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Justice

Judge criticizes leaking of ‘unfounded and unproven’ judicial complaint

Last modified: May 3, 2022 at 10:01am


An NWT Territorial Court judge who abruptly and indefinitely left the bench last week has criticized the leaking of a judicial complaint against him.

Judge Donovan Molloy tweeted on Sunday: “Is the leaking of the unfounded and unproven repulsive comments in the complaint document a form of gaslighting, after I finally found the courage to publicly discuss my mental illness?”

In a 20-minute statement delivered in open court on Friday morning, Molloy criticized both his colleagues and the system in which he worked.

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In the same statement, Molloy told the court of a complaint about him filed last year to the territory’s Judicial Council by a now former Crown prosecutor, focusing on a matter that occurred in January 2020.

On Saturday, the CBC reported it had received a copy of the document on April 21 and a reporter had “verified the document’s authenticity” with three separate lawyers in the territory.

According to the CBC, the 40-page complaint – not seen by Cabin Radio – details several incidents of “alleged misconduct in the courtroom” by Molloy between his appointment in 2019 and the summer of 2021, before he took an extended leave for mental health reasons.

The complaint reportedly involves multiple court cases and lawyers and alleges personal attacks took place that “at times left Crown lawyers in tears and physical distress.”

In an email sent to the Law Society of the Northwest Territories on Saturday – copied to CBC North’s management – Molloy stated he “was sadly surprised to go online today and read specific details of a judicial complaint that includes some rather ugly allegations.”

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The allegations in the judicial complaint, Molloy wrote, “have already lowered my standing in the legal and larger communities” and “go beyond my judicial conduct to my very character and worth as a person.”

Molloy said only his lawyer, judicial officers, and the complainant and her lawyer had possession of the complaint document.

The judge had touched on issues “of the utmost importance” to the Law Society of the Northwest Territories, its president said in a statement provided after this article was first published.

“The competency of lawyers, mental health in the profession, and reconciliation are important priorities,” stated Sheldon Toner, noting the society requires all lawyers to receive Indigenous cultural competency training.

“And the profession as a whole has begun paying closer attention to mental health to prevent overwork and burnout while also protecting the public.”

In terms of the administration of justice, the law society “participates in conversations with the independent judiciary” and promotes access to justice for all northerners, Toner stated.

“There are challenges from time to time, to be sure, and lawyers in the Northwest Territories regularly rise to the occasion and seek opportunities to continue efforts in improving the administration of justice.”

‘One of the most blunt people’

The Judicial Council is chaired by Supreme Court Chief Justice Louise Charbonneau and includes Molloy’s boss, Chief Judge Robert Gorin. On Friday, Molloy said both senior judges had attempted to interfere with his judicial independence during his time on the bench.

“I appreciate people can disagree with me,” Molloy said in his departure statement on Friday. “We should be able to disagree with each other … without being disagreeable.

“I am one of the most blunt people you will encounter – or ever will encounter – in your life. I sometimes don’t realize the emotional components or the emotional way people receive my comments. But that’s it.”

On being hired, he said, “I didn’t falsely advertise myself in any way.”

On Friday, Molloy said his attempts to secure a meeting with justice minister RJ Simpson through a deputy minister were rebuffed.

“Their position as of yesterday is that this is all simply an employment issue, and that it does not even warrant their discussing it with the attorney general,” said Molloy.

On Monday, a spokesperson for the territorial government stated the Territorial Court operates independently from the Department of Justice as the judicial branch of government.

“As such, the department and minister are not in a position to comment on workplace issues in the judicial branch of government described by Judge Molloy in his statement,” spokesperson Agata Gutkowska wrote in response to emailed questions.

Molloy had also called for a change to the territory’s justice system that would introduce formal Gladue reports for Indigenous offenders when required, considered by advocates to be more meaningful than standard pre-sentence reports. Minister Simpson said they aren’t needed.

“Although Gladue reports are not used in the NWT, our justice system includes Gladue principles in many areas of service delivery to ensure our initiatives and programs not only comply with the Gladue decision, but respond to the needs of the residents we serve,” the minister said in an emailed response.

“The territory’s justice system has evolved over the years and will continue to improve as we work towards advancing our projects and priorities.”

Molloy himself filed similar complaint

NWT Chief Prosecutor Alex Godfrey told Cabin Radio his office had no control over the Judicial Council complaints process and he had not seen a transcript of “the precise wording” of Molloy’s Friday comments.

Molloy often diverted from a prepared statement in his speech, witnessed by approximately 20 prosecutors and defence lawyers.

“Unfortunately, our office is constrained due to our PPSC Deskbook,” Godfrey said, referencing the federal policy guide that states Crown counsel should not comment on “any comments” made by the judge.

Regarding Molloy’s assertion that time constraints on lawyers – especially when flying into communities – set the stage for “an unacceptably high risk of wrongful convictions and other miscarriages of justice,” Godfrey again pointed to the policy manual.

“Our office will continue to serve the public in a professional manner,” he stated, “as we rely upon the guidance of our publicly available PPSC Deskbook, which specifically outlines our responsibilities in relation to the decision to prosecute and the prevention of wrongful convictions.”

The complaint against Molloy finds him on the receiving end of a process he himself once initiated as Newfoundland and Labrador’s director of public prosecutions.

In 2014, Molloy filed a judicial complaint against a provincial court judge, John Joy, for comments “unbecoming of a judge” that included “unfair and unfounded remarks and allegations” about prosecutors.

The province’s Legal Aid Commission filed a similar complaint, triggering a seven-year process that ended last year with Joy, now retired, dropping his appeals and accepting a reprimand.

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