Nova Scotia judge who acquitted taxi driver of sex assault to be investigated

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Nova Scotia Chief Justice Michael MacDonald says he will establish a committee to review allegations of misconduct against Provincial Court Justice Gregory Lenehan over his handling of a sexual-assault trial.

The committee's role will be to decide whether complaints against Justice Lenehan should be heard by a disciplinary body, or be resolved with the agreement of the judge, or dismissed. Chief Justice MacDonald did not reveal the number of public complaints against Justice Lenehan. No time frame is set for the committee to do its review. The committee will include a judge of the Provincial or Family Court, a lawyer and a member of the public nominated by Justice Minister Mark Furey.

A hearing by a disciplinary body could lead to a recommendation for the judge's removal – a rare step in Canada.

Related: Nova Scotia judge under fire for claiming 'a drunk can consent' in sex-assault case

Justice Lenehan came under fire after acquitting a Halifax taxi driver, Bassam Al-Rawi, found in his car with a woman in her 20s who was passed out and naked from the waist down. A police constable told Mr. Al-Rawi's trial in December and January that the driver's seat was partly reclined, his pants were undone at the waist and his zipper was down. He was trying to shove the woman's urine-soaked pants and underwear into the front console. The woman's blood alcohol level was three times the legal limit for driving, at 244 milligrams per 100 millilitres of blood. And a downtown bar had refused to let her in because of her intoxication.

Justice Lenehan, in an oral ruling in March, said that "clearly … a drunk can consent." He also said that while some facts were "very disturbing," he noted that before entering the taxi the woman had been able to text with friends, hail a taxi and take money from her wallet to pay the driver.

The Crown's appeal of the acquittal will be heard by the Nova Scotia Court of Appeal on Nov. 22. Chief Justice MacDonald has recused himself from participating in that hearing because of his role with the Judicial Council.

After Justice Lenehan's ruling, there were public protests in Halifax with as many as 300 people, and a petition with more than 37,000 signatures demanded a formal inquiry.

"I think it's wonderful; I think it's a positive step," Kendra MacKinnon, acting executive director of the Colchester Sexual Assault Centre in Truro, N.S., told The Globe and Mail, referring to the announcement of a review. "A drunk can not consent to sexual activity. It's ludicrous to believe that a woman who has urinated in her underwear and is clearly passed out can consent to sexual activity." She said more education of judges and police is needed around sexualized violence. She praised former Conservative MP Rona Ambrose for putting forward a private member's bill requiring candidates for the federal bench to take training in sexual-assault law. The bill has become law.

But one advocate for more training of judges in sexual-assault law said she is surprised that the complaints against Justice Lenehan have gone to the committee stage.

"I think Justice Lenehan's decision in Al-Rawi was filled with legal errors and it should be overturned, and I think there were concerns about substantive incompetence," law professor Elaine Craig, who specializes in sexual-assault law at Dalhousie's Schulich School of Law, said in an interview. "But I reviewed the transcript and I didn't find any evidence of judicial misconduct."

According to the Courts of Nova Scotia website, legal errors are reversible by appeal courts, while if someone believes "a judge's conduct or behaviour is of serious concern, or that a judge is not fit to be on the bench, our system allows that person to file a complaint."

Complaints against Provincial Court judges in Nova Scotia are made to Chief Judge Pamela Williams. She recused herself in this case because she used to be married to Justice Lenehan. The complaints then went to Associate Chief Judge Alan Tufts, who reviewed them and then referred them to Chief Justice MacDonald, who chairs the province's judicial council.

In March, former justice Robin Camp of the Federal Court of Canada resigned after a disciplinary body recommended his removal from the bench. While sitting as a Provincial Court judge in Alberta in 2014, he asked a sexual-assault complainant why she didn't keep her knees together.