Drunken sex in Nova Scotia

Clearly, a drunk can consent to sex. Countless drunks do consent, cheerfully and eagerly, every Saturday night in Nova Scotia. To claim otherwise misstates the law and ignores everyday human experience.

Many of those reading this post have at one time or another volunteered for sex when their blood-alcohol level lay north of .08%. Some of the 121 people who filed formal complaints against Provincial Court Judge Gregory Lenehan have themselves committed canoodlery while tipsy. A few may owe their very conception to a confluence of hormone and ethanol. Sex and drink go together like cheese and cracker. These are well known facts of life.

And yet, in the wake of his blunt but accurate comment that, “clearly a drunk can consent,” Judge Lenehan stood condemned as a judicial monster who must be hounded from the bench—all for stating something anyone who thinks for a minute knows to be true. Journalists solemnly conveyed the mob’s denunciations with furrowed brows that belied the fourth estate’s time-honored recreational proclivities.

None of this is to say Judge Lenehan was right to acquit Bassam Al-Rawi, the cab driver police found with an insensate woman in the back of his cab. Indeed, he was wrong. The Court of Appeal quite properly overturned the acquittal and sent the case back for retrial.

The problem with Lenehan’s decision was not his assertion that a drunk can consent. The problem was that police caught Al-Rawi red-handed in thd act of sexually touching an unconscious, incontinent woman. Clearly a drunk can consent, but equally clearly, an unconscious woman cannot.

Yesterday, after a painstaking review of five cases and one courtroom incident involving Judge Lenehan, a three-person judicial Review Committee dismissed all 121 complaints against him. The decision, written by Provincial Court Judge Frank Hoskins, tiptoed around the tender sensibilities of Judge Lenehan’s axe-grinding critics. It took note of a few judicial errors found by the Court of Appeal, but found “no evidence of impermissible reasoning or bias.”

The test for judicial misconduct has not been met. No outcome other than dismissal of the complaints is warranted to maintain the confidence of the reasonable, dispassionate and informed public, who are fully appraised of the fundamental legal principles at play in the criminal justice system.

The mob demanded Judge Lenehan’s removal from the bench. The bench stood up to the mob. That’s a good thing for the rule of law. Now let’s get on with the retrial, and hopefully a different outcome.