When judges spark outcry
In the days since Judge Gregory Lenehan acquitted Bassam al-Rawi in Halifax, there has been, to say the least, outcry.
A group of Haligonians took to the city’s central library to launch a letter-writing campaign. The leader of the opposition Progressive Conservatives has called for an inquiry. One petition calling for a formal investigation to the judge has hit nearly 35,000 signatures, while another calling for his resignation is nearing 2,000.
Lenehan’s decision added fuel to the fire of an ongoing debate over sexual assault, and where the law sits on consent.
The Crown alleged that al-Rawi sexually assault a woman in the back of his taxi in 2015. The woman, it contended, was intoxicated and could not have consented. She told police she had no recollection of the evidence, though her DNA was found on his lips and a police officer who arrived on the scene found a scene that made it very clear that sexual contact had occurred.
Lenehan’s decision focused around the timeline, and whether the two had sex before, or after, the complainant passed the threshold of being able to consent. Lenehan wrote in his ruling that the Crown would need to prove, beyond a reasonable doubt, not just that al-Rawi touched or had sex with the complainant — but that she was incapable of consenting at the time.
In concluding that “clearly, a drunk can consent,” the judge introduced a definition of where consent begins, and where it ends: “A person would be incapable of giving consent if she is unconscious, or is so intoxicated by alcohol or drugs as to be incapable of understanding or perceiving the situation that presents itself,” Lenehan writes.
That is, indeed, roughly where the Supreme Court set the standard for consent — albeit in a very specific case.
In R. v. J.A., in 2011, the top court found that “the jurisprudence has consistently interpreted consent as requiring a conscious, operating mind, capable of granting, revoking or withholding consent to each and every sexual act” adding “when the complainant loses consciousness, she loses the ability to either oppose or consent to the sexual activity that occurs.”
That case, however, dealt specifically with a complainant who had lost consciousness prior to sex. The Supreme Court has not weighed in on how alcohol impacts consent. That’s where this case comes in.
“At the critical time when Mr. al-Rawi would have stripped (the complainant) of her clothes, the Crown has provided absolutely no evidence on the issue of lack of consent,” Lenehan concluded in his ruling. He continued that, given her blood alcohol level, the complainant “might very well have been capable of appearing lucid but drunk, and able to direct, ask, agree or consent to any number of different activities.”
The reaction was swift.
One petition concluded the judge “chose to ignore the laws of this province.” Another said his “ideas of consent are antiquated and dangerous.” A Facebook event for a protest calling for Lenehan to be disbarred, and that a new trial be ordered, called the decision “rape culture as law.”
That the Canadian justice system needs to do better when it comes to sexual assault is not a controversial topic — CBA National has previously explored how that can be done, and has looked into whether public understanding of the law needs improvement — but what about this case? Does the public have a point?
Keli Mersereau is a Vice President with the Criminal Lawyers’ Association, and she says that, even if the outcry is justified, they’re going about it all wrong.
“What I completely disagree with is that the public should be entitled to sway whether or not this judge is looked into by the judicial council, or that they should have some kind of sway as to what the judge should or should not do,” she told CBA National.
“We can’t become like the U.S., where public opinion and campaigning determines who gets to be on the bench.”
Mersereau says she has some sympathy for those who are outraged by the decision, but underscores that: “Unless you’re there, listening and hearing the facts, it’s difficult.”
“The difficulty is that if you do not have an understanding of the law — and, of course, most people don’t — and you don’t understand who has the burden and you’re not there to hear the evidence, it’s very easy to get up on a soap box, especially on social media, and decry what has happened,” she says.
Opponents will counter that the trouble rests with a poor understanding by too many judges of sexual assault laws. To address that, Interim Conservative Leader Rona Ambrose last month tabled a private members’ bill that would impose training in sexual assault law for lawyers applying for federally appointed judicial positions. The Judicial Accountability Through Sexual Assault Law Training Act would also require the Canadian Judicial Council to report annually to Parliament on continuing education offered.
Ultimately, Mersereau says, it is up to lawyer associations to register complaints with the CJC. That’s how the system is designed to work.
The Crown has announced it will appeal the verdict. The complainant could also go through a civil remedy — where the balance of probabilities, instead of the presumption of innocence, may work in her favour.
Mersereau says sexual assault is currently top-of-mind for the public, so “any time there is something in the courts where something seems a bit strange or people think it doesn’t make sense, it’s going to get a lot more attention”
She issues a warning to the public that has become old hat, as defence counsel try to explain cases like the acquittal of Jian Ghomeshi to a frustrated public: That the presumption of innocence must be paramount.
“It needs to be.”