‘A drunk can consent’ judge acquits another cab driver of sexual assault

Another Halifax cabbie has been acquitted of sexual assault in the latest incident of a woman alleging sexual crimes by a taxi driver only to have her case dismissed by Judge Gregory Lenehan. Thursday’s acquittal underscores what protesters say is a pattern of poor decisions by the judge, alongside low conviction rates for sexual assault across Canada and the U.S., and a lack of oversight in the Halifax taxi industry.

The provincial court judge ruled on Thursday that cab driver Houssen Milad could walk free, saying that although he believed the 26-year-old complainant was sexually assaulted in June 2016, the Crown had failed to prove Milad was the man who did it.

The ruling follows another controversial decision last March where Lenehan said “clearly a drunk can consent” as he acquitted cab driver Bassam Al-Rawi. In that case, a police officer found a woman passed out in the back of Al-Rawi’s cab, naked from the chest down, as the driver with his pants undone tried to hide her pants and underwear.

That decision sparked calls for Lenehan’s resignation and protests with women angry over low rates of conviction rates for sex assaults and calls to better regulate the Halifax taxi industry. Following public outcry, Nova Scotia Chief Justice Michael MacDonald said he would set up a committee to investigate Lenehan’s decision in the Al-Rawi case and decide whether to refer complaints to a disciplinary body.

“I really wish Lenehan wouldn’t be presiding over sexual assault cases at this point,” Chrissy Merrigan, who organized a protest of hundreds against Lenehan in March, told VICE News on Friday. “At the very least, I am glad he says he believes the victim and that she was credible and that it was the police who let her down.”

In the latest case, the 26-year-old woman testified that she took a Yellow Cab home at around 1:30 a.m. on June 4 from the corner of Argyle and Blowers, near a late-night destination for bar patrons known as Pizza Corner. She said when she reached her address the driver kissed her head, told her she was cute and groped her, according to reporters who were in court.

During the trial, 46-year-old Houssen Milad from Libya testified, “she wasn’t in my car.” The complainant testified her driver had told her his name was Houssen, he was from Libya, and he was in his late 30s. The driver gave her a business card with the name H. Milad on it.

But Milad’s GPS showed he took a different route than the one the complainant described, leading the judge to conclude the Crown had identified the wrong cab driver.

“There is no reason, based on what the Crown presented as evidence, to doubt Mr. Milad. It does not appear (the complainant) could have been his passenger,” the judge said, according to Metro News.

Lenehan said he believed the complainant was assaulted, but not by Milad. The judge slammed the Crown for doing a “disservice” to the complainant and the community by failing to conduct a proper investigation, according to a Metro News reporter who was in court for the ruling.

It’s not the first time Justice Lenehan has sided with a cab driver charged with sexual assault.

In March, his acquittal of Bassam Al-Rawi led hundreds of protesters to gather in a public square in downtown Halifax holding signs declaring “I believe you” and “fuck rapists.”

In that case, the evidence was quite different.

Unlike Milad’s case, where the complainant had a clear recollection of events, the complainant in Al-Rawi’s case was passed out in the back of the cab when she alleged he assaulted her.

In the wee hours of May 23, 2015, a police officer testified he found the woman unconscious and naked from her chest down in the back of Al-Rawi’s cab. The driver was in the reclined front seat with his pants undone. He tried to hide the woman’s urine-soaked pants and underwear. The complainant’s DNA was on the driver’s upper lip.

The complainant was drunk, with a blood alcohol level of between 223 and 244 milligrams in 100 millilitres of blood. Lenehan found in that case that the complainant had consented to sexual activity.

“A person will 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. This does not mean, however, that an intoxicated person cannot give consent to sexual activity. Clearly a drunk can consent,” his decision reads.

Another woman came forward to CBC shortly after the decision to say she, too, had been assaulted by Al-Rawi.

The Crown is appealing that decision, saying Lenehan speculated on the issue of consent and had erred in his application of the legal test for capacity to consent.

But the problem of conviction in sexual assault cases doesn’t end with one judge, women’s rights campaigners say. Courts in Canada are not consistent in where they draw the line on when someone is too drunk to consent, and Canadian law does not clarify where that line is. That’s why there’s also a movement to reform how the entire justice system deals with sexual assault — including a bill to make sexual assault training for federally-appointed judges mandatory. That bill would not affect provincially-appointed judges like Lenehan.

A written version of Lenehan’s oral decision in Milad’s case was not available from Halifax provincial court on Friday.

Critics of Lenehan, including Chrissy Merrigan, have said his judgements are part of a pattern of sexism. In 2015, he told a mother not to breastfeed in his courtroom, although breastfeeding in public is protected by the Nova Scotia Human Rights Act.

And in January 2015, he gave 12 months probation instead of jail time to a man who texted a photo of himself penetrating Halifax teenager Rehtaeh Parsons while she vomited. The photo later went viral, and the subsequent bullying drove the teenager to suicide — a story that drew international media attention. Before her death, Parsons told police the man had raped her, but that allegation was never proven in court.

To protesters who claim to speak on behalf of women in Halifax, Lenehan’s judgements are proof that nothing has changed since the Rehtaeh Parsons case.