Unsealed documents shed light on days before judge stepped down from Matthew Raymond case

Just before he stepped down as the judge in the Matthew Raymond case, Justice Fred Ferguson had an off-the-record meeting with a junior member of the defence team collecting evidence against him, according to court documents.

Recently unsealed documents shed light on the events that came just before Ferguson was replaced on the murder trial with no explanation.

The almost 200 pages of documents include an affidavit from former articling student Alex Pate, who said Ferguson took him aside and discussed evidence with him.

Because he stepped down, the recusal application, including these allegations, became moot and were never proven or heard in court. When reached by phone Ferguson declined to comment "at this time."

The events as they unfolded

Raymond is charged with four counts of first-degree murder in the shooting deaths of two police officers and two civilians in August 2018 in Fredericton. 

He's accused of killing Fredericton Police Force constables Sara Burns and Robb Costello, and civilians Donnie Robichaud and Bobbie Lee Wright.

His trial starts next month, but he has made dozens of court appearances since the shootings, most recently on Aug. 20, when a jury found him fit to stand trial. Ferguson had been the judge on that case for 17 months.

On July 8, the defence team filed a recusal application alleging Ferguson showed bias and "injudicious comportment" in the Raymond case — and asked that he step down because of this. 

On July 17 Nathan Gorham and co-counsel Breana Vandebeek sent a letter to the court that was part of the sealed documents. In it they said after the media reported on the application, the defence received separate emails from two different people saying they had negative experiences with Ferguson last year. 

"In the circumstances, we do not believe that we can disregard the information we received," the letter said. "We believe we have an ethical obligation to obtain the information."

Court of Queen's Bench Chief Justice Tracey DeWare imposed a publication ban on the identity of both people when she unsealed the documents earlier this month. 

Both of them had filed Canadian Judicial Council complaints, but at least one of them was dismissed, documents said. 

The documents don't make it clear if the second complaint was dismissed or is still in dispute. The council did not respond to a request for information. 

The documents also say Ferguson was recused from both of these cases once the complaints were made.

A 'hussy' allegation

According to the documents, one of the people was alleging that in open court, Ferguson called her a "hussy."

In the transcript of the hearing, however, in the place where Ferguson is alleged to have said that, he is instead quoted as saying the woman was "ah."

The transcript from the Miramichi courthouse reads: "That she was ah making what people in the street would call booty calls to [redacted] while she was living with this other fella. Right?"

In a second letter from defence sent on July 19 the defence said Pate, a member of the defence team who at the time had only been a lawyer for three weeks, was sent to Miramichi court to get an audio recording of this hearing to confirm what was said.

I knew I should not be having this conversation. ​​- Alex Pate, lawyer.

Attached to the letter was a sworn statement from Pate. In it, he said that when he arrived at the Miramichi courthouse on July 17 at around 2 p.m., Ferguson was there. 

According to Pate, Ferguson approached him and spoke to him. Pate joined Ferguson at a desk in an administrative area.  That's when "Justice Ferguson asked me why we were interested in the audio transcripts," Pate said.

Pate answered that he didn't know, as Gorham didn't tell him.

"[Ferguson] told me that [redacted] alleged that he called her a 'hussy' during a court appearance," Pate said in his affidavit. "When he heard about this, [Ferguson] explained, he had an assistant look through the transcripts to determine the validity of the complaint.

"His assistant found nothing … He also insisted that an investigation had taken place and he was absolved of any wrongdoing.

Pate said Ferguson said he wanted to "shed light on what took place."

Pate said at that point "I was extremely nervous."

"I knew I should not be having this conversation," he said in the affidavit.

Pate said that as he was paying for the CD of the recording, Ferguson told him this new evidence must be causing a delay in filing the defence's evidence in support of the recusal application.

"He said, 'OK, but you know the Crown will be upset if you don't file today, because if they receive it next week, it won't be enough time for them to respond,'" Pate said in his affidavit.

Pate said the meeting lasted about 15 minutes, after which he immediately called Gorham and explained what happened.

In the July 19 letter, the defence asked that the chief justice take over this case and that Ferguson be recused because he "placed himself in an untenable position."

"We were stunned by what we saw as an extremely serious contravention of judicial ethics," the letter read.

The letter said that from the defence's perspective, Ferguson had an "off-the-record encounter" with Pate "to convey a message to the defence that there is nothing to be gained from using the [redacted] proceedings, and there is plenty to be lost, since the trial might well be adjourned."

Judicial ethics

There is a well-established rule that lawyers shouldn't have communication with judges about pending matters without the other side being present, and that applies equally to judges, said Gavin MacKenzie, author of Lawyers and Ethics: Professional Responsibility and Discipline.

"It would be inappropriate for a judge to attempt to influence the outcome of a pending or contemplated recusal motion," said MacKenzie. 

He said the responsibility of the lawyer would be to end the discussion as soon as possible.

Gabriel Bourgeois, a retired constitutional lawyer with the New Brunswick Attorney General's Office, said that generally, judges should never discuss evidence or have meetings with individual lawyers outside open court.

"All discussions about evidence in a case has to be done in open court so that the public knows that this was not discussed in private and deals were not made."

Although Pate's claims remain unproven, Bourgeois said if they are true, they are cause for concern.

"If the judge knowingly attempted to prevent a lawyer from gathering relevant evidence in criminal proceeding before which he was presiding, my god, yes, it certainly deserves that the judge be recused."

Bourgeois said even if it's not clear the judge was trying to interfere or dissuade, a meeting and discussion of evidence alone would be grounds for "straightforward recusal." 

"The judge should never be doing that, never. That is not done."

Sealed with no warning

The recusal application was meant to be heard on July 24. Instead, on that day, Court of Queen's Bench Chief Justice Tracey DeWare appeared and said Ferguson had been replaced by Justice Larry Landry. She provided no explanation.

Soon after, CBC News requested any documents related to Ferguson's recusal. On July 29, court clerk Andrea Hull said the documents had been sealed, and reasons were coming soon.

On July 30, DeWare sent out a decision, including reasons for sealing the documents and an opportunity for the media and other parties to be heard on possibly unsealing them on Aug. 14.

In that decision, she said Ferguson stepped down to avoid "unsatisfactory distraction which could jeopardize the trial and jury selection," for the Raymond case.

At the unsealing hearing that day, DeWare said she sealed the documents shortly after Ferguson stepped down, and did not think to write a decision until the media made further requests.