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
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.”