Probe or­dered for N.S. judge

Com­mit­tee will look at al­le­ga­tions of mis­con­duct

Metro Canada (Toronto) - - CANADA -

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-year-old 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.

“There’s a very clear dif­fer­ence ... be­tween eth­i­cal trans­gres­sions or mis­con­duct and le­gal er­rors,’’ Pen­ney said in an in­ter­view. “Judges make legally in­cor­rect de­ci­sions all the time. That’s why we have ap­peals.’’

Pen­ney said Lene­han’s case stands in con­trast to that of former judge Robin Camp, who asked a sex­ual as­sault com­plainant in 2014 — when he was an Al­berta pro­vin­cial court judge — why the woman couldn’t keep her knees to­gether.

In Camp’s case, there was con­vinc­ing ev­i­dence he made dis­parag­ing re­marks to the com­plainant, and that he used dis­cred­ited and sex­ist myths in com­ing to his de­ci­sion, Pen­ney said.

“There is no ev­i­dence of any­thing ap­proach­ing that in the de­ci­sion of Judge Lene­han,’’ he said, adding that the de­ci­sion to ap­point a re­view panel could send a “chill­ing mes­sage’’ to judges who are faced with mak­ing un­pop­u­lar de­ci­sions.

Wayne MacKay, pro­fes­sor emer­i­tus of law at Dal­housie Univer­sity in Hal­i­fax, dis­missed the idea of a chill­ing im­pact on judges, say­ing they are made of sterner stuff. He said the pub­lic con­tro­versy sparked by the court case de­serves a closer look by a re­view com­mit­tee.

The Crown is seek­ing an ap­peal of Lene­han’s de­ci­sion. A hear­ing is sched­uled be­fore the Nova Sco­tia Court of Ap­peal for Nov. 22.

The cana­dian press file

De­mon­stra­tors protest Judge Gre­gory lene­han’s de­ci­sion to ac­quit a Hal­i­fax taxi driver charged with sex­ual as­sault dur­ing a rally in Hal­i­fax on March 7.

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