Judge facing complaints for exonerating cab driver

PETITIONS CALL FOR INVESTIGATION INTO RULING

ANova Scotia judge is facing formal complaints for acquitting a Halifax taxi driver of sexually assaulting a young woman in the back of his cab in a ruling that concluded “a drunk can consent.”

“At least one” complaint has been filed with the chief judge of the provincial court against Judge Gregory Lenehan over the verdict delivered Wednesday, a court spokesperson said.

The complainant, a woman in her 20s whose identity is protected by a publication ban, was found half-naked and unconscious in the back seat of Bassam Al-Rawi’s cab by a police officer in May 2015. Her DNA was found on his upper lip and he was seen trying to stuff her urine-soaked tights and panties between the front seat and a console.

In addition to formal complaints to the provincial judiciary, others have been sent to the Canadian Judicial Council, which oversees only federal judges.

Those complaints have been redirected to the Nova Scotia office. Petitions calling for an investigation into Lenehan’s ruling have also cropped up online — some already accruing thousands of signatures — and protests have been planned in Halifax and other Canadian cities for next week.

In his 20-minute oral ruling, the judge noted that the law says someone who is extremely intoxicated cannot provide consent if she is “incapable of understanding or perceiving the situation that presents itself.”

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

The protests and the petitions highlight two concerns with the ruling: the idea that a woman who is so drunk she has urinated on herself and is about to pass out can provide consent to sexual activity, and the fact Lenehan referred to her as “a drunk.”

There was also a witness — a police officer — as well as evidence that the complainant’s blood alcohol level was as high as 241 milligrams per 100 millilitres of blood, three times the legal driving limit. Advocates say she would not have been in any state to consent in the minutes before passing out.

“When you look at all those factors together, how could she have possibly consented?” said Susan Wilson, co-ordinator of the Sexual Assault Nurse Examiner program at the Avalon Sexual Assault Centre in Halifax. “It leads all of us to believe she wouldn’t have been able to provide proper consent.”

She said if this case, with all the evidence so often not available in sexual assault trials, can result in an acquittal, it could further discourage people from reporting sexual assaults. Only between six and 10 per cent of sexual assaults are reported to police, she said.

“This is exactly one of the reasons why they don’t,” she said. “I am concerned this is going to affect reporting rates even more so.”

“What’s the message that we’re putting out there? What’s the message that judge is putting out there about consent … and that it’s OK to do this?”

Halifax Mayor Mike Savage said he doesn’t want AlRawi to continue driving a cab but wouldn’t interfere with a decision by the licensing committee to reinstate his cab licence last year. The conditions say Al-Rawi can only drive from 6 a.m. to 6 p.m. and must have a dashboard camera running the entire time.

Multiple media have reported that the 40-year-old cabbie has faced complaints of improper behaviour from passengers in the past.

“Whether he was guilty or innocent from the judge’s point of view, and I don’t question judges, there’s enough evidence for me to say that I don’t want somebody like that driving a taxi in this municipality,” the Mayor told Metro News.

Lenehan somewhat agreed in his ruling, saying he wouldn’t want Al-Rawi driving his daughter or “any other young woman” around.

“Once he saw she had peed her pants, he knew she was quite drunk. He knew going along with any flirtation on her part involved him taking advantage of a vulnerable person,” the judge said. “Taxi drivers are under a moral obligation to not take advantage of intoxicated people.”

But, he said, that moral failure did not amount to a finding of guilty because the Crown failed to prove a lack of consent in the 10 minutes between when the complainant got in Al-Rawi’s cab and when the officer found her passed out in the back.

A spokesperson for the Public Prosecution Service in Nova Scotia said the Crown attorney is reviewing the ruling and deciding whether to appeal. Chief Judge Pamela Williams has recused herself from any investigation into the complaints.

Lenehan was the subject of controversy in 2015, when he told a mother to stop breastfeeding her four-month-old in his courtroom.