No disciplinary hearing for suspended judge
Fredericton provincial court Judge Kenneth Oliver is retiring, meaning Judicial Council hearing set for next week to deal with instance of misconduct won’t happen
Judge Kenneth Oliver crossed the line when he had out-of-court contact with police witnesses in a drug prosecution last year, but he won’t have to explain that misconduct to a committee of his peers.
The Fredericton provincial court judge was scheduled to appear before a judicial complaint committee next week for a five-day hearing into his misconduct during a trial in the summer of 2022.
But the Fredericton Independent has learned that hearing - which was going to be closed to the public - won’t be proceeding.
“Judge Oliver has retired effective Nov. 5, 2023,” New Brunswick Court of Appeal registrar Caroline LaFontaine, the communications contact for the Judicial Council, wrote in an email Wednesday to the Independent.
“As a result of the retirement, the Judicial Council no longer has jurisdiction over this matter.”
Provincial court Chief Judge Marco Cloutier suspended Oliver from the bench Oct. 3, 2022, after it was learned the disgraced judge had out-of-court communications with witnesses from a drug-trafficking trial over which he was presiding.
Out-of- court conversations were out of bounds
Oliver was hearing the case of Scott Alexander Morrison, 41, of Geary, nine Aug. 7. 2021, charges, and among them were counts of possession of hard drugs for the purpose of trafficking.
The defence had challenged a search of a vehicle in the case that had netted significant evidence against Morrison, and during a voir-dire hearing on the admissibility of the items discovered, the court heard testimony from two city police officers about it.
In July 2022, on the day Oliver was to render his decision on the admissibility hearing, the judge contacted the two officers - off the court record and in his chambers at the Justice Building in downtown Fredericton - to ask followup questions.
That improper contact only came to light weeks later when a prosecutor, one who wasn’t handling the Morrison case, was chatting with one of the officers about something when the officer mentioned it in passing.
The Crown prosecutors’ office obtained statements from the officers about the out-of-court conversations and provided them to Morrison’s defence counsel, New Brunswick Legal Aid staff lawyer Ben Reentovich, who then filed motions with the court seeking Oliver’s recusal from the case and a stay of proceedings, which would essentially stall the prosecution against his client.
But on Oct. 3, 2022, Oliver didn’t recuse himself, declined the motion for a stay and instead declared a mistrial, restarting the prosecution on the August 2021 charges from scratch.
That same day, Oliver was suspended with pay.
Marjorie Hickey - a Halifax lawyer who specializes in professional regulatory law and who was representing Oliver in his Judicial Council hearing process - confirmed Wednesday the judge recently decided to retire, which brought the matter to a close.
She said neither she nor her client had any comment on the misconduct case.
Reentovich also declined to comment Wednesday.
Cloutier as well offered no further comment Wednesday other than to confirm Oliver’s retirement and the Judicial Council’s loss of jurisdiction over the complaint.
However, another judge - the province’s top judicial authority - sounded off recently about Oliver’s actions, criticizing them in no uncertain terms.
Sharp rebuke from top court
The New Brunswick Court of Appeal heard an appeal of the Morrison case last month, and Chief Justice Marc Richard, leading the three-judge appeal panel, said there needed to be serious action taken to rectify what Oliver had done in the case.
“This needs to be denounced outright,” the chief justice said from the bench during the appeal hearing Oct. 10, referring to Oliver’s misconduct.
“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 was referring to the fact that Prince Edward Island provincial court Chief Judge Jeff Lantz - who was brought in to preside over Morrison’s retrial - dismissed the defence’s renewed motion for a stay of the August 2021 charges late last year, despite the prosecution’s concession that a stay would be the only appropriate measure to address what Oliver had done.
In light of Lantz’s decision, the Crown agreed to allow Morrison to plead to lesser crimes, such as simple possession of cocaine, possession of stolen property and failure to stop for police.
He was sentenced to three months in jail for those offences, which was tacked onto a longer prison term imposed on Morrison for unrelated matters.
Reentovich filed a notice of appeal of ruling decision late last year, and during that Oct. 10 hearing, Richard and his fellow appeal judges, without even hearing arguments from Reentovich, allowed the appeal.
The appeal court set aside the convictions for lesser August 2021 counts to which Morrison pleaded guilty and entered a stay of proceedings instead, as the defence had originally requested after Oliver violated the strict rules of his office.
In light of his comments last month about the disgraced judge’s actions, the Fredericton Independent reached out to Richard’s office for comment about the end of the judicial complaint process, but he declined to comment.
”Reasons for decision in the Morrison matter will follow, therefore it would be inappropriate to comment further at this time,” the chief justice wrote in an email.
Don MacPherson can be contacted at ftonindependent@gmail.com.
So I I get charged with impaired and I promise to quit drinking does the judicial proceeding against me end too. This should of continued if for no other reason then for him to be stripped of his judgeship for the encouragement of others and to show that this will not be tolerated by the judicial branch
Who is surprised? Really? No real justice.