Saying that it is important to protect the judiciary from “mob justice,” a committee has cleared a judge of misconduct over a sexual-assault ruling that drew street protests, a 37,000-signature petition and 121 formal complaints to the Nova Scotia Judicial Council.
Provincial Court Justice Gregory Lenehan acquitted a Halifax taxi driver last year of sexual assault involving an intoxicated female passenger. Police had found the woman partly naked and passed out, with the taxi driver holding her urine-stained underwear. Justice Lenehan, in an oral ruling, said, “clearly, a drunk can consent,” and explained that he had no direct evidence on whether the passenger had consented to sexual activity.
That ruling created fury among women’s groups in Canada, raising questions about whether judges were keeping up with the law of consent. It led to a private member’s bill in Parliament on mandatory training in the law of sexual assault for candidates for the federal bench. It also led to federal legislation codifying that unconscious women cannot consent to sex.
A two-man, one-woman committee that reviewed the 121 complaints at the request of Chief Justice Michael MacDonald of the Nova Scotia’s Court of Appeal said that the “intense public concern” had to be taken into account in assessing how Justice Lenehan’s actions and words had affected public confidence in judges.
But the committee − a judge, a lawyer and a political-science professor − stressed the need to preserve judges’ independence to decide cases honestly and impartially, on the basis of the law and the evidence.
“In assessing the impact of a judge’s conduct on public confidence, we must act ‘as watchdogs against mob justice,’” it said, quoting from a Canadian Judicial Council ruling last year which, conversely, recommended the removal of a judge, Robin Camp of Alberta, over his handling of a sexual-assault case.
Justice Lenehan had shown no gender bias, the committee said, and was accurate in his statement that inebriated people may still be able to consent to sex under Canadian law.
But the committee also said he’d been clumsy in his choice of words. “The use of ill-considered words by a judge in a decision,” it said, “can undermine the public’s confidence in the judiciary just as much as the reality of proven bias.”
Justice Lenehan has been a judge for seven years, and was a Crown attorney before that, frequently prosecuting sexual-assault cases. From now on, he told the committee, he would write out his rulings before delivering them. (He spoke from notes in acquitting taxi driver Bassam Al-Rawi.) That resolve, plus an N.S. Court of Appeal ruling in January throwing out the acquittal and ordering a new trial, should be enough to address any damage to public confidence, the committee said.
The committee’s ruling on Justice Lenehan was disappointing to Linda MacDonald and Jeanne Sarson of Nova Scotia, who lead a group called Persons Against Non-State Torture, and who signed a complaint against the judge.
“This decision reinforces the misogyny of rape culture,” they said in a joint email to The Globe and Mail. In an interview, Ms. MacDonald said: “All the evidence that came in – and then for him to blame it on her being drunk. I think that was extremely biased.”
Justice Lenehan declined, through a lawyer, to speak to The Globe after the ruling. But at the review committee, he had spoken about how difficult the past year had been. He had to change his phone number. Some protesters at the courthouse put personal messages about him on their signs. His family had been subjected to comments about him. He had not been able to speak out.
“He found the situation particularly upsetting in light of what he describes as his approach in every case of treating alleged victims with respect and dignity,” the committee said. “He spoke of the folder he had while acting as a Crown attorney for 21 years, which contained numerous thank-you notes from various complainants and victims of sexual assault for the approach he had taken to their cases. He prides himself in his sense of fairness.”
Peter Gall of Vancouver, one of his lawyers, said the committee struck the right balance. “What always has to be kept in mind is the independence of the judiciary and not impairing that,” he said in an interview.
Justice Lenehan has continued hearing cases – including those involving sexual-assault allegations – while the complaints were before the judicial council. No one has asked for him to recuse himself, the review committee noted in its 45-page ruling.
The misconduct case came a year after the Canadian Judicial Council, for the first time, recommended the removal of a judge over his handling of a sexual-assault trial. Mr. Camp had disparaged the Canadian law of consent, according to the judicial council, and asked the complainant why she didn’t keep her knees together. He resigned after the judicial council’s recommendation.
In the Lenehan case, there was no sign of such biases in court transcripts, the committee said.
It went beyond the taxi-driver case to review other sexual-assault rulings by Justice Lenehan, and an incident in which he’d asked a woman breastfeeding her baby in court, “Do you want to take that out of the courtroom, please, okay?”
In each, it cleared Justice Lenehan of gender bias. In the breastfeeding incident, it accepted his explanation that the baby was too noisy for the small courtroom they were in, although it added that he could have chosen more appropriate words. (The committee said evicting a woman solely for breastfeeding would be cause for concern.)