Complaints mount against judge in cab sex assault case who said 'a drunk can consent'

Complaints are mounting against a Nova Scotia judge who said that "clearly a drunk can consent" as he acquitted a Halifax taxi driver of sexually assaulting an intoxicated passenger found partly naked and unconscious in the back of his cab.

Judge Gregory Lenehan found Bassam Al-Rawi, 40, not guilty Wednesday following a two-day trial in February in Halifax provincial court. The judge said some of what the court heard was "very disturbing" and "there's no question" the woman was drunk.

• Nova Scotia cabinet minister slams judge's sex assault comments

"This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly, a drunk can consent," he said.

The judge's remarks have drawn criticism, and on Thursday two legal experts called them "dangerous." One said Lenehan is delivering a message to the public that "it's open season on incapacitated women."

• Read the full decision from Judge Gregory Lenehan

Woman found partially naked

In May 2015, a police officer found a 26-year-old woman in the back of Al-Rawi's car. She was naked from the chest down, Al-Rawi had her urine-soaked underwear in his hands and test results later found her DNA on his upper lip.

The police officer said Al-Rawi's pants were halfway down his buttocks and his zipper was undone when he left the vehicle. Al-Rawi later told police that he doesn't button his pants when he drives long hours, according to a 2015 search warrant application.

The woman testified she recalls little from that night. She had been drinking at a downtown bar and doesn't remember getting into a cab.

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The judge noted that intoxication tends to reduce inhibition and increase risk-taking behaviour.

"This often leads to people agreeing and to sometimes initiate sexual encounters only to regret them later when they are sober," Lenehan said. "In testimony, [the woman] could not provide any information, any details on whether she agreed to be naked in the taxi or initiated any sexual activity.

"The Crown failed to produce any evidence of lack of consent at any time."

Elizabeth Sheehy, a member of the University of Ottawa's faculty of law who teaches sexual assault law, said there's no clearly defined legal or medical line for when "intoxication or incapacitation crosses into incapacity to consent." It makes such cases particularly difficult.

• What the Criminal Code of Canada says about consent

Still, Sheehy said, Lenehan's comments about consent send dangerous and worrisome messages.

"I think the message to the public at large is it's open season on incapacitated women," she told CBC's Maritime Noon.

Dalhousie University law school professor Wayne MacKay said the judge's comment adds to the view that the law does not take sexual assault as seriously as it should.

"That's a very dangerous message, given the significant and very unfortunate underreporting of sexual assault that we already have," he said.

Complaints coming in

The Canadian Judicial Council, which oversees accountability of federally appointed judges, said 10 people had already sent complaints overnight Wednesday about Lenehan and his ruling.

The council, however, does not review the conduct of provincial court judges. People who sent those notes have been told to take their complaints to the chief judge of the provincial and family courts in Nova Scotia.

CBC News has learned that Chief Judge Pam Williams plans to recuse herself from hearing any complaints related to Lenehan, who is her ex-husband.

The Judicial Council Act outlines that if a chief judge is unable to carry out her duties due to a conflict of interest, she can be replaced by the associate chief judge of the provincial court or another provincially appointed judge.

The Public Prosecution Service of Nova Scotia says it will review Lenehan's ruling before deciding whether to appeal.

Other complaints from female passengers

A 2015 search warrant application mentions other situations involving Al-Rawi and female passengers.

One woman reported that Al-Rawi did not stop at her house, kept driving around the block while calling her "baby" and grabbed her hand and asked her to stay. The woman only wanted this information documented.

• Drugs, drinking, sex assault: 12 Halifax cabbies have lost licences in 6 years

In another situation, a woman reported being intoxicated and getting into a cab driven by Bassam Abdullatif. Abdullatif and Al-Rawi are the same person, according to the search warrant.

Allegedly Al-Rawi took the woman up to his apartment and sexually assaulted her. The woman had limited recollection of the alleged assault.

Authorities in Halifax said Thursday there are no other outstanding charges against Al-Rawi.

No longer works for Bob's Taxi

In a statement on Thursday, Bob's Taxi said Al-Rawi has not worked for them since he was arrested in 2015.

Al-Rawi's licence to drive a cab was initially suspended by Halifax's taxi commission after his arrest, but reinstated in August 2015 after he appealed.

The appeal commission, made up of six municipal councillors, determined he should get his licence back while the sexual assault case was before the court, but with two conditions: he could only drive from 6 a.m. to 6 p.m. and he had to have a camera installed in his vehicle.

Has not driven a cab since 2015

City spokesperson Brendan Elliott said Al-Rawi has not driven a cab in Halifax since 2015. Al-Rawi wasn't able to provide the city with proof of who he was driving for. He was unable to show that a cab company would hire him, and he did not register as an independent cab driver.

That sent his licence into a non-operational state in September 2015.

Elliott confirmed that now the criminal case is over, the taxi licensing office will examine whether Al-Rawi's licence should be granted or revoked, using all the evidence that was presented in court.