National Post

Tuesday, March 16, 1999

Insulting judge was having a very bad day, hearing told
N.B. jurist who called Acadians dishonest was tired, lawyer says

Elena Cherney, with files from Kate Jennison
National Post

Fredericton Daily Gleaner / New Brunswick Provincial Judge Jocelyne Moreau-Berube on her way to judicial council yesterday.

A New Brunswick provincial court judge who called Acadians dishonest during a sentencing hearing last year made the inflammatory remark because she was overtired and anxious about her mother's health, the province's judicial council heard yesterday.

Judge Jocelyne Moreau-Berube told her courtroom that if she polled residents of the Acadian peninsula, she would find more dishonest than honest people, and said she wondered if her own neighbourhood was populated by crooks.

Anne Bertrand, Judge Moreau-Berube's lawyer, argued the 44-year-old jurist does not deserve to be reprimanded or sent for "rehabilitative" judicial training for a mistake she made under duress.

"Day after day, sitting on the bench, is not easy," said Ms. Bertrand. "It's not easy to be a judge. That's why it's easy for someone to make a mistake."

On Feb. 15, 1998, Judge Moreau-Berube "had received bad news about her mother," said Ms. Bertrand. "She thought she might have cancer. And three people in her family had died of cancer. Died of cancer."

That night, Judge Moreau-Berube was so anxious "she couldn't sleep. At 6:30 a.m., she realized she had 50 cases. She decided to go on with her day."

She made her way to the Tracadie-Sheila courthouse, and set to work.

At 5 p.m., after a full day, a break-and-enter sentencing came before Judge Moreau-Berube, and she was confronted with "a problem that plagues the peninsula" -- theft.

"By this time, it's 5:30 p.m. It's there, unfortunately, she went too far," said Ms. Bertrand.

"But she did not mean to say what she said."

When she went home that night, Judge Moreau-Berube realized the mistake, and the next day tried to rectify the situation by stating that although there is a high rate of poverty on the peninsula, not all poor people resort to theft, said Ms. Bertrand.

Judge Moreau-Berube apologized in court for her comments several days after the incident.

Yesterday, she rose to speak only briefly, and repeated that apology. "I regret what I said, and I am sorry," she said, her voice breaking as she sat back down. When she stood again at the end of the hearing and reporters swarmed around her and Ms. Bertrand, Judge Moreau-Berube's eyes were filled with tears.

Ms. Bertrand urged the judicial council to consider how reprimanding Judge Moreau-Berube could both undermine judicial immunity -- the right of a judge to speak from the bench without fear of legal action -- and shake public confidence in the bench.

Most complaints against Canadian judges stem from comments made by judges that are not directly pertinent to the cases they are hearing, said Ms. Bertrand. Such comments are usually made in the heat of the moment, when a judge's patience runs out "at moments of tension," said Ms. Bertrand.

Judge Moreau-Berube's courtroom comments have come under fire before.

In 1996, a murder conviction Judge Moreau-Berube obtained while still a Crown prosecutor was overturned in part because of inflammatory comments she made to the jury.

The Supreme Court of Canada ordered a new trial for Felix Michaud in the 1991 slaying of an elderly woman because of mistakes by Justice Joseph Z. Daigle and comments by Judge Moreau-Berube.

Judge Daigle, now chief justice of the New Brunswick Court of Appeals, the province's highest court, is presiding over the judicial council charged with deciding Judge Moreau-Berube's future.

The judicial council began looking into the case last year after receiving several complaints about Judge Moreau-Berube's comments, and appointed a three-member panel to investigate.

The panel's report has not been made public, although Ms. Bertrand discussed parts of it yesterday.

At least one member of the investigative panel, Court of Queen's Bench Justice Thomas Riordan, found Judge Moreau-Berube's remarks construed improper conduct, and recommended that she be reprimanded or sent for special training to address her behaviour.

But all three members of the panel agreed her comments did not call her competence as a judge into question.

Ms. Bertrand said yesterday the 13 months of public scrutiny have not only provided all the "rehabilitation" Judge Moreau-Berube could need, but have made her a better judge.

"Every day she goes to court, and she has to be careful," said Ms. Bertrand. "She knows everyone is watching her because there is a complaint against her. She has never said this again."

Judge Moreau-Berube has also learned that if she is ever under enormous personal strain, rather than staying at work all day, "she will go home. She will not make the same mistake again."

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