Territorial Judge Donovan Molloy has occasionally been vocal about his views on lawyers’ sentencing submissions – particularly joint submissions that a judge is often bound to accept.
As of Friday, however, he said he won’t be doing that anymore.
“I’ve decided it is counterproductive and potentially dangerous to the administration of justice to pass judgement on my view of what the sentence should be,” Molloy said in delivering his decision on a joint recommendation for a four-time domestic abuse offender on May 7.
Presented with the lawyers’ submissions the week prior, Molloy called the sentence unfit, “but not so unfit to violate the threshold of Anthony-Cook and so I’m forced to accept,” he said referring to R. v Anthony-Cook, the legal principle that says for a judge to overturn a joint position by lawyers, it would have to bring the administration of justice into disrepute, or be otherwise contrary to public interest.
“I am not making editorial comments in terms of what I view the sentence should be when Anthony-Cook tells me what the sentence is,” the judge told the court.
Molloy further remarked on critiques or “spirited exchanges” that sometimes take place in his courtroom.
As a new judge in the territory, Molloy said he’s learning and evolving but always committed to doing the best job possible.
Having been appointed in February 2019 to the Territorial Court of the Northwest Territories, “I don’t have the experience yet, or the variety of experience, to meet the standards I have of myself,” Molloy said.
The judge went on to acknowledge the dedication that lawyers bring to their work. Having worked on both the prosecution and defence sides of the courtroom, Molloy recognized “that a lot more goes into preparing submissions than sitting back and playing referee.”
“I don’t know the lawyers personally,” he said, “but my impression is that the people of the Northwest Territories are very lucky to have a bar of this calibre.
“I am a man of principle, and I don’t apologize,” Molloy said, but “if, in my pursuit of adherence to principle, I’ve made someone feel bad, that’s something to be regretted.”
Noting the media’s role in relaying judicial proceedings to the public, Molloy said that on cases where he does praise a lawyer, it is rarely reported by the press.
Returning to his decision on sentencing, Molloy suggested he ought to recuse himself and allow the matter to be adjudicated by another judge – though he acknowledged the adjournment might leave the offender in custody for longer than the 36 remaining days the lawyers recommended.
Both Crown and defence lawyers Matthew Scott and Peter Harte – appearing by telephone – said they took no issue with the judge staying on the matter.
Molloy went on to accept the joint submission, sentencing the offender to 36 more days after accounting for time already served prior to trial. Once released, the guilty party will be on probation for 18 months and was ordered to have no contact with the victim.
During last week’s hearing for the same man, Molloy indicated a longer sentence would be more fit for public protection, and to denounce the cycle of violence that Indigenous women face.
In delivering his decision, he told the court he “(doesn’t) generally think jail is the answer for everything.”
“One sometimes gets frustrated, because one doesn’t have many tools.”
He restated his commitment to the equal treatment of all people and his hatred towards racism, but that “sometimes jail is the only viable option.”
He told the man – appearing by video from NSCC – that his history of intimate-partner violence worries him, and that he hopes the offender will seek treatment when he is released.
“I can never in my life understand the depth of Indigenous people’s suffering in Canada,” Molloy said. “If I had been subjected to the things that you have, I wouldn’t be sitting here, in fact, I’d be drinking too, probably.”
“Get some help, sir. Good luck,” he told the offender.