The Judicial Council for Territorial Court Judges has discontinued complaint proceedings against a judge who resigned ahead of his misconduct hearing.
Donovan Molloy, who was appointed to the Territorial Court in February 2019, was facing a complaint filed in 2021 by Martha Chertkow, a former Crown lawyer in the NWT.
A hearing into that complaint, which was delayed several times, was finally set to begin on July 24 this year. Molloy, however, tendered his resignation to the NWT’s justice minister the day before, citing health reasons.
Lawyers representing Molloy argued that the judicial council – a five-person panel chaired by Justice Karan Shaner – no longer had the jurisdiction to continue the hearing as he was no longer a sitting judge.
The lawyer presenting the case against Molloy agreed, while the lawyer representing Chertkow said failing to continue the hearing would cause “severe harm” to the administration of justice in the NWT.
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In a written decision on Friday, the judicial council found it did not have the jurisdiction to continue hearing the complaint.
“It has been a very long and difficult experience for all involved,” the decision stated. “The lack of a definitive resolution makes it even more so.”
The judicial council added that even if it did have the jurisdiction to hear the complaint, it would not do so as “there was no reasonable prospect” Molloy could meaningfully participate. Three psychiatrists and Molloy’s family doctor provided evidence that he was too physically and mentally ill to carry out his judicial duties.
“To hold a hearing in such circumstances would offend a pillar of procedural fairness, namely the right to be heard, which includes the opportunity to be heard,” the decision read. “This would not only be unfair to Molloy, but to the complainant, the public and the judiciary as an institution.”
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Cabin Radio has approached Chertkow for comment.
During his time on the NWT bench, Molloy was critical of the territory’s justice system, often speaking out against joint sentencing submissions that he believed were unfit.
The complaint alleges Molloy engaged in misconduct in 13 separate incidents while presiding over NWT court proceedings between December 2019 and May 2021. He is alleged to have improperly pressured Crown counsel to ignore guidelines issued by the director of public prosecutions, accused a Crown lawyer of improper conduct and threatened to report her to the law society, referred to an unrepresented accused as “one of those morons,” and accused an RCMP constable of theft.
The complaint also references an incident in Hay River three years ago in which Molloy refused to allow a Crown prosecutor assigned to the court circuit to appear by phone after she missed her flight. As a result, he dismissed dozens of criminal charges.
Several of those cases were sent back to court by the NWT Supreme Court and Court of Appeal, which found Molloy’s decision to be “unreasonable.”
A second, similar misconduct complaint against Molloy was filed by the Public Prosecution Service of Canada in May 2022.
Read the decision
Correction: November 4, 2023 – 10:33 MT. Because of an editing error, this article initially referred to Karan Shaner as the NWT Supreme Court’s chief justice. She isn’t, it’s Shannon Smallwood.
