Appeal court denounces judicial misconduct
Visiting judge’s refusal to stay charges in drug-trafficking case sent wrong message about disgraced colleague’s improper contact with witnesses, says chief justice
A visiting judge’s refusal to stay drug-trafficking charges against a Geary man after the original judge had engaged in misconduct in the case sent the wrong message, New Brunswick’s top judicial official said Tuesday.
A panel of three New Brunswick Court of Appeal judges, led by Chief Justice Marc Richard, granted an appeal brought by Scott Alexander Morrison, 41, of Geary, issuing a stay in a drug-trafficking prosecution against him last year.
Morrison had been charged with nine charges - including four counts of possession of drugs for the purpose of trafficking - stemming from Aug. 7, 2021, events, and he stood trial before Fredericton provincial court Judge Kenneth Oliver in 2022 on those allegations.
The defence had challenged the admissibility of evidence discovered in a search of a vehicle, and a hearing had been held last summer on that issue.
But it was discovered that ahead of Oliver’s decision on that evidentiary issue, he contacted the two police officers who’d testified before him previously but outside of court, to inquire about elements of the search.
The defence had filed an application for Oliver to be removed from the case and for a stay of the charges as a result of the misconduct. But on Oct. 3, 2022, Oliver refused to recuse himself and ordered a mistrial instead.
Judge Marco Cloutier, chief judge of the provincial court, suspended Oliver with pay that same day as a result of that improper witness contact, and he remains suspended pending a judicial council hearing into that misconduct.
Judge Jeff Lantz, chief judge over the P.E.I. provincial court, was brought in late last year to hear the new trial, which amounted to him reviewing the transcripts and evidence from Morrison’s first trial on the August 2021 charges.
Defence lawyer Ben Reentovich brought the motion for the stay of proceedings before Lantz, and prosecutor Brian Munn, then the senior Crown for the Fredericton district, agreed with the defence motion.
Both said Oliver’s misconduct was egregious and that a stay was necessary to maintain people’s confidence in the criminal justice system.
But Lantz declined to issue the stay, arguing that Oliver’s suspension was enough to restore people’s faith in the courts.
As a result of Lantz’s decision, the defence, with the consent of the prosecution, offered guilty pleas to lesser charges, including simple possession of cocaine, possession of stolen property and failure to stop for police.
Lantz sentenced Morrison to three months of incarceration for those lesser crimes. The offender had been looking at a length prison term instead for drug trafficking.
Nevertheless, Morrison, through his legal counsel, filed a notice of appeal of Lantz’s decision, and the case was before the New Brunswick Court of Appeal on Tuesday afternoon.
Morrison, who’s serving a prison term for other crimes, wasn’t present in person or remotely for the proceedings Tuesday.
‘The public would be shocked to know this was going on’
It was clear early on that the province’s top court was on board with Morrison’s position, as Richard told Reentovich the court didn’t need to hear from him on it.
Furthermore, the Office of the Attorney General, as represented by Joanne Park, also agreed with Morrison’s position, noting a stay was in order.
“This needs to be denounced outright,” the chief justice said, referring to Oliver’s out-of-court contact with witnesses about the case.
“The public would be shocked to know this was going on … They thought that this would get loudly denounced, but then it wasn’t.”
Richard said the panel was allowing the appeal, setting aside the convictions for the August 2021 charges and entering a stay of proceedings instead.
Court of Appeal Justice Barbara Baird said there was another aspect of the case that had to be addressed.
Court heard previously that the police officers whom Oliver had contacted after they’d testified didn’t know the judge wasn’t allowed to do that, and they hadn’t reported it when it happened.
It was only during a conversation with another prosecutor when an officer mentioned offhand that Oliver had reached out in the Morrison case that the misconduct came to light.
“This has troubled me,” Baird said, noting she would have expected the police to realize it represented a serious breach of judicial integrity.
“The very fact that an accidental conversation allowed this to come to light is a concern,” she said.
“I share that concern,” Richard said.
Morrison is in federal prison, as he was sentenced to six years, less credit for remand time, late last year for a number of crimes he committed in June 2021, including counts of possession of hard drugs for the purpose of trafficking.
Morrison has filed an appeal in that case as well.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Very informative. Thank you