Minister slams judge's sex assault comments, says 'clearly there's lots of work to be done'

Community Services Minister Joanne Bernard says she shares the outrage mounting in response to a Nova Scotia judge's comment that "clearly a drunk can consent."

Judge Gregory Lenehan made the remark on Wednesday as he acquitted a Halifax cab driver of sexually assaulting a drunk passenger who was found unconscious in the back of his cab.

• Read the full decision from Judge Gregory Lenehan

"It's so discouraging for me to stand here in 2017 and worry about the message that this decision sends to victims of sexual violence, and also to have to reiterate that a drunk 'yes' is a big 'no,'" said Bernard, who is also the minister responsible for the Advisory Council on the Status of Women Act.

Bernard has presided over a three-year, $6-million sexual violence strategy where one of the linchpins is a focus on informed consent. Lenehan's comments show there needs to be even more education, retraining and awareness at all levels of society, including the justice system, said Bernard.

"Clearly, clearly there's lots of work to be done."

'Hazy' definition of drunk

Susan Wilson, the sexual assault nurse examiner co-ordinator at the Avalon Sexual Assault Centre in Halifax, said there needs to be better definitions and understanding about consent law as it relates to a person who has been drinking.

The legal and medical definitions of what constitutes being drunk are "hazy," said Wilson.

"It's being able to determine whether somebody is able to make the appropriate decisions," she said. "It's difficult when everyone has a different level of alcohol intake that they can take and still make a decision."

Despite the difficulty, however, Wilson said the details of this case are disturbing. She noted the woman was found unconscious by a police officer.

"This is a woman who has urinated in her pants and when you look at things like that, does a woman normally engage in consensual sexual activity with somebody with urine-soaked clothing?"

Sending a dangerous message

Elizabeth Sheehy, a professor at the University of Ottawa's faculty of law and an expert in sexual assault law, said Lenehan's comments send a dangerous message.

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

Rebecca Stuckey, outreach and education co-ordinator at South House Sexual and Gender Resource Centre in Halifax, is likewise concerned about what she called a shocking and disappointing decision.

Consent when someone is drunk is not possible, said Stuckey.

"For a judge and someone in power to say that, 'Oh, she might not have been intoxicated enough,' is incredibly disheartening."

This, coupled with a recent case in Newfoundland where a police officer was acquitted of sexually assaulting a woman he drove while on duty, serves to shake people's confidence in the system and discourages victims from coming forward, said Stuckey.

She encouraged anyone struggling with the decision or needing support to contact the centre.

Requiring written decisions

Sheehy noted that because Lenehan issued an oral decision, it was only because there were reporters in the courtroom that his comments were picked up. She said she thinks the case adds support to a proposal by the Conservative Party of Canada that would require written reasons by judges in all sexual assault cases.

Interim Conservative leader Rona Ambrose said in a statement that requiring written decisions would be a way to hold judges accountable for their choice of words.

"Only through more transparency and accountability around sexual assault cases will we be able to work towards building more confidence in our justice system," she said.

"Right now, victims rarely report assaults or seek justice through the courts because some don't have the confidence the system will be fair to them."

Cameras not the starting point

Ambrose's Nova Scotia counterpart, Tory Leader Jamie Baillie, issued a statement calling for a full review of the laws around sexual assault.

Meanwhile, Bernard was frank when asked whether installing cameras in taxis might act as a safeguard for passengers.

"How about just cab drivers don't sexually assault their passengers? Let's start at that point."