A Canadian legal expert says Saint John Justice Hugh McLellan's treatment of lawyer Sandra Dawe in his courtroom last year may have crossed the same line that forced Ontario Justice Paul Cosgrove from the bench in 2009.
"The comparison isn't exact," said Patricia Hughes, the former dean of the University of Calgary's law school.
"But it's similar."
Last week, in a strongly-worded decision New Brunswick's Court of Appeal criticized Court of Queen's Bench Justice McLellan for making unsubstantiated accusations, findings and orders against Dawe, an Ontario-based attorney, following an application she made in court he disagreed with.
That's dangerous territory for a judge, according to Hughes, who also used to teach at the University of New Brunswick's law school and now serves as executive director of the Ontario Law Commission.
She says baselessly questioning the integrity of a lawyer in court is one of the few issues that can lead to a judge's dismissal, as it nearly did to Cosgrove before he resigned.
"There is some similarity between those two cases," she said.
"It [McLellan's decision] makes claims about the lawyer's conduct. It suggests misbehaviour by the lawyer. In this particular case, Justice McLellan impugns the lawyer's reasons for bringing this claim in the first place, therefore going to her integrity."
Cosgrove resigned from the bench in April 2009, 10 years after mishandling the murder trial of an Ontario masseuse.
In September 1999, after two years of legal argument, Cosgrove freed Julia Elliott, ruling that the Crown and police committed more than 150 violations of Elliott's charter rights.
The Ontario Court of Appeal ruled in 2003 that most of Cosgrove's conclusions were without foundation, and the Canadian Judicial Council eventually recommended his removal from office, largely because of false and damaging accusations he made from the bench against Crown attorneys working on the case.
"For a judge to make such unfounded allegations against anyone is a serious abuse of the judicial office," concluded the Judicial Council Inquiry Committee.
"To make such allegations against a lawyer, and a public official, is especially reprehensible, because of the special value that lawyers necessarily place in their reputations. No judge in the exercise of his office has liberty to malign innocent persons."
'It was wrong'
Dawe has said she was unprepared for the accusations made against her in court by McLellan.
"It was my view from the beginning it was wrong," she said.
"I am extremely relieved that it’s over. It was probably the most stressful thing I've ever encountered in my career as a lawyer."
Dawe was hired to represent auditors of the Deer Island Credit Union who are being sued for not detecting ongoing theft by an employee that cost the body $1.85 million over 12 years.
She made an application to involve the credit union's board of directors in the lawsuit, arguing that the board's failure to implement the auditor's recommendations and follow government regulations over the years caused the fraud to go undetected.
But McLellan was suspicious of Dawe and her motives.
"I do not accept that Ms. Dawe acted in honest belief that the auditors claim against the directors had merit," he wrote in a decision rejecting her application.
He claimed case law was clear that directors were immune from liability and called Dawe's motion "irresponsible" and an "abuse of process."
He also accused her of pursuing the credit union's directors on her own.
"Although the third-party claim was issued on behalf of the auditors," he wrote.
"I doubt that it was issued on their initiative."
McLellan then ordered Dawe to personally pay $45,087 in costs he said were caused by her application and told her to appear before him in person for "enforcement" if she didn't pay in what the Court of Appeal called "a clear threat to imprison Ms. Dawe."
"It was so irresponsible for me to have ever commenced it that it required what is essentially a penal sanction against me," said Dawe
The Court of Appeal, which has overturned McLellan dozens of times said Dawe's application to involve the directors in the lawsuit was entirely appropriate and McLellan had "speculated...without any evidence" about her having dark motives.
The appeal court ruled there was "no proper basis in law or on the facts" to make her pay for anything or threaten her with jail if she didn't.
Hughes says former Ontario Attorney General Michael Bryant made the initial complaint against Cosgrove and suggested the Canadian Judicial Council would likely take a similar complaint from New Brunswick seriously if one were made.
"It does seem there has been a reluctance to do that in the case of Justice McLellan," said Hughes.
"It requires sometimes a bit of courage to do it."