Probe ordered for N.S. judge
Committee will look at allegations of misconduct
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.
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.