NWT judge resigns on eve of misconduct hearing

A Northwest Territories judge has resigned ahead of his misconduct hearing, raising questions over whether it can proceed.

Donovan Molloy, who was appointed to the Territorial Court in February 2019, tendered his resignation to the NWT’s justice minister on Sunday, citing health reasons.

That resignation was accepted and his retirement took effect on Monday morning.

Molloy was accused of misconduct in a complaint filed to the Judicial Council for Territorial Court Judges in 2021 by Martha Chertkow, a former Crown lawyer in the NWT. According to the CBC, which said it had obtained a copy of the complaint last year, the complaint accused Molloy of a pattern of “intimidating, insulting and belittling” behaviour. Molloy has said the claims are “unfounded and unproven.”

A hearing into that complaint, delayed several times, was finally set to begin on Monday morning when the issue of Molloy’s resignation was raised.

“It’s an understatement to say it’s highly inconvenient,” Brock Martland, Molloy’s lawyer, said of the timing.

“We regret that that’s the case.”

Martland and John Gordon, who both represent Molloy, argued the judicial council no longer has jurisdiction to continue the hearing as, under the Territorial Court Act, disciplinary proceedings only apply to sitting judges.

Simon Renouf – the lawyer presenting the case against Molloy on behalf of the judicial council – agreed, adding proceeding would be moot given the options available if misconduct is found. Under territorial legislation, the judicial council can warn, reprimand or suspend a sitting judge who is the subject of the complaint, or recommend they be removed from office.

Evan McIntyre, the lawyer representing Chertkow, disagreed. He argued the hearing should continue as Molloy’s conduct caused “severe harm” to the administration of justice in the NWT.

“Those wounds remain, whether he has resigned or not,” McIntyre said.

He said if misconduct is found, the judicial council could still reprimand Molloy. He pointed to a case in Newfoundland and Labrador where Molloy was the complainant and a retired judge was reprimanded.

Martland countered that a multi-day hearing using public resources would be “quite a price to pay” for a reprimand. He added that a retired judge “may have no appetite” to defend themselves during a misconduct hearing, which he argued could lead to a “lopsided” or “sham” process.

Justice Karan Shaner, who chairs the judicial council, requested written submissions from all parties, which they agreed to provide by September 1. She did not set a date for the council’s decision regarding whether the hearing should proceed.

‘Abuse of position’

In an email to Cabin Radio, longtime northern defence lawyer Peter Harte described Molloy as “a bully and abusive of his position, both with accused and counsel.”

“He should have simply resigned,” Harte wrote. “Instead, he waited until the last minute after everyone prepared for the hearing and incurred flight and accommodation expense to get to YK.”

Before moving to the NWT, Molloy had worked in prosecutions in Newfoundland and Labrador since 1994. He accepted an appointment as the province’s information and privacy commissioner in 2016.

During his time on the bench in the NWT, Molloy was critical of the territory’s justice system, speaking out against joint sentencing submissions that he has said were unfit.

In November 2020, he made headlines for dismissing dozens of criminal charges in Hay River after the Crown prosecutor assigned to the court circuit missed her flight.

Several of those cases were sent back to court by the NWT Supreme Court and NWT Court of Appeal, which found Molloy’s decision to be “unreasonable.”