N.S. judge under review

Case involving taxi driver accused of sexually assaulting intoxicated female passenger

Nova Scotia’s chief justice has ordered an investigation into complaints against a judge who presided over a high-profile case involving a taxi driver accused of sexually assaulting an intoxicated female passenger who was found partially naked and unconscious in his cab.

Justice Michael MacDonald issued a statement Thursday saying a threemember review committee, which will include a judge, a lawyer and a member of the public, will look into allegations of misconduct against Judge Gregory Lenehan.

The provincial court judge faced intense public scrutiny in March when he issued an oral decision, saying 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.

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 grounds for appeal include that the judge erred in law in saying the Crown produced no evidence of the complainant’s lack of consent, and that he erred by engaging in speculation on the issue of consent rather than drawing inferences from the facts proven in the evidence.

In the meantime, the review committee will investigate each complaint and decide whether to dismiss it, resolve it with Lenehan’s agreement, or refer the complaint to a hearing of the entire Judicial Council.

One legal scholar has 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 widespread backlash he received.

While falling short of judicial misconduct, Craig said the judge erred in his assessment of the case, but she also suggested Crown and defence lawyers must share responsibility for allowing “legally rejected” stereotypes to seep into the courtroom unchallenged.