N.W.T. judge showed 'disturbing pattern' of misconduct, lawyer alleges

An N.W.T. lawyer has accused a territorial court judge of misconduct, citing a years-long pattern of "intimidating, insulting and belittling" behaviour often directed against lawyers and defendants in the courtroom.

The written complaint, filed to the territory's Judicial Council last year, alleges that N.W.T. Territorial Court Judge Donovan Molloy's personal attacks from the bench at times left Crown lawyers in tears and physical distress.

CBC News obtained a copy of the complaint on April 21 but the name of the complainant was not included. CBC has verified the document's authenticity with three separate lawyers in the territory, all of whom were familiar with the matter.

The complaint requests a hearing before the Judicial Council to determine whether Molloy ought to be disciplined, and suggests his suspension or removal as a territorial court judge may be warranted.

On Friday, during a speech from the bench in which Molloy announced a forthcoming leave of absence, he said he was a victim of workplace harassment. In an account published by Cabin Radio, he described himself as an outsider increasingly concerned about the "overall administration of justice" in the N.W.T.

The complaint focuses instead on Molloy's treatment of lawyers, and sometimes the accused, in his courtroom. 

"Judge Molloy's misconduct has caused injury to counsel and accused on a personal level, to the Crown and the judiciary on an institutional level, and to the administration of justice and rule of law on a system level," the 40-page document states.

The complaint details several incidents of alleged misconduct in the courtroom by Molloy between 2019 — when Molloy was first appointed the the N.W.T. bench — and 2021, and involves multiple separate court cases and lawyers. 

Taken together, the incidents "illustrate a disturbing pattern of disregard for the ethical principles and the standards of conduct expected of judges, undermining confidence in the administration of justice and bringing it into disrepute," the complaint states.

CBC News contacted Molloy about the allegations but he declined comment.

"Should I ever become unshackled of the professional duties that make any kind of interview impossible I will advise," he wrote in an email.

Complaint cites 11 problematic incidents

The complaint against Molloy lists 11 separate incidents, including cases where the judge allegedly berated or threatened Crown prosecutors in court, abused his authority with seemingly vindictive decisions about courtroom process, or insulted accused persons.

One of the incidents involved Molloy's decision in 2020 to dismiss dozens of criminal charges because a Crown prosecutor missed her flight to attend court in Hay River. N.W.T. Supreme Court Justice Louise Charbonneau later ruled that Molloy's decision was "problematic" for a number of reasons, and she sent many of those cases back to court.

Many of the incidents described in the Judicial Council complaint include quotes taken from court transcripts. 

One incident, which spans several months and "constitut[es] the heart of this complaint," according to the document, describes several courtroom exchanges between Molloy and lawyers that left one Crown prosecutor in tears and hyperventilating and pleading for a break in court proceedings so she could compose herself.

That 2020 exchange was focused on where a sentencing hearing was to take place: in Yellowknife or in the accused person's home community of Inuvik. According to quoted court transcripts, Molloy berated the Crown lawyer for trying to "do an end run" by bringing the matter back to court when he had already ruled on the sentencing location.

The exchange between Molloy and the lawyer continued until Molloy was yelling and banging on the dais, the complaint states.

"There is no excuse for what you have done here this morning. That's it. The sentencing is going to take place in Inuvik, and we'll see what the repercussions are, if any, of this attempt to appeal a decision that was made last week," Molloy said, according to quoted court transcripts.

The complaint states that the Crown lawyer was then so shaken by Molloy's outburst that she asked for a brief recess. Molloy initially denied her request, the complaint says, but then relented when the lawyer asked again. As Molloy left the courtroom, the lawyer began to hyperventilate.

"[She] suffered medical distress and was unable to continue with the matters she had carriage of that day," the complaint states.

The territory's chief federal prosecutor was then called in to assist that day, the complaint says, and he attempted to broach the subject of the earlier "heated" exchange between Molloy and the other Crown lawyer. Molloy allegedly shut him down.

"You watch yourself. Just because you're a chief prosecutor doesn't mean you're immune and can say whatever you like either," Molloy said, according to quoted court transcripts.

In his statement in court Friday, Molloy referenced a written apology he says he received from Chief Federal Prosecutor Alex Godfrey related to his conduct in the incident. CBC North has requested comment from Godfrey.

The complaint also details other alleged incidents of Molloy belittling Crown prosecutors or questioning their integrity, and sometimes insulting or mocking accused persons.

One accused man appearing before the court in 2020 was known to suffer from mental health issues, the complaint states. The man was not represented by a lawyer because, he told court, he was a "supreme being" and so didn't need one.

"Oh, okay. So you are one of those morons," Molloy said, according to quoted court transcripts.

In another incident, Molloy allegedly made sport of another accused woman also known to have mental health issues, calling her "the epitome of normal" in a mocking tone.

Judicial Council hearing needed, complaint states

CBC News requested an interview with the N.W.T. Judicial Council about its roles and responsibilities. The chairperson is the territory's chief justice of the Supreme Court, Louise Charbonneau. 

Charbonneau declined an interview. CBC was unable to confirm the status of the complaint.

According to the N.W.T. government's website, the council "reviews and investigates" allegations made against a territorial court judge.

"The Judicial Council may refer the complaint to the Chief Judge, a mediator, or hold a hearing," the site states.  

Besides Charbonneau, the council includes Court of Appeal Chief Justice Catherine Fraser, Chief Judge Robert Gorin, an appointee from the Law Society, and two people who are neither judges nor members of the Law Society and are appointed by the N.W.T. commissioner.

The complaint filed against Molloy argues that a hearing before the council is warranted and necessary. It states that the matter should not simply be referred to the Chief Judge, "due to its seriousness, and the Chief Judge's failure to bring this matter to the Judicial Council despite being aware of at least one, if not more, of the incidents."

A hearing before the council would allow for more serious disciplinary measures including suspension or removal from the bench, the complaint states.

"The Judicial Council must clearly demonstrate," the complaint states, "that intimidating, insulting and belittling counsel and inappropriately questioning their professional conduct, will not be tolerated, due to the injury that it causes them personally, the impact it has on their ability to fulfill their roles, and especially the systemic harm it has on confidence in the administration of justice and the justice system at large."