Damian J. Penny

Lenehan cleared

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This was a) inevitable; b) legally correct; and, c) will not satisfy the mob.

The Nova Scotia provincial court judge at the centre of the controversial sexual-assault trial involving taxi driver Bassam Al-Rawi has been vindicated.

Judge Gregory Lenehan acquitted Al-Rawi of sexually assaulting an intoxicated female passenger in Halifax.

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In his March 2017 decision Lenehan said the Crown provided “absolutely no evidence on the issue of lack of consent.” The judge went on to add, “clearly, a drunk can consent.” That phrase set off protests and led to 121 complaints about his conduct.

A decision released today by the Executive Office of the Nova Scotia Judiciary states, “The uses of ill-considered words by a judge in a decision can undermine the public’s confidence in the judiciary.” But “the test for judicial misconduct has not been met.”

In its decision, the three-member review committee cited Lenehan’s statement that he was trying to use direct language that Al-Rawi could understand. Al-Rawi relied on an Arabic-to-English translator for his trial.

The committee noted that the expression “clearly, a drunk can consent” is “not an incorrect statement of the law.” Lenehan told the committee he used the phrase when referring to any person in a state of drunkenness, not the complainant specifically.

“[Lenehan] was focused on the presumption of innocence and the requisite standard of proof. While he committed errors of law as found by the Court of Appeal, and could have more carefully reflected his reasons, the committee could not find evidence to attribute the judge’s approach to bias,” the ruling states.

“This committee closely examined the allegations of gender bias or influence arising from attitudes based on stereotype, myth or prejudice that were raised by the complainants.”

The review committee noted that had Lenehan said “a drunken consent is a valid consent,” or “intoxicated person can nonetheless consent,” he would have made the same point without sounding personal or harsh.

There are certainly some cases where a judge’s behavior is so egregious that removal from the Bench is warranted.  (I’m looking at you, Robin Camp.)  But law professor Erwin Chemerinsky, commenting on an effort to recall a California judge who imposed a lenient sentence in a sexual assault case, warns against targeting judges who make unpopular decisions:

Judges should decide cases, including the difficult task of sentencing criminal defendants, according to their best view of the law and facts. This time the recall is for a judge who was too lenient in imposing a sentence, but next time it could be for a judge who excludes evidence in a high-profile case because the police violated the Fourth Amendment or for a judge who orders a school to be desegregated and upsets the voters.

Efforts to recall judges for light sentences encourage judges to impose maximum penalties out of fear that anything else could cost them their positions. After all, no one has begun a recall when a judge imposed an outrageously high punishment, such as in the first case I argued in the Supreme Court where my client received a sentence of 50 years to life under California’s “three strikes law” for stealing $153 worth of videotapes.

Judicial independence is crucial to upholding the rule of law, and history shows that it is lost when judges fear removal for their unpopular decisions.  This is not a new realization. One of the grievances enumerated in the Declaration of Independence was how the King of England effectively controlled the judiciary by removing judges. Several years ago, when I spoke in Russia, judges there told me how they would be removed if they did not rule as the prosecutor and the government wanted.

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A California Court of Appeal can overturn a sentence if it finds that it was an “abuse of discretion.” If the prosecutor believes a sentence is too lenient, the remedy is to appeal.

But the answer is not to remove a judge from the bench because we dislike the sentence. We all need judges to decide cases, including sentencing defendants, without fear that an unpopular decision will cost them their jobs.

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