Probe or­dered in judge com­plaints

Canada/world It will look at al­le­ga­tions stem­ming from sex as­sault case

Metro Canada (Ottawa) - - Front Page -

In a rare move, Nova Sco­tia’s chief jus­tice has or­dered an in­ves­ti­ga­tion into com­plaints against a judge who ac­quit­ted a taxi driver ac­cused of sex­u­ally as­sault­ing an in­tox­i­cated female pas­sen­ger found par­tially naked and un­con­scious in his cab.

Jus­tice Michael Mac­don­ald is­sued a state­ment Thurs­day say­ing a three-mem­ber re­view com­mit­tee will look into al­le­ga­tions of mis­con­duct against Judge Gre­gory Lene­han.

The provin­cial court judge faced in­tense public scru­tiny in March when he said the Crown had failed to prove be­yond a rea­son­able doubt that the woman, who had no mem­ory of what hap­pened, did not con­sent to sex­ual ac­tiv­ity with the driver.

Lene­han said a per­son is in­ca­pable of con­sent if they are un­con­scious or are so in­tox­i­cated that they are un­able to un­der­stand or per­ceive their sit­u­a­tion.

“This does not mean, how­ever, that an in­tox­i­cated per­son can­not give con­sent to sex­ual ac­tiv­ity,’’ Lene­han said in his de­ci­sion. “Clearly, a drunk can con­sent.’’

The 40-yearold driver, Bas­sam Al-rawi, was found not guilty.

Lene­han’s choice of words set off a storm of so­cial me­dia crit­i­cism, a let­ter-writ­ing cam­paign call­ing for a ju­di­cial coun­cil to in­ves­ti­gate, and two public protests. One le­gal scholar sug­gested the stereo­type of the “pro­mis­cu­ous party girl’’ may have fac­tored into the ac­quit­tal. In a draft pa­per sub­mit­ted to Cana­dian Bar Re­view ear­lier this year, Dal­housie law pro­fes­sor Elaine Craig said Lene­han de­served much of the scorn he re­ceived, though his de­ci­sion fell short of mis­con­duct.

Steven Pen­ney, a law pro­fes­sor at the Uni­ver­sity of Al­berta, said Thurs­day the chief jus­tice’s call for an in­ves­ti­ga­tion doesn’t make sense to him, even though he be­lieves Lene­han’s de­ci­sion con­tained le­gal er­rors and will likely be over­turned on ap­peal.

Pen­ney said the prob­lem is there doesn’t ap­pear to be any ev­i­dence to sug­gest Lene­han’s con­duct was un­eth­i­cal or marred by sex­ist stereo­types.

Judges make legally in­cor­rect de­ci­sions all the time. That’s why we have ap­peals.

Steven Pen­ney

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Satel­lite im­agery shows Hurricane Irma as it moves to­wards the Florida Coast in the Caribbean Sea.

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