Nova Scotia

Complaints about N.S. judge who said 'a drunk can consent' will be investigated

Comments Judge Gregory Lenehan made in March when he acquitted a Halifax taxi driver of sexually assaulting an intoxicated passenger sparked complaints about his conduct.

Judge Gregory Lenehan acquitted Halifax taxi driver of sexually assaulting passenger

Judge Gregory Lenehan is seen here in 2009 when he was Crown attorney. (CBC)

A review committee will be formed to investigate misconduct complaints filed against Nova Scotia provincial court Judge Gregory Lenehan, the province's chief justice announced Thursday.

In March, Lenehan acquitted Halifax taxi driver Bassam Al-Rawi of sexually assaulting an intoxicated female passenger. His comment that "clearly, a drunk can consent" sparked protests and at the time led to complaints about his conduct.

But the move by Chief Justice Michael MacDonald to set up a panel to look further into complaints filed by individuals has surprised a sexual assault law expert who has been highly critical of Lenehan's handling of the case.

Elaine Craig, a law professor at Dalhousie University, has done an in-depth review of the case and said Lenehan made numerous errors in law. But she argues those don't amount to the more serious allegation of judicial misconduct.   

Bassam Al-Rawi appears in Halifax provincial court during his sexual assault trial in February 2017. (Jeff Harper/Metro Halifax)

"I think Judge Lenehan's mistakes and deficiencies in the case were serious but from my perspective were legal errors and not judicial misconduct," she said in an interview.

"There's a difference between making mistakes, even egregious mistakes with respect to the law … and engaging in what we would call making judicial misconduct."

In his decision, Lenehan found the Crown had not offered any evidence that the passenger, who was found unconscious by a police officer in the back of the taxi, had not consented to sexual contact with Al-Rawi.

The exact nature of the complaints brought forward against Lenehan have not been made public. Nor have the names of the people who made them. 

Dalhousie University law professor Elaine Craig is an expert in sexual assault law. (Andrew Vaughan/Canadian Press)

The review committee will consist of a provincial or family court judge appointed by the Nova Scotia Provincial Judges Association, a lawyer appointed by the Nova Scotia Barristers' Society and a public representative appointed by the Attorney General Mark Furey.

No deadline for a decision

The group will investigate each complaint and decide whether to dismiss it, resolve it with the agreement of the judge involved or refer the complaint to a hearing of the entire judicial council.

Under the Provincial Court Act, there is no timeframe governing how long the review committee might take to complete its work. Once that work is complete, those who complained about the judge will receive a written response explaining the outcome.

The Crown has also moved to appeal the Al-Rawi decision. That appeal is set to be heard in the Nova Scotia Court of Appeal on Nov. 22. 

Judges need more training 

Lenehan's legal mistakes include failing to apply the correct definition of capacity to consent, according to Craig.  

She said the appeal process is meant to iron out any mistakes a judge makes in law. Judicial misconduct, she said, typically means a judge disrespects a complainant or the law, something she argues did not happen in the Al-Rawi case.

Craig said the Al-Rawi case demonstrates that judges need more training in the area of sexual assault before they take the bench.

"Like the definition of consent, the rules regarding the use of prior sexual history, so just basic law of sexual assault and the law of evidence as well as the role of stereotypical thinking, unfortunately [continue] to play in our adjudication of these cases," she said.

"I think the stereotype that was most operative in this case is the notion that upon consumption of alcohol certain types of women will consent to anything. The promiscuous party-girl stereotype."