After 4 years and $624K in legal fees, complaint against N.L. judge still pending

A complaint filed against a now-retired provincial court judge by Newfoundland and Labrador’s then-director of public prosecutions four years ago has yet to even make it to the hearing stage.

That’s despite the fact that taxpayers have forked out $624,000 to date on legal fees — the bulk of that to the law firm representing the judge.

The judge in question — John Joy — retired from his position on the bench in Labrador last July.

The director of public prosecutions who filed the complaint — Donovan Molloy — left that post in 2016. 

A complaint filed by the Legal Aid Commission against Joy also remains ongoing four years after being filed.

Despite the departures of Joy and Molloy, the process grinds on, with no end in sight.

In fact, there is also no beginning at this point — no actual date has yet been set for the tribunal hearing to start.

And the bills continue to pile up for taxpayers.

Judge’s lawyer has billed $505K so far

As of the end of January, Lewis Day, the law firm representing Joy, has been paid more than $505,000 out of public funds for legal work on the matter. That’s according to records obtained by CBC News through access to information.

Lawyer David Day has filed a series of procedural motions and challenges on behalf of Joy that ended up in Newfoundland and Labrador Supreme Court.

Day has argued that a portion of the Provincial Court Act is unconstitutional; questioned whether judges were consulted about a code of ethics that would apply to them; and sought a declaration on exactly what constitutes the particulars of a “complaint” under the act.

Lawyer David Day speaks to media at the Supreme Court of Canada in Ottawa in 2009. (THE CANADIAN PRESS/Sean Kilpatrick )

Another issue involves whether Joy must provide a list of witnesses to the tribunal before the hearing begins.

In January, a Supreme Court judge bounced those issues back to the tribunal for a decision.

Day has also gone to Supreme Court to appeal a tribunal decision that concluded another lawyer involved in the case was not in a conflict of interest. Those court proceedings were discontinued in March, some 10 months after they began.

Day declined to comment to CBC News on how long this process has taken, the number of applications filed by Judge Joy related to this matter, and how much it has cost in legal fees.

“My client Judge John Joy and I have been, and will continue, communicating, only with the tribunal and court in denying entirely the DPP and Legal Aid Commission complaints, and in all matters relating to them,” Day noted in an email to CBC News.

Policy means province liable for the cost

Justice Minister Andrew Parsons says the judicial indemnity policy in place allows judges to retain counsel for these types of matters, when complaints are filed against them.

“We as a province are liable for the cost,” Parsons told CBC News. “I have absolutely no say whatsoever in this.”

He says cases like this one are rare.

And while he can’t do anything with respect to this matter — which he notes goes back to a time before the Liberals came to office — he understands people may take issue with the amount of taxpayer cash that’s involved.

Andrew Parsons is the attorney general and minister of justice for Newfoundland and Labrador. (Eddy Kennedy/CBC)

“We have a duty there to ensure that people have fair representation … whether you’re an accused, whether you’re a lawyer, whether you’re a member of the judiciary — you have an opportunity to defend yourself,” Parsons said.

That said, he added, when taxpayer dollars are involved, the government has a responsibility to deal with situations where the actual costs  go beyond what might have been expected.

“So if people are listening to this and saying, ‘My God, I can’t believe it,’ I say, ‘I don’t blame you one bit,'” said Parsons. “If I was an individual sat down watching the news, seeing this number, I’d probably have the same questions.”

He says the government can look at the issue.

“Why should we be afraid to examine anything, to make sure that we have fairness, we have fair process, but at the same time, have fiscal responsibility?” Parsons said.

Judge in Labrador for more than a decade

Joy was on the bench in Labrador for more than a decade. Over the years, his outspoken comments about issues in the criminal justice system landed media coverage.

But it was a 20-plus page letter Joy wrote in early 2014 and emailed to a Crown attorney in Labrador, other judges, Legal Aid officials and lawyers that sparked the current process.

Molloy filed a complaint in March 2014.

“I am of the view that many of the comments made by Judge Joy are unbecoming of a judge,” Molloy wrote in his letter of complaint, which is included in the public court file for one of the proceedings launched by Joy’s lawyer.

Donovan Molloy, the then-director of public prosecutions, is pictured in a 2015 file photo. (CBC)

Molloy contended that Joy’s comments constituted “unfair and unfounded remarks and allegations” about the attorney general and director of public prosecutions, and alleged that Crown lawyers in Labrador were violating their code of professional conduct, among other issues.

The Legal Aid Commission followed up with its own complaint soon after, alleging that Joy made “unfair and unfounded remarks” about a Legal Aid lawyer in open court.

Joy’s lawyer has prepared significant documentation to contest the complaints.

According to a table of contents in public court files, the first volume of his response to Molloy’s complaint alone runs more than 60 pages.

Procedural matters continuing

In September 2015, the process went from the screening stage to the hearing stage. That’s when the judicial Complaints Review Committee decided there were reasonable grounds to believe Joy engaged in the conduct at issue.

In August 2016, the tribunal issued notices for a hearing into the matter.

St. John’s lawyer Kate O’Brien is counsel to the tribunal, and has appeared in court representing the tribunal with respect to applications filed by Joy’s lawyer.

O’Brien told CBC News she can’t discuss matters currently before the tribunal.

A series of procedural issues related to the complaint against Joy have made their way to Newfoundland and Labrador Supreme Court in St. John’s. (CBC)

But she confirmed that procedural matters are still being dealt with, and a date for the hearing has not been set at this point.

When it begins, that hearing has the potential to be held in public.

According to documents obtained by CBC News, O’Brien’s firm has been paid $51,000 in relation to the Joy matter.

A.F. Bruce Law, which has represented the complaints committee over the past four years, has received $66,000 from the public purse.

In an email to CBC News, lawyer Gus Bruce said he can’t comment on “substantive matters or issues that are currently before a tribunal, as is the case in this matter.”

Bruce was the subject of a now-discontinued Supreme Court action filed by Joy’s lawyers to have him removed from the case.

Sullivan Breen King has billed just over $1,400. Lawyer Bob Simmonds represents Molloy, who was appointed privacy commissioner two years ago. Simmonds declined comment on behalf of his client.

A judge who is found guilty by the tribunal faces discipline ranging from a reprimand, to a suspension, to removal from the bench.

While Joy retired last year, he remains on the list of per-diem judges, who step in to hear cases when necessary.

After 4 years and $624K in legal fees, complaint against N.L. judge still pending

Aggregated from: CBC | Newfoundland and Labrador News

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