Calls for judge to be removed from bench as anger grows over cabbie's acquittal
THE CANADIAN PRESS
Published Friday, March 3, 2017 12:49PM AST
Last Updated Friday, March 3, 2017 6:55PM AST
HALIFAX -- There is growing anger over the acquittal of a Halifax taxi driver charged with sexually assaulting a young woman in his cab, with calls for the judge behind the decision to be removed from the bench.
Two marches have been scheduled for next week to press for a review of the ruling by Judge Gregory Lenehan, while others are organizing a weekend gathering to compose letters of complaint seeking a judicial council review.
As well, a coalition of 12 women's agencies from across Nova Scotia is calling for him to be removed from the bench.
Lenehan ruled Wednesday that the Crown failed to prove beyond a reasonable doubt that the woman did not consent to sexual activity with cab driver Bassam Al-Rawi.
In his 20-minute ruling, Lenehan said bluntly, "A drunk can consent."
The 40-year-old man was charged after police found the woman, in her 20s, passed out and partially naked in his car in the early hours of May 23, 2015.
The decision prompted an immediate backlash and a renewed discussion about alleged sexual assault, inebriation and consent -- all factors in another recent case involving a Newfoundland police officer who was acquitted of sexually assaulting a woman who was drunk.
"Lenehan's judgement in this case demonstrates a clear disregard for and lack of understanding of sexual assault and definitions of consent as defined in the criminal code," said a press release issued Friday by the Antigonish Women's Resource Centre Sexual Assault Services on behalf of multiple groups including Halifax's Avalon Sexual Assault Centre.
"Judge Lenehan has demonstrated he is incapable of fairly applying the law in cases of sexual assault and, therefore, must be removed from the bench."
A spokesperson for the public prosecutions service said Friday an appeal of the ruling was under consideration.
Elise MacIntyre, a 27-year-old Halifax automechanic, plans to gather a group on Sunday to compose letters of complaint requesting a judicial council sanction or remove Lenehan from his job.
"We want an inquiry for his fitness for the position he holds," she said during an interview. "I think he lacks empathy and understanding for the issues he's overseeing."
MacIntyre said she was struck by a police constable's testimony that Al-Rawi was seen shoving the woman's pants and underwear between the front seats.
In addition, the court heard evidence that Al-Rawi's pants were undone around his waist and his zipper was down. The woman's wallet, purse and shoes were in the front passenger area, and her pants and underwear were tangled inside out and wet with her urine.
"If the kind of evidence that presented in this case is not substantial enough for a guilty verdict, then what is?" said MacIntyre.
She also argues the judge's comments on consent go too far, and that a judicial council should consider "at a minimum" whether he should continue to hear sexual assault cases.
In his decision, Lenehan had remarked the woman lacked any memory of what happened in the taxi, and he concluded his decision by saying: "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."
The judge, while noting evidence indicated that Al-Rawi had removed the woman's pants, said he didn't know if Al-Rawi had done so with the woman's consent.
Asked about the Halifax ruling in Vancouver on Friday, Prime Minister Justin Trudeau said he wouldn't comment on any specific case, but noted he has said many times that sexual assault survivors should get a fair hearing from a judicial system that will give assailants "real consequences."
"We know we have significant work to do within our judicial system, within our workplaces and indeed within our society and that is something that I have been personally committed to for a very long time," he said.
Diana Whalen, the Nova Scotia justice minister said in a statement, "This and other recent cases in the country make it clear that more education and awareness are needed. Government is considering options for response."
A spokeswoman for the province's judiciary confirmed Friday that a complaint has been received.
The chief judge of the provincial court normally decides whether to refer complaints to a judicial council composed of judges, lawyers and laypeople.
In this instance, the chief provincial court judge is recusing herself from the case because she is Lenehan's former wife. The judiciary hasn't yet indicated who will replace her in the process.
Once formed, the council would have to conclude Lenehan failed in "the due execution of that office," or has placed himself "in a position incompatible with the due execution" of the judge's role. In addition, the province's attorney general would have to recommend his removal.
Judges are rarely removed from office through provincial judicial councils, though the process also allows for the councils to impose lesser sanctions such as training or requiring a leave of absence.
Wayne MacKay, a law professor at Dalhousie University's Schulich school of law, said in an interview that while the legal decision may very well be appealed, removing the judge is another matter.
He also said he doesn't see the incident as being in the same category as the legal saga of Robin Camp, who, as an Alberta provincial court judge, asked a sexual assault complainant in 2014: "Why couldn't you just keep your knees together?" A disciplinary panel recommended Camp's removal from the federal bench.
"It's a very high threshold (for removal) and difficult to meet," said MacKay. "It has to be so outlandish that it destroys the public confidence that it destroys the judge's ability to carry out their duties."
He could only recall one instance of a provincial court judge being dismissed, when Raymond Bartlett was dropped from the provincial court in 1989 for preaching to women and telling them to be subservient to their husbands.
However, MacIntyre said the council should also consider a 2015 incident involving Lenehan, when the Halifax Chronicle Herald reported that a woman was asked to leave Lenehan's courtroom as she was breastfeeding her infant son.
Two marches are being planned on Facebook to protest Lenehan's ruling, one on Tuesday and a second on Wednesday in the city's Grand Parade.
In addition, a change.org petition is calling for a formal inquiry into Lenehan, which had garnered almost 11,600 signatures by midday Friday.