National Post

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Monday, April 26, 1999

Court of public opinion
New Brunswick judge pays a high price

Jackie Webster
New Brunswick Telegraph Journal

Hardly a week passes without a report of odious remarks made by judges across Canada. Gays, feminists, single parents and minorities have all felt the judicial lash at one time or another. Usually, these remarks do not much affect the lives of the groups so targeted.

Now and then the result is more serious. That can be the case when judicial bias results in inappropriate sentencing or in instances where a verdict has been rendered at odds with the evidence. That happens more often than we choose to acknowledge because appointment to the bench does not confer infallibility.

New Brunswick, like every other province, has had its share of less than adequate judicial performance. Inadequacies of one kind or another are generally glossed over. That changed last week with the firing of Judge Jocelyn Moreau-Berube.

She is the Acadian judge who made a series of derogatory remarks during a sentencing hearing in 1998. She wondered if she might be surrounded by bandits, and suggested a poll of the Acadian Peninsula would show a preponderance of dishonest people over honest.

Her remarks were outrageous and indefensible. She apologized unconditionally three days later. She said she had never doubted the integrity and honesty of the people of the Acadian Peninsula. "I made a terrible mistake," she said. At the time, she explained she was tired, overworked, and distressed that her mother had just been diagnosed with cancer.

But it was too late. The cat was already among the pigeons. Complaints were filed with the Human Rights Commission and the Judicial Council. The Council appointed a three-member panel, which included two judges. Witnesses were heard over four days of public hearings.

Their recommendation: that Judge Moreau-Berube's comments amounted to misconduct, but did not render her unable to perform her duties as a judge. They recommended a reprimand and sensitivity training courses.

Meanwhile, she has never stopped sitting as a judge all over New Brunswick, and has been judging francophones throughout the province, including the Acadian Peninsula.

Defence counsel have been appearing before her and not one has made a motion she excuse herself because of those remarks. Once the recommendations were accepted and executed, she had every reason to believe that would have been the end of it.

Not so.

The Judicial Council, headed by Chief Justice Joe Daigle of the Appeal Court, overrode the recommendations of its own panel. It determined Moreau-Berube's comments undermined public confidence in her, and created a reasonable apprehension she would not perform her duties with the impartiality the public is entitled to from a judge. The Council recommended she be fired. Premier Camille Theriault agreed and fired her last week.

Judge Moreau-Berube's counsel, Anne Bertrand, was stunned by the decision.

The Provincial Court Act calls for the Judicial Council's decision to be based on the panel's report. Once all the evidence was considered, the panel unanimously concluded public confidence had not been affected by what had taken place. By that measure Moreau-Berube should not have been taken off the bench. Her misconduct warranted a reprimand. So said Ms. Bertrand. The Telegraph Journal, in a well-reasoned editorial, agreed. It found the Judicial Council's recommendations unduly harsh, and raised the question of the shortage of judges in northern New Brunswick where cases have been thrown out because of delays.

"Finally," said the editorial, "the court of public opinion has had perhaps too much to say in this matter. We do not encourage shoddy behaviour from the bench, however, we fear the clamouring of rightfully-angered lobby groups may sometimes create a din of self-interest that drowns out all other considerations."

Touche.

Greater compassion might have been expected from Chief Justice Daigle. In his day, he too has suffered from his own ill-considered words.

In an election campaign when he, as Liberal leader, tried to oust the PC's from office, he referred to then-premier Richard Hatfield as "A Faded Pansy." The Liberal leader's supporters winced.

The PC's were delighted. The Premier's rejoinder: "I would rather be a Faded Pansy, than a Second Hand Rose."

Some believe to this day the leader's off- the-cuff denigration of the premier lost the Liberals that election. Given what his comment cost him at the time, Mr. Justice Daigle's lack of compassion for the beleaguered Judge Moreau-Berube is all the harder to understand.

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