Misconduct hearing for NWT judge now expected in May

Preliminary motions are due to be heard this week as a misconduct complaint against an NWT judge is further delayed on the grounds of his health.

Donovan Molloy, who has been on leave for most of the past year, is awaiting a hearing in front of a five-person panel of the Judicial Council of Territorial Court Judges.

That hearing was originally scheduled for November but is now expected to occur in May.

The original complaint against Molloy alleges personal attacks took place in court that “at times left Crown lawyers in tears and physical distress.” Molloy has said the allegations are unfounded and unproven, and further asserts that a “hostile work environment” in judges’ chambers meant his mental health degradation was not taken seriously.

Allowing a second delay in proceedings last month, Justice Karan Shaner – chair of the judicial council – said Molloy had sought an “additional indefinite adjournment based on mental and physical health issues which prevent him from instructing counsel and from participating meaningfully in the process.”

According to a transcript, Shaner said a doctor assessing Molloy had concluded the judge was “incapable of participating in this process for the foreseeable future.”

But Shaner said repeated requests for adjournments presented “significant issues,” not least the question of fairness to the complainant, who first filed a complaint in June 2021.

“The public has an interest in seeing complaints resolved within a reasonable time,” Shaner added.

Finding that Molloy had presented “insufficient details to support the physician’s conclusions” with respect to his capacity, Shaner said the panel could grant a further adjournment but the hearing would have to proceed by May. Dates of May 15-19 have since been set.

“Any additional adjournment requests by Judge Molloy will have to be accompanied by detailed evidence satisfying the panel that Judge Molloy is unfit to participate, even with reasonable accommodations,” Shaner said.

Molloy declined to comment when approached by Cabin Radio earlier this month, suggesting he would wait for this week’s rescheduled preliminary applications.

He faces 13 allegations of misconduct spanning a period between August 2019 and May 2021.

The allegations, recently published by the judicial council, can be summarized as follows:

• two incidents on a Tuktoyaktuk court circuit in which he is accused of misconduct in the way he treated people accused of crimes;
• a December 2019 incident in Yellowknife in which Molloy is said to have “improperly pressured Crown counsel to ignore guidelines issued by the director of public prosecutions;”
• January 2020 incidents in which Molloy “accused Crown counsel of improper conduct and threatened to report her to the Law Society;”
• a November 2020 incident in which Molloy infamously dismissed more than 50 charges against 14 people for “want of prosecution” after the Crown prosecutor assigned to the Hay River court circuit missed her flight, decisions alleged to have been “contrary to his commitment to perform his role in such a manner so as to maintain the confidence of the public in the administration of justice;”
• a December 2020 case in which Molloy is alleged to have referred to an accused person as “one of those morons,” followed by another in which he is said to have mocked an accused person as “the epitome of normal,” and another in which he is alleged to have mishandled proceedings related to bail and sentencing;
• a February 2021 incident in which Molloy is reported to have accused an RCMP officer of theft, and another two weeks later in which he is said to have exhibited “demeaning treatment of Crown counsel,” plus two incidents in May that year involving unspecified “allegations against Crown counsel;”
• a dispute over a lawyer appearing by video link, also in May 2021; and
• a further allegation of “demeaning treatment” of Crown counsel later that month.

In a request for standing in the case, the Public Prosecution Service of Canada said it had separately filed a complaint about Molloy’s conduct with the judicial council in 2022, without being aware of the original complaint from a former Crown prosecutor – or, at least, of that complaint’s contents.

Molloy used to be a senior justice official in Newfoundland and Labrador. Since becoming an NWT judge in 2019, he has been at odds with a territorial system he says has “an unacceptably high risk of wrongful convictions and other miscarriages of justice.”

Molloy has previously said he sought a lawyer specializing in employment law in 2021 to address his claims of workplace harassment but, before any work could be done, he “suffered a complete mental breakdown.”

He said there had been “bad feelings” between him and his colleagues and his judicial independence was being challenged by superiors.

After a heart attack in 2022, Molloy said he planned to “rest and recover fully” before working to clear his name.

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Correction: February 20, 2023 – 9:15 MT. This article originally stated that the Public Prosecution Service of Canada had filed a complaint in 2021. In fact, the PPSC filed its complaint in 2022 but misstated the year in documentation it provided to the judicial council, on which this report relied. Additionally, we have updated this article to reflect that the PPSC’s broader wording in its documentation allows room for some interpretation. Whether the PPSC was unaware of the original complaint against Molloy or simply unaware of the complaint’s contents is unclear, and this article has been updated to reflect the nuance of that.