Judge asked to be removed from Raymond case, filing from chief justice says

The judge who was presiding over alleged Fredericton shooter Matthew Vincent Raymond's case asked to be removed from the file, according to a new filing in the Court of Queen's Bench.

Last week, the court was expected to hear an application from Raymond's defence lawyer, Nathan Gorham, that asked for Justice Fred Ferguson to recuse himself from the case because of alleged bias.

But that application didn't go forward. Instead, the chief justice of the Court of Queen's Bench, Tracey DeWare, presided over the hearing and Ferguson was replaced without explanation. 

• Judge replaced in case of accused Fredericton shooter

A decision filed by DeWare on Thursday says that Ferguson asked to be removed from the case on July 21.

"Justice Ferguson was of the view that his continued involvement in this file would create an unsatisfactory distraction which could jeopardize the trial and jury selection set to commence on August 17, 2020," DeWare wrote.

"Some of the allegations set out in Mr. Gorham's correspondence between July 17 and July 23, 2020, placed Justice Ferguson in the untenable position of potentially requiring the freedom to answer serious accusations against him while at the same time continuing to ensure a fair trial for Mr. Raymond."

The two roles would not be "compatible," DeWare's decision says.

"A trial judge must have only one mandate in presiding over a criminal trial and that is to ensure a fair hearing for the accused."

DeWare assigned Justice Larry Landry of Campbellton to Raymond's file last week.

Raymond has a fitness hearing scheduled for Aug. 17 and a trial set for Sept. 28.

He faces four counts of first-degree murder in the Aug. 10, 2018, shooting deaths of Fredericton police Const. Sara Burns and Const. Robb Costello, as well as Bobbie Lee Wright and Donnie Robichaud.

Records sealed

All documents filed with the court in relation to the application that asked for Ferguson's recusal were sealed on July 21, DeWare wrote in her decision.

Two weeks earlier, on July 8, Gorham and another lawyer, Breana Vandebeek, filed an application asking that "Ferguson recuse himself on the basis that his actions during the course of pretrial applications disclosed a reasonable apprehension of bias," DeWare wrote.

That's the application that was supposed to be heard last Friday.

But a few days before the hearing, Gorham sent the court correspondence that raised issues that hadn't been raised in the original July 8 application.

"The issues raised in this correspondence pertained to individuals and court files unrelated to Mr. Raymond's matter," DeWare wrote.

Gorham sent more correspondence on July 19 that also discusses "individuals and court proceedings that are unrelated to Mr. Raymond's matter."

"Further, allegations are made suggesting misconduct by court staff in matters unrelated to Mr. Raymond's matter," DeWare wrote.

"Finally, statements are made concerning Justice Ferguson's conduct in matters including and beyond Mr. Raymond's file."

Since the records are sealed, it's not clear exactly what those statements allege.

Gorham declined to comment on DeWare's decision.

'Essentially an interim publication ban'

DeWare's directive to seal the files is "essentially an interim publication ban on these materials," she wrote, acknowledging that an order of that nature is "exceptional."

"In my view, the circumstances in this case were urgent and required immediate action to protect the identities of individuals not involved in Mr. Raymond's matter and to ensure Mr. Raymond's trial would proceed uninterrupted on August 17, 2020," DeWare wrote. 

DeWare argued that having the information in the media could be "confusing" to potential jurors just a couple of weeks before jury selection.

Even though the records are part of a public court file that is typically available to anyone, an application asking for a judge to recuse himself "is not open season on the trial judge nor the administration of justice," DeWare's decision says.

"The publication of these documents, in this forum, could cause harm to the individuals involved and serve no valid purpose in the reporting of Mr. Raymond's case."

A hearing has been set for Aug. 14 to give each party, including journalists, the opportunity to challenge parts of the sealing order.