I note in the Progressive Conservative election platform released by leader Jamie Baillie that he has promised that, if elected, “… we will require Provincial Court Judges to complete comprehensive and ongoing education in sexual assault law.”
This follows his demand that the premier should convene a formal inquiry into Judge Gregory Lenehan’s comments in the recent case where a Halifax taxi driver was acquitted of sexual assault.
It is clear that Mr. Baillie did not read, or if he did, he did not comprehend, Judge Lenehan’s decision. Mr. Baillie is obviously catering to some special interest groups that are taking out of context, or outright misrepresenting, the judge’s words. Spokespeople for these groups are lamenting that this decision would prevent some women from lodging complaints in the future for fear they would not be believed.
Such was not the situation in this case. Judge Lenehan apparently accepted the evidence of the complainant but the problem was that she could not remember any details alleging that an assault happened. Considering that a specially-trained sexual assault nurse examiner conducted an examination on the complainant that same day and did not find on her any of the taxi driver’s DNA, nor any forensic evidence of a sexual assault, and the police officer who discovered this scene observed no contact between the taxi driver and the complainant, one can understand the difficulty in deciding beyond a reasonable doubt that the accused should be found guilty.
In addition, Judge Lenehan had to deal with the issue of consent, because as he correctly summarized the law, he would have to establish beyond a reasonable doubt that the taxi driver touched the complainant in such a way that it violated her sexual integrity, and it was done without her consent. He reviewed the actions of the complainant prior to her entering into the taxi cab, which included her arguing with a friend, exchanging texts with two other people and hailing the taxi. Eleven minutes after doing so she was found in another part of town unconscious in the back seat of that taxi.
Judge Lenehan clearly struggled to determine what was proven by the evidence. In the span of a few minutes, the complainant went from someone who was carrying on conversations and giving directions to someone who was unable to do so. The judge also acknowledged that a person is incapable of giving consent if he or she is unconscious, or is so intoxicated by alcohol or drugs as to be incapable of perceiving a situation that presents itself. However, when the complainant here reached that stage, there was no evidence of any contact between her and the taxi driver.
What constitutes one being classified as “drunk” may be a matter of debate. If we use the criminal code standard of a blood alcohol level for impaired drivers, then there are scores of people having sex with “drunks” every weekend. There are instances every day where some women, and some men, lower their inhibitions and judgement and engage in sexual relationships which they otherwise might have avoided. In such circumstances, should a woman be able to have a man charged with sexual assault? Should a man who felt that same way be able to have the woman charged? If they both felt the same way, could they mutually have each other charged?
Judge Lenehan is a former Crown Prosecutor who no doubt dealt with sexual assault victims as a lawyer. He is well aware of various scenarios and issues that present themselves in such cases. In this case, he apparently accepted the evidence of the complainant, the police officer, the sexual assault nurse examiner, and a forensic alcohol specialist who testified at the trial. He did not empathize or identify with the taxi driver. In fact, the judge made a point of chastising the taxi driver for a lack of moral and ethical behaviour and he would not be someone Judge Lenehan would hire as a taxi driver.
Judge Lenehan took three paragraphs to summarize the law regarding capacity to consent and he concluded with the legally correct statement that “clearly a drunk can consent.” This was a general statement and in no way was meant to be a character assassination against the complainant. This one sentence somewhat taken out of context seems to be all of what some people know about this case. There really was no misconduct on the part of Judge Lenehan and the Judicial Council should not even bother to hear any such complaint.
If Judge Lenehan did make a legal error in his decision, the proper forum to deal with it would be an appeal to a higher court. The public prosecution service has taken that step, although I believe it was for political reasons to placate the growing and unwarranted criticism. It does not help matters that politicians make comments that display their lack of comprehension regarding the court’s decision.
Political interference in the independence of the prosecution and trial of cases was supposedly eradicated since the Donald Marshall inquiry and I hope it does not have its ugly head re-emerge in some new form.
The biggest concern society should have now is that some judges may be hesitant to make legally correct decisions because of the possibility of facing undue pressure from politicians and special interest groups. Anybody who believes someone could not be convicted of such a serious crime if he was truly innocent should Google information on the false conviction of Jamie Nelson, an Ontario man who was wrongfully convicted of sexual assault, and as a result, attempted suicide in jail when he was denied bail, spent three years in jail, lost his business, and had his child taken by the Children’s Aid Society and adopted out to strangers. If judges are not free and independent to make decisions solely based on the law and the evidence as presented before them in court, then that is what will amount to a stain on our justice system.
Two concluding points to Mr. Baillie. One, our Provincial Court Judges do not need ongoing education on this topic as nobody understands sexual assault law better than them. Two, for someone who is preaching restraint in government spending, calling for a needless formal inquiry which would probably cost more than a million dollars is a prime example of fiscal irresponsibility coupled with political pandering unbecoming of someone aspiring to be premier of our province.
Kevin J. Patriquin, LL.B