Nova Scotia’s top court has thrown out the convictions of an accused child abuser after a lower-court judge tried to block it from hearing a segment of the audio recording of the trial.
During that segment, Provincial Court Justice Alain Bégin told prosecution and defence lawyers in open court – before hearing final arguments from either side – that the accused was guilty of at least one of the three counts against him and was a “sexual deviant.” He then said his comments were off the record and should not be included in the court’s transcript.
Even so, a transcriptionist contacted the provincial Crown’s appeals office and was told to include the comments. Yet Nova Scotia’s Court of Appeal could not listen to the audio of the comments because its access had been “restricted” without explanation.
The judge’s conduct, which legal scholars say has no recent precedent, is expected to be reviewed by a disciplinary body for judges. Jennifer Stairs, a spokeswoman for Nova Scotia’s courts, said the province’s Judicial Council is aware of the matter and will be making a public statement on it soon.
Justice Bégin’s actions have had a pronounced effect on the case of K.J.M.J., accused of sexually abusing his stepdaughter for roughly six years, beginning when she was in Grade 3. Justice Bégin convicted him of the three counts, including sexual assault, and sentenced him to eight years in prison. But the appeal court threw out the convictions, by a 3-0 count, and ordered a new trial, finding that a reasonable person would consider Justice Bégin biased against the accused man, based on his comments and his attempts to keep them off the court record.
“The astonishing behaviour of the trial judge in this case requires a salutary reminder of the duty of all judges privileged to hear and decide cases in court,” Justice Peter Bryson wrote in a ruling last week, supported by Justice Cindy Bourgeois and Justice Anne Derrick.
Joanna Birenbaum, a lawyer specializing in cases of sexual violence against women, said the case is an example of why victims frequently do not report sexual offences to the police.
“This young complainant will have spent the better part of her life being subjected to the sexual abuse, and then engaged in the criminal reporting process. She now faces testifying all over again.”
Adam Dodek, a law professor at the University of Ottawa, said he expects the Judicial Council will inquire into the judge’s conduct and impose a sanction on him.
“The judge’s actions represent a shocking abuse of power that brings the entire judiciary and the legal system in this country into disrepute.”
Justice Bégin declined through a court spokeswoman to comment when contacted by The Globe and Mail.
But he did have his say to the three judges of the appeal court. When that court discovered its access to a portion of the recording was blocked, it asked prosecution and defence lawyers to seek an explanation from the Provincial Court. Justice Bégin himself responded in an e-mail to the appeal court, an act the court described as remarkable.
In that e-mail, Justice Bégin described his comments about K.J.M.J.’s guilt and character as preliminary, made at the invitation of counsel in the case and on the condition they would not form part of the transcript or court record. He said an “obvious privilege” applies, meaning that as a judge he had the authority to keep the comments confidential; he said he did not consent to waiving the privilege.
Nova Scotia’s prosecution service argued that while the judge’s conduct should be treated as part of the court’s public record, it was merely “unfortunate” and not “nefarious,” and the convictions should be upheld. But the appeal court concluded that Justice Bégin had undermined judicial impartiality, the presumption of innocence, the principle that courts operate in the open and the right of an accused person to make a full defence. On top of all that, the appeal court said, by trying to keep his comments off the record, he could have frustrated the appeal court’s ability to review the case.
“Judicial privilege exists to protect the institution of the court, not individual judges,” Justice Bryson wrote.
The three appeal-court judges said the transcript revealed no agreement with counsel to keep Justice Bégin’s comments off the record – though such an agreement would have been without a legal foundation anyway. Justice Bryson said Justice Bégin cited no legal authority for his “astounding propositions” about a judge’s supposed power over what goes on the court’s record “because there is no such authority.”
Andrew Martin, who teaches law at the Schulich School of Law at Dalhousie University in Halifax, said the judge’s actions were “so clearly wrong” that, if teaching about the case, he would focus his students’ attention on the prosecution’s willingness to support the convictions.
“If this isn’t the case where the Crown says, ‘What happened at trial was so wrong, we take no position or we concede there has to be a new trial,’ I have no idea how bad the case would have to be for that to happen,” Prof. Martin said.