Judge in assault trial under review
Case involved issue of drunk sexual consent
HALIFAX • 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 letterwriting 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.
During Al-Rawi’s trial, the woman testified that she consumed three drinks at a downtown bar late on May 22, 2015. She told the court the next thing she remembered was waking up in either the hospital or an ambulance, where she spoke with a female police officer.
Lenehan said the woman couldn’t recall being turned away from the bar after midnight, nor did she recall arguing with a friend, texting others or hailing AlRawi’s cab at 1:09 a.m.
“She doesn’t recall any of that because she was drunk,” Lenehan said in his oral decision. “What is unknown is the moment (she) lost consciousness. That is important. It would appear that prior to that she had been able to communicate with others. Although she appeared drunk to the staff at (the bar) ... she had appeared to make decisions for herself.”