Judge who said ‘clearly, a drunk can consent’ exonerated

H A L I FA X • A judicial review committee has dismissed complaints against a Nova Scotia judge who presided over a 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 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 Hoskins, Dalhousie University political science professor Katherine Fierlbeck and 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.

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.

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.”