Here's why Judge Lenehan was cleared in 'drunk can consent' sex-assault case

The Nova Scotia provincial court judge at the centre of the controversial sexual-assault trial involving taxi driver Bassam Al-Rawi has been vindicated.

Judge Gregory Lenehan acquitted Al-Rawi of sexually assaulting an intoxicated female passenger in Halifax.

Nova Scotia's Chief Justice J. Michael MacDonald as chair of the judicial council called for a committee to independently review the complaints against Lenehan. The committee would also determine if Lenehan conducted judicial misconduct while delivering his ruling in the Al-Rawi case. It did not look at the ruling itself. 

The membership of the committee is outlined by the Provincial Court Act and was not appointed by MacDonald.   

A new trial has since been ordered for Al-Rawi. 

In his March 2017 decision Lenehan said the Crown provided "absolutely no evidence on the issue of lack of consent." The judge went on to add, "clearly, a drunk can consent." That phrase set off protests and led to 121 complaints about his conduct.

A decision released today by the Executive Office of the Nova Scotia Judiciary states, "The uses of ill-considered words by a judge in a decision can undermine the public's confidence in the judiciary." But "the test for judicial misconduct has not been met."

Phrase referred to drunk people in general

In its decision, the three-member review committee cited Lenehan's statement that he was trying to use direct language that Al-Rawi could understand. Al-Rawi relied on an Arabic-to-English translator for his trial.

The committee noted that the expression "clearly, a drunk can consent" is "not an incorrect statement of the law." Lenehan told the committee he used the phrase when referring to any person in a state of drunkenness, not the complainant specifically. 

"[Lenehan] was focused on the presumption of innocence and the requisite standard of proof. While he committed errors of law as found by the Court of Appeal, and could have more carefully reflected his reasons, the committee could not find evidence to attribute the judge's approach to bias," the ruling states. 

"This committee closely examined the allegations of gender bias or influence arising from attitudes based on stereotype, myth or prejudice that were raised by the complainants."

The review committee noted that had Lenehan said "a drunken consent is a valid consent," or "intoxicated person can nonetheless consent," he would have made the same point without sounding personal or harsh. 

3 other complaints investigated

Aside from Al-Rawi, the committee focused on three main complaints:

1. An incident where Lenehan asked a breastfeeding mother to leave his courtroom.

2. A case where he sentenced a man for sexually assaulting his teenage stepdaughter.

3. Two cases where he sentenced male youths for distributing child pornography.

Breastfeeding incident

In October 2015, Lenehan asked a breastfeeding mother to leave his courtroom. The committee listened to the audio of the case and said his tone was neither terse nor discourteous.

They interviewed him about it. He said that the issue was noise, as the woman was sitting in the front of a small courtroom where a case was about to begin. Lenehan said he doesn't allow any noise in his courtroom, including whispered conversations. He recently asked a person to leave when they kept rooting through a plastic shopping bag.

Lenehan told the committee that if the woman had been sitting at the back of a big courtroom, the noise might not have been an issue and he would not have asked her to leave. "He stated he does not have any objection in principle to mothers breastfeeding in public or in his courtroom," the committee wrote.

"A judge requesting a woman to leave a courtroom simply because she is breastfeeding would be cause for concern. If, however, the issue for the judge is the control of noise which may distract the parties, and which may be picked up on the court recording, then it is appropriate for the judge to make reasonable requests to control the noise level," they wrote.

Thus, those complaints were dismissed.

Man assaulted stepdaughter

In March 2012, Lenehan oversaw a trial where a man known only as E.W. due to a publication ban was convicted of sexually assaulting his teenage stepdaughter. The Crown and defence offered a joint recommendation that the man serve two years less a day to be served in the community under a conditional discharge.

Lenehan accepted the recommendation. The committee noted judges should only reject joint recommendations when it would be "contrary to the public interest or would bring the administration of justice into disrepute."

The sentence was within the range for similar offences. Lenehan used strong language in condemning the man. The committee said no "reasonably informed person" would conclude Lenehan had committed judicial misconduct and dismissed the complaints.

Youths convicted of child pornography

Lenehan sentenced a youth known as KB for distributing child pornography in a well-known case. KB had been photographed engaged in "explicit sexual activity" with a young woman and KB shared the image.

Lenehan accepted the joint recommendation from the Crown and defence to give him probation, which was in the range of sentences for similar offences. Lenehan told the young man he "displayed absolutely no respect" for the young woman and in sharing the photo "demonstrated utter contempt for [her] dignity, her self-respect and her privacy."

The committee said that was not reflective of gender bias or a "history of misogynistic actions," as one letter of complaint put it. It dismissed the complaint.

Similarly, in a case against a youth known as CS, Lenehan accepted the joint recommendation for a conditional discharge. He told the young man his "stark objectification of girls and women" had left the young woman "degraded" and "humiliated."

Again, the committee found no evidence of a bias against women nor judicial misconduct.