­ber of the Nova Sco­tia bar for 30 years.

I note in the Pro­gres­sive Con­ser­va­tive elec­tion plat­form re­leased by leader Jamie Bail­lie that he has promised that, if elected, … “we will re­quire pro­vin­cial court judges to com­plete com­pre­hen­sive and on­go­ing ed­u­ca­tion in sex­ual as­sault law.”

This fol­lows his de­mand that the premier con­vene a for­mal in­quiry into Judge Gre­gory Lene­han’s com­ments in the re­cent case where a Hal­i­fax taxi driver was ac­quit­ted of sex­ual as­sault.

It is clear that Bail­lie did not read or com­pre­hend Judge Lene­han’s de­ci­sion. Baille is ob­vi­ously cater­ing to some spe­cial in­ter­est groups that are tak­ing out of con­text the judge’s words. Spokes­peo­ple for these groups are lament­ing that this de­ci­sion will pre­vent some women from lodg­ing com­plaints in the fu­ture for fear they would not be be­lieved.

Such was not the sit­u­a­tion in this case. Judge Lene­han ap­par­ently ac­cepted the ev­i­dence of the com­plainant but the prob­lem was that she could not re­mem­ber any de­tails al­leg­ing that an as­sault hap­pened. Con­sid­er­ing that a spe­cially trained sex­ual as­sault nurse ex­am­iner con­ducted an ex­am­i­na­tion on the com­plainant that same day and did not find on her any of the taxi driver’s DNA nor any foren­sic ev­i­dence of a sex­ual as­sault, and the po­lice of­fi­cer that dis­cov­ered this scene ob­served no con­tact be­tween the taxi driver and the com­plainant, one can un­der­stand the dif­fi­culty in de­cid­ing beyond a rea­son­able doubt that the ac­cused should be found guilty.

In ad­di­tion, Judge Lene­han had to deal with the is­sue of con­sent be­cause as he cor­rectly sum­ma­rized the law, he would have to es­tab­lish beyond a rea­son­able doubt that the taxi driver touched the com­plainant in such a way that it vi­o­lated her sex­ual in­tegrity AND it was done with­out her con­sent. He re­viewed the ac­tions of the com­plainant prior to her en­ter­ing into the taxi cab, which ac­tions in­cluded her ar­gu­ing with a friend, ex­chang­ing texts with two other peo­ple and hail­ing the taxi. Eleven min­utes af­ter do­ing so she was found in an­other part of town un­con­scious in the back seat of that taxi.

Judge Lene­han clearly strug­gled to de­ter­mine what was proven by the ev­i­dence. In the span of a few min­utes the com­plainant went from some­one who was car­ry­ing on con­ver­sa­tions and giv­ing di­rec­tions to some­one who was un­able to do so. The judge also ac­knowl­edged that a per­son is in­ca­pable of giv­ing con­sent if he or she is un­con­scious or is so in­tox­i­cated by al­co­hol or drugs as to be in­ca­pable of per­ceiv­ing a sit­u­a­tion that presents it­self. How­ever, when the com­plainant reached that stage there was no ev­i­dence of any con­tact be­tween her and the taxi driver.

If we use the crim­i­nal code stan­dard of a blood al­co­hol level for im­paired driv­ers, then there are scores of peo­ple hav­ing sex with “drunks” ev­ery week­end. There are in­stances ev­ery day where some women, and some men, lower their in­hi­bi­tions and judge­ment and en­gage in sex­ual re­la­tion­ships which they oth­er­wise might have avoided. In such cir­cum­stances should a woman (or a man) be able to have the other per­son charged with sex­ual as­sault? If they both felt the same way could they mu­tu­ally have each other charged?

Judge Lene­han is a former crown pros­e­cu­tor who is well aware of the var­i­ous sce­nar­ios and is­sues that present them­selves in such cases. In this case he ap­par­ently ac­cepted the ev­i­dence of the com­plainant, the po­lice of­fi­cer, the sex­ual as­sault nurse ex­am­iner and a foren­sic al­co­hol spe­cial­ist who tes­ti­fied at the trial. He did not em­pathize or iden­tify with the taxi driver. In fact, the judge made a point of chastis­ing the taxi driver for a lack of moral and eth­i­cal be­hav­iour.

Judge Lene­han took three para­graphs to sum­ma­rize the law re­gard­ing ca­pac­ity to con­sent and he con­cluded with the legally cor­rect state­ment that “clearly a drunk can con­sent.” This was a gen­eral state­ment and in no way was meant to be a char­ac­ter as­sas­si­na­tion against the com­plainant. This one sen­tence some­what taken out of con­text seems to be all of what most peo­ple know about this case. There re­ally was no mis­con­duct on the part of Judge Lene­han and the ju­di­cial coun­cil should not even bother to hear any such com­plaint.

If Judge Lene­han did make a le­gal er­ror in his de­ci­sion the proper fo­rum to deal with it would be an ap­peal to a higher court. The pub­lic pros­e­cu­tion ser­vice has taken that step. It does not help mat­ters that politi­cians make com­ments that dis­play their lack of com­pre­hen­sion re­gard­ing the court’s de­ci­sion. Po­lit­i­cal in­ter­fer­ence in the in­de­pen­dence of the pros­e­cu­tion and trial of cases was sup­pos­edly erad­i­cated since the Don­ald Mar­shall in­quiry and I hope it does not have its ugly head reemerge in some new form.

The big­gest con­cern now is that some judges may be hes­i­tant to make legally cor­rect de­ci­sions be­cause of the pos­si­bil­ity of fac­ing un­due pres­sure from politi­cians and spe­cial in­ter­est groups. If judges are not free and in­de­pen­dent to make de­ci­sions solely based on the law and the ev­i­dence as pre­sented in court, then that is what will amount to a stain on our jus­tice sys­tem.

Our Pro­vin­cial Court judges do not need on­go­ing ed­u­ca­tion on this topic as no­body un­der­stands sex­ual as­sault law bet­ter than them. Call­ing for a need­less for­mal in­quiry which would prob­a­bly cost more than a mil­lion dol­lars is a prime ex­am­ple of fis­cal ir­re­spon­si­bil­ity cou­pled with po­lit­i­cal pan­der­ing un­be­com­ing of some­one as­pir­ing to be premier of our prov­ince.

“It does not help mat­ters that politi­cians make com­ments that dis­play their lack of com­pre­hen­sion re­gard­ing the court’s de­ci­sion.”

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