A new decision from the chief justice of New Brunswick’s Court of Queen’s Bench reveals that the former trial judge in the Matthew Raymond case asked to be removed in order to avoid any chance of impacting Raymond’s fair trial interest.
The information comes as part of a sealing order of any documents filed by defence lawyer Nathan Gorham relating to an application for Justice Fred Ferguson to recuse himself from the case due to an alleged bias against Raymond based on his mental health.
Chief Justice Tracey DeWare writes that Ferguson felt “his continued involvement in the file (would) create an unsatisfactory distraction that could jeopardize the trial and jury selection.”
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“Some of the allegations set out in Mr. Gorham’s correspondence … placed Justice Ferguson in the untenable position of potentially requiring the freedom to answer serious accusations against him while at the same time continuing to ensure a fair trial for Mr. Raymond,” the decision reads.
“These two roles are not compatible. A trial judge must have only one mandate in presiding over a criminal trial and that is to ensure a fair hearing for the accused.”
That application was declared moot by DeWare at a pre-trial conference on July 21 since Ferguson asked to be taken off the case. In his place, Campbellton justice Larry Landry was appointed trial judge.
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But the documents filed in support of the recusal application were sealed because the content involved some individuals who are not part of Raymond’s case and the matters could not be properly addressed as part of Raymond’s case. DeWare argues that the information does not hold probative value in the Raymond matter.
“Some of the allegations made by Mr. Gorham … impugn the actions and integrity of both court staff and Justice Ferguson. These allegations pertain, in several instances, to matters not currently before the Court and not related to Mr. Raymond’s case,” DeWare writes.
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“Further, some of these allegations relate to situations that have already been dealt with in a separate forum.
“The publication of these unfounded allegations of matters not related to Mr. Raymond’s case creates a risk to the proper administration of justice.”
Gorham applied for Ferguson to recuse himself
The sealed documents were filed by Gorham between July 17 and 23 in support of a July 8 application to have Ferguson recuse himself from the case.
In the application, Gorham alleges “demonstrated bias” on the part of Ferguson against Raymond due to his client’s mental health.
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According to Gorham, Ferguson’s “conduct” has shifted since Raymond applied for a judge-alone trial and “supports an inference of bias.”
Raymond stands accused of four counts of first-degree murder in the shooting deaths of Bobbi-Lee Wright, Donnie Robichaud and responding Fredericton Police officers Sara Burns and Robb Costello in August 2018.
Raymond’s mental state has been under intense scrutiny during the legal proceedings so far. He was found unfit to stand trial by a jury in October 2019 and has been held under an involuntary treatment order ever since.
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Fitness to stand trial has nothing to do with an accused’s mental state at the time of an alleged offence, but rather deals with the accused’s current mental well-being.
In order to be considered fit, an accused must understand the nature and object of the proceedings and be able to organize a defence.
A second fitness hearing is scheduled for Aug. 17 and, if found fit, Raymond will stand trial beginning on Sept. 28.
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Recusal application is not ‘open season’
In her decision, DeWare makes it clear that it is within the rights of the defence to make a recusal application, but she argues that the publication of the materials attached to this specific application would cause harm.
“A recusal application is an entirely appropriate application to be brought by the defence counsel when they are of the view that a trial judge has demonstrated a reasonable apprehension of bias. There are no procedural or other concerns with the content of the July 8 notice of application,” DeWare says.
“However, a recusal application is not open season on the trial judge nor the administration of justice.
“The publication of these documents, is this forum, could cause harm to the individuals involved and serve no valid purpose in the reporting of Mr. Raymond’s case.”
At this time, the sealing order is indefinite, meaning there is no timeframe for when the documents could become available.
DeWare has set aside Aug. 14 to allow members of the media or other involved parties to make arguments on the scope or duration of the sealing order.
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