Judges should be held accountable - anti-maskers
Sean Kenney and Mitchell Albert sought to challenge small-claims adjudicator’s finding that provincial court Judge Kenneth Oliver is immune from being sued
Two New Brunswick men active in the movement protesting precautionary pandemic restrictions say they just want a chance for their case against a provincial court judge to be heard.
Sean Patrick Kenney, 27, of New Maryland, and Mitchell Albert, 25, of Dieppe, filed a small-claim lawsuit against Fredericton provincial court Judge Kenneth Oliver last year, but adjudicator Matthew Cripps dismissed their court action in October.
Cripps accepted arguments from Oliver’s legal counsel that the Provincial Court Act is clear that judges can’t be sued for actions or decisions they make from the bench.
Albert and Kenney filed an appeal of that small-claims decision with the Court of King’s Bench, and Justice Terrence Morrison heard arguments on the appeal at the Burton Courthouse on Wednesday.
About two dozen observers filled seats in the courtroom gallery Wednesday in support of Albert and Kenney.
At the outset, Morrison emphasized the appeal hearing wasn’t meant to be a new trial, but rather to determine if Cripps erred in his decision to dismiss the case by finding it was barred by statute.
Supreme Court of Canada precedents
Albert opened his arguments by citing case law that holds that government agents can be held liable for unlawful actions taken during the course of their official capacities.
He said in R v. Eldorado Nuclear Ltd. and Uranium Canada Ltd., the Supreme Court of Canada ruled that government corporations created to enact national policy on energy issues aren’t wholly immune to prosecution.
However, the Attorney General of Canada’s bid to prosecute those agencies was dismissed, as the top court noted the activities for which the Crown corporations had been charged fell within the scope of their public mandates.
“A Crown agent is only entitled to immunity when it acts within the scope of the public purposes it is statutorily empowered to pursue,” the decision states.
“No evidence was presented or alluded indicating that the companies acted outside corporate objects for other than Crown purposes.”
Albert said the Eldorado case is clear that if the “tortious act” falls outside the government agent’s official role or powers, common law dictates there would be no immunity.
He also cited another landmark Supreme Court of Canada decision, Roncarelli v. Duplessis.
In that 1959 decision, the country’s top court found the premier of Quebec, Maurice Duplessis, overstepped his authority in the mid 1940s by ordering the provincial liquor commission to revoke a Montreal restaurateur’s liquor licence because the businessman was a critic of the Catholic church.
The Supreme Court upheld the lower court decision awarding the restaurateur more than $33,000 in damages plus costs.
Albert argued those cases show government agents - which is how he characterized Oliver’s role as a judge - can’t claim immunity when they act outside their authority.
In their original small-claim filing, the duo sought $3,000 in damages and orders to prevent the provincial court judge from presiding over their cases and or others like theirs.
Kenney told the court Wednesday he and Albert could accept if the adjudicator had found their claim against Oliver had no merit, but it’s unfair that he didn’t even consider their case, ruling only that Oliver couldn’t be sued.
“He just swept everything under the rug,” Kenney said.
He also criticized Oliver for not attending the previous small-claim hearing or Wednesday’s appeal, sending lawyers on his behalf instead.
“Instead, he chose to hide in the shadows,” Kenney said.
Judges need to be held accountable for their actions like everyone else, he argued.
Morrison countered that judges such as himself are held to account through specific avenues. He noted he’s accountable to the chief justice of the Court of King’s Bench and to the judicial council, should a complaint be laid against him.
“We are not completely immune to consequences,” the judge told him.
Kenney said having other judges shouldn’t make such determinations, arguing if there was any corruption in the system, it would undermine such efforts.
“It should be the public… who holds you accountable,” he said.
“I’m not going to get into a policy debate,” Morrison responded.
‘We’re just trying to make a point’
Kenney described Oliver’s directives from the bench requiring people appearing in his courtroom to be masked during the height of the pandemic, even after a government mask mandate was lifted, amounted to a personal attack on him, Albert and others who shared their views.
“We don’t want to ruin this man’s career,” Kenney said.
“We’re not trying to get rich off of this … We’re just trying to make a point.”
But Cripps didn’t allow them to make their case, he said.
“We want a fair, unbiased trial,” Kenney said.
Joël Michaud, legal counsel for Oliver, said Wednesday he was relying on the written brief filed with the court on the appeal, which argued Cripps’ interpretation of the immunity provisions of the Provincial Court Act correctly.
Morrison reserved his decision, noting he’d issue a written ruling in the next couple of weeks.
After the appeal hearing, Kenney said he felt Morrison really listened to their arguments and seemed impartial.
“I think he was very fair for both sides,” he told the Fredericton Independent. “We just want to be heard … I believe he’ll come to a fair conclusion.”
When it was pointed out that Oliver’s suspension from the bench for actions in an unrelated case would suggest judges are held accountable by the system, Kenney disagreed.
“That was not a penalty,” he said, noting Oliver is still being paid while suspended, describing it as “a paid vacation.”
Oliver was suspended by provincial court Chief Judge Marco Cloutier on Oct. 3 after it was discovered Oliver spoke with two police witnesses outside of court ahead of a decision he had to make on the admission of evidence in a drug-trafficking prosecution.
Don MacPherson can be contacted at ftonindependent@gmail.com.
Mr. Kenny has certainly used lots of the Court's time in the last while
Can’t fix stupid,better luck next time dumb and dumber ,wasted a lot of taxpayers money and they should be ordered to pay for the court proceedings...