Yellowknife's courthouse building at night. Ollie Williams/Cabin Radio
Citing a “hostile work environment,” outspoken NWT Territorial Court Judge Donovan Molloy stunned onlookers on Friday with what could be his last words from the bench.
Molloy said several factors had affected his physical and mental health since he joined the court in 2019, and he had become increasingly concerned about the “overall administration of justice” in the NWT.
Too frequently, he said, systemic discrimination against the NWT’s Indigenous peoples was preserved.
“All I’ve ever asked for is engagement. I haven’t demanded that anybody make radical changes to things that I unfortunately, as an outsider, have seen since coming here,” an emotional Molloy told a court full of prosecutors and defence lawyers in attendance for routine matters.
Molloy said lawyers often don’t have the appropriate amount of time to be prepared for court “to a standard that they would prefer,” which sets the stage for “an unacceptably high risk of wrongful convictions and other miscarriages of justice.”
He said he had shared his concerns with Chief Judge Robert Gorin and others, and frequently raised them on the record in court.
Molloy said the territory’s attorney general, justice minister RJ Simpson, had refused to meet and discuss his concerns such as the preparing of proper Gladue reports for Indigenous offenders.
“I was met with silence,” he said, referring to Simpson’s staff and senior Justice Department officials. “They refused to even pass on my request for a meeting.”
Molloy said he sought a lawyer specializing in employment law last year to address his claims of workplace harassment but, before any work could be done, he “suffered a complete mental breakdown.”
He said his “impaired abilities” to gauge his own level of mental fitness prevented him from taking a break earlier in the year.
He eventually took a break for several weeks, only returning to finish cases in progress.
Molloy described having “broken down a number of times” and sobbed in front of court staff. On Friday, he spoke haltingly and at times appeared almost in tears.
‘I hold different ideas’
The judge said he found it increasingly challenging, upon his return to the bench last fall, to accept lawyers appearing in front of him with differing “standards of conduct.” He also faced a judicial complaint filed by a now former Crown prosecutor regarding a matter that occurred in January 2020.
Molloy said he believes some aspects of the NWT’s justice system are inappropriate and contribute to an appearance of bias, such as the practice of judges being driven to court sittings in small communities by RCMP in police vehicles.
However, he said, he could not persuade anyone to listen to those concerns. He claimed that rather than starting a “dialogue” on the matter, the chief judge simply took Molloy off the circuit calendar.
This contributed, Molloy said on Friday, to “bad feelings” between him and his colleagues.
“I hold different ideas than some of my fellow NWT judges, and it led to an ever-increasing feeling of being ostracized … and that the chief judge was unacceptably attempting to interfere with my judicial independence,” he said. (Neither the chief judge nor others mentioned were in attendance on Friday. Responses from those involved are being sought.)
“I believe I have not been unreasonably demanding in my differing ideas,” Molloy continued.
“Being unfairly targeted for your different ideas and views is intolerable. Being a judge is crushingly lonely and being a judge who has no other judges to banter with … to de-stress … skewered my sense of guilt and well-being.
“If this is my last day as a judge, I will not abandon the NWT and, unshackled from my judicial inability to express public opinions, I will advocate for changes that lessen the amount of systemic discrimination that Indigenous people are subjected to under current guise of the administration of justice.”
Molloy thanked people he said have come forward to thank him for speaking out on matters that he felt need to be changed.
Intently watching Molloy’s 20-minute statement via video link was Joey James Chocolate, who is at the centre of a legal fight between Molloy and the Department of Justice.
Last month, the judge ordered the preparation of a formal Gladue report for the Behchokǫ̀ man, who is awaiting sentencing.
Standard pre-sentence reports, prepared by justice department staff, are not formal Gladue reports. The standard reports, which normally assess the likelihood that someone will reoffend, often carry only a small section dedicated to Gladue “factors.”
“If it is in my jurisdiction, then it’s up to me to decide whether I order a Gladue report,” Molloy said last month to justice department lawyer Roger Sheppard, representing Leanne Gardiner, assistant deputy minister for the solicitor general.
“I ordered a Gladue report … but you tell me the solicitor general is only going to give me an ordinary PSR [pre-sentence report]? You’re here on behalf of the executive of government. Are you really going to tell me you won’t do it?”
On Friday, Molloy was told a Gladue report writer has contacted Chocolate and a report should be ready by May 6, in advance of Chocolate’s next scheduled court appearance on June 3.