Complaints dismissed
Review clears judge who said ‘Clearly, a drunk can consent’
An independent judicial review committee has dismissed complaints against a Nova Scotia judge who presided over a highprofile case involving a taxi driver accused of sexually assaulting an intoxicated female passenger found partially naked and unconscious in his cab.
The review was ordered after the Nova Scotia Judicial Council received hundreds of complaints about provincial court Judge Gregory Lenehan, most of which focused on his comments at the conclusion of the trial.
His decision to acquit 40-yearold Bassam Al-Rawi — later overturned by the Nova Scotia Court of Appeal — sparked swift and widespread public outrage when he concluded: “Clearly, a drunk can consent.’’
A number of complainants alleged Lenehan’s comments were part of a troubling track record revealing a gender bias, such as when he asked a breastfeeding mother to leave his courtroom. He was also accused of using misogynistic reasoning and reinforcing “rape culture’’ and “social biases.’’
In a decision released Wednesday, the three-member review committee said it found no evidence of impermissible reasoning or bias.
“The test for judicial misconduct has not been met,’’ the decision stated.
“No outcome other than dismissal of the complaints is warranted to maintain the confidence of the reasonable, dispassionate and informed public, who are fully appraised of the fundamental legal principles at play in the criminal justice system.’’
The independent committee, made up of Judge Frank P. Hoskins, Dalhousie University political science professor Katherine Fierlbeck and R. Daren Baxter, the former president of the Nova Scotia Barristers’ Society, said its role was not to determine whether Lenehan erred in law.
Instead, the committee said it had to determine whether he was guilty of judicial misconduct, which carries a high threshold to protect the independence of the judiciary.
The committee’s decision said it would be “dangerous and wrong’’ to equate an error of law with judicial misconduct.
Regarding his comment that a drunk can consent, the committee found that “a reasonably informed person would not conclude that the use of the impugned phrase in this context could lead to a finding of judicial misconduct.’’
Still, the committee said the use of “ill-considered words’’ by a judge can undermine the public’s confidence as much as the reality of proven bias.
For example, Lenehan’s request to a mother breastfeeding her infant son “to take that out of the courtroom’’ may have been better phrased and explained at the time, the decision said.
“Certain phrases ... may have benefited from more careful and contextual reflection,’’ the decision said.
The province’s judicial council received 121 written complaints, in addition to emails and phone calls, following Lenehan’s oral decision.
The cab driver was charged after police found a woman in her 20s passed out in his taxi in the early hours of May 23, 2015.
The complainant was found in the rear seat, naked from the waist down, with her breasts exposed. She was unconscious. The police described the respondent’s zipper as part-way down.
However, Lenehan said there was no evidence of lack of consent — a finding the province’s appeal court later found erred in law.
“The committee can understand why many members of the public found the reported aspects of the case to be of sufficient concern to file complaints, given the current context of sexual assault awareness,’’ it said.
“Judges must therefore be diligent in staying current with changing laws and social value.’’
Meanwhile, other complaints lodged against the judge pointed to decisions they claimed demonstrated Lenehan’s “prejudice against women,’’ including a case involving a man convicted of sexual assaulting his teenage step-daughter.
Complainants said the sentence of two years less one day — to be served in the community — was too lenient.
Yet the committee said in its 45-page decision that the judge accepted a joint sentencing recommendation from the Crown and the defence, and that it was within the range of sentences for similar offences.
Other sentencing decisions were also pointed to as being too lenient, such as two high-profile cases involving youths charged with distributing child pornography related to a photograph of a young woman engaged in explicit sexual activity, which was circulated without her knowledge or consent.
In these cases, the committee noted the judge used stern language with the accused, saying he showed “utter contempt’’ for the young woman, her dignity, her self-respect and her privacy.
The sentence of probation was not reflective of gender bias, the committee said, but abided by provisions of the Youth Criminal Justice Act as well as joint recommendations from the Crown and defence.
The committee noted in its decision that when asked what changes, if any, Lenehan has made since the complaints were filed, he replied that he no longer relies on notes when rendering oral decisions.
Instead, he writes out his decisions in full, the committee said.