Drug offender takes judge's misconduct issue to appeal court
A visiting judge's refusal to stay charges over judicial transgression at the heart of case filed before New Brunswick's top court
A Geary man doing prison time for drug-trafficking crimes is appealing his convictions on some minor charges, arguing they should have been stayed due to judicial misconduct.
Scott Alexander Morrison, 40, of Branch Road in Geary, was recently sentenced to almost six years in prison, less credit for time spent on remand. The most serious crimes leading to the lengthy sentence were possession of various drugs for the purpose of trafficking in June 2021.
However, three months of Morrison’s 58-month sentence stemmed from events of Aug. 7, 2021, in a prosecution that led to the suspension of a provincial court judge over allegations of judicial misconduct.
Judge Kenneth Oliver was suspended with pay Oct. 3 after it was discovered that he’d had contact with two police witnesses to ask them about a vehicle search that was a key element in the case.
When defence lawyer Ben Reentovich learned of that communication with witnesses in the summer of 2022 ahead of a decision on admissibility of evidence in the case, he applied for Morrison’s Aug. 7, 2021, charges to be stayed, arguing Oliver’s conduct merited the extreme measure.
Though the defence asked for Oliver to recuse himself and allow another judge to rule on the stay application, Oliver ruled he was seized with the case and ordered a mistrial instead on Oct. 3 - the same day he was suspended from the bench.
Out-of-province judge
That led to the case being restarted before another judge, and provincial court Chief Judge Marco Cloutier brought in an outside judge - Judge Jeff Lantz, chief judge of the Prince Edward Island provincial court - to review the transcript of the earlier proceedings and to preside over Morrison’s application to stay the charges.
But despite the fact the Crown agreed the stay was necessary to restore trust in the justice system, Lantz denied the application, finding that Oliver’s suspension and ongoing disciplinary review were sufficient to address any concerns over judicial misconduct.
After that ruling, Morrison - who was facing drug-trafficking allegations and other serious charges - pleaded guilty to lesser, included offences, such as simple possession of cocaine, possession of stolen property and failure to stop for police, leading to a three-month term of incarceration for those crimes.
However, Reentovich filed a notice of appeal Dec. 22, asking the New Brunswick Court of Appeal to overturn those convictions and to enter the stay of the charges as originally requested.
That notice alleges Oliver and Lantz both erred in law when handling the stay application
"Judge Oliver erred in law in determining that the original stay application, filed in provincial court on Sept. 27, 2022, could not be heard by a different judge," the notice states.
"Judge Oliver breached procedural fairness by making a determination on the application before him without hearing representations from either party."
It also argues that Lantz erred by finding the disciplinary actions taken against Oliver addressed the misconduct sufficiently.
No date has been set as yet for the appeal to be heard.
Jail assault
Oliver’s misconduct wasn’t the only unusual turn of events in the recent prosecutions against Morrison.
A different court proceeding revealed that Morrison was assaulted by jail guards while he was on remand as he awaited the outcome of the prosecutions against him.
Judge Cameron Gunn found Morrison guilty of the June 2021 drug offences after trial last fall, leading to a lengthy prison term, as Morrison had prior convictions for drug trafficking.
But Reentovich applied for a sentence reduction for his client, arguing Morrison had been assaulted by correctional officers at the Saint John Regional Correctional Centre in September while on remand on the drug charges.
To support that application, Reentovich subpoenaed the province’s director of corrections to produce video from the jail of the Sept. 27 incident.
The government then asked for the public to be excluded from the courtroom when the videos were played for those videos to be sealed to keep them from the public permanently.
Gunn denied that application, finding it would violate the open-court principle and that the province failed to back up its claims the videos would violate inmate privacy and compromise security protocols at the jail.
The judge found the guards had assaulted Morrison as alleged, and he reduced Morrison’s sentence by four months as a result.
The Department of Justice and Public Safety - which oversees New Brunswick’s jails - has declined to reveal if correctional officers faced disciplinary action over the assault.
While it’s unclear if the guards involved in the incident faced any discipline on the job over the melee, the Fredericton Independent was able to confirm there was no legal fallout for them.
Saint John Police Force spokesperson Staff Sgt. Sean Rocca said he couldn’t say if there was a police investigation into the Sept. 27 incident at the jail.
“It does not appear from our records that any charges were laid in this matter,” he told the Independent.
You can contact Don MacPherson at ftonindependent@gmail.com.
As the mother of Scott even thought he did what he did he doesn't deserve to be treated like this in court to be judged by judge Oliver he did wrong when he asked the 2 police officers questions about Scotts case which is for the courts. This is a miscarriage of justice and he only suspened on oct 3 just before going to and WITH PAY WHAT A BUCH OF CROCKOF BS. HE SHOULD BE THROUGHT OUT OF THE COURT AND DISBARED, AS FOR SCOTT HE IS DOING HIS TIME AND HOPFULLY LEARNED HIS LESSON, BUT NOT BUY A CROOKED JUDGE OLIVER HE SHOULD HAVE IS APPEAL APPROVED .