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N.S. judge facing probe in sex assault case

Canadian Press logoCanadian Press 2017-09-07 Michael MacDonald

© Provided by thecanadianpress.com HALIFAX - In a rare move, Nova Scotia's chief justice has ordered an investigation into complaints against a judge who acquitted a taxi driver accused of sexually assaulting an intoxicated female passenger found partially naked and unconscious in his cab.

Justice Michael MacDonald issued a statement Thursday saying a three-member review committee will look into allegations of misconduct against Judge Gregory Lenehan.

The provincial court judge faced intense public scrutiny in March when he said 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.

One legal scholar 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 scorn he received, though his decision fell short of misconduct.

Steven Penney, a law professor at the University of Alberta, said Thursday the chief justice's call for an investigation doesn't make sense to him, even though he believes Lenehan's decision contained legal errors and will likely be overturned on appeal.

Penney said the problem is there doesn't appear to be any evidence to suggest Lenehan's conduct was unethical or marred by sexist stereotypes.

"There's a very clear difference ... between ethical transgressions or misconduct and legal errors," Penney said in an interview. "Judges make legally incorrect decisions all the time. That's why we have appeals."

Penney said Lenehan's case stands in contrast to that of former judge Robin Camp, who asked a sexual assault complainant in 2014 — when he was an Alberta provincial court judge — why the woman couldn't keep her knees together. Camp resigned from his Federal Court position in March after a removal hearing by the Canadian Judicial Council.

In Camp's case, there was convincing evidence he made disparaging remarks to the complainant, and that he used discredited and sexist myths in coming to his decision, Penney said.

"There is no evidence of anything approaching that in the decision of Judge Lenehan," he said, adding that the decision to appoint a review panel could send a "chilling message" to judges who are faced with making unpopular decisions.

Wayne MacKay, professor emeritus of law at Dalhousie University in Halifax, dismissed the idea of a chilling impact on judges, saying they are made of sterner stuff.

He said the public controversy sparked by the court case deserves a closer look by a review committee.

"By suggesting that I think it's a good idea to have the inquiry, I don't necessarily think that there will be any finding of misconduct," MacKay said. "It's a process for the benefit of Judge Lenehan to have the whole matter cleared up ... I still think it's a good idea, given all the controversy locally."

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 — which will include a judge, a lawyer and a member of the public — will investigate each complaint and decide whether to dismiss it, resolve it with Lenehan's agreement, or refer the complaint to a hearing before an eight-member judicial council.

Under the Provincial Court Act, if the council decides further action is warranted, it could impose disciplinary measures, which may include: a leave of absence with pay for the judge to get additional training; a written reprimand; or a recommendation to the attorney general for removal from office.

However, such a recommendation would require final approval from the provincial cabinet.

During Al-Rawi's trial, the woman testified that she had consumed three drinks at a downtown bar late on May 22, 2015. She told the court that 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 Al-Rawi'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."

Court heard that when a police officer spotted the woman in the back seat of the cab at 1:20 a.m., she was lying unconscious, naked from the waist down with her tank top pushed up and her legs propped up on the two front seats.

The constable testified that the driver was seen shoving the woman's pants and underwear between the front seats, As well, his pants were undone around his waist and his zipper was down.

Four days after the judge's decision, Al-Rawi's lawyer issued a statement saying his client has been pilloried unfairly and racially stereotyped.

Luke Craggs said Al-Rawi was found not guilty for legitimate reasons, including a lack of forensic evidence of sexual activity. He said an alarming amount of the public discussion about the case "perpetrated the grotesque stereotype" that Al-Rawi's Arab background "means he is the type of person to sexually assault a vulnerable person."

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