The lawyer for accused Fredericton shooter Matthew Vincent Raymond is asking the sitting judge to recuse himself from the case because of "unfair" decisions and conduct related to Raymond's mental health.
In an application filed electronically Wednesday, Nathan Gorham alleges Justice Fred Ferguson's conduct during pre-trial hearings "demonstrated bias."
He's asking that Ferguson hear this application and recuse himself with enough time left to have a fitness hearing in September. The application has not been heard yet and the allegations have not been proven in court.
Gorham notes that this alleged behaviour has not yet affected Raymond's right to a fair trial but has caused delay and could show a reasonable appearance of bias which could "result in a miscarriage of justice."
Unfit until found fit
Raymond is charged in the shooting deaths of Const. Sara Burns, Const. Robb Costello, and Donnie Robichaud and Bobbie Lee Wright. They were killed on the morning of Aug. 10, 2018, at an apartment building on Brookside Drive on Fredericton's north side.
He's been in custody since he was arrested that day. He was going through the court system when Gorham asked for a fitness hearing because he said Raymond's mental illness was preventing him from properly communicating with his defence team.
Raymond was found unfit to stand trial in October of last year by a jury. He's been receiving antipsychotic medication against his will on and off since then. Most recently, the New Brunswick review board ordered the mandatory medication to continue until his trial.
Because he was found unfit, he needs to go through another fitness hearing to determine if he's been returned to fitness by the medication. The second jury fitness hearing is scheduled for Sept. 28.
Mental illness presents 'unique challenges'
In his application, Gorham said his client's mental illness presents "unique challenges for the defence."
He said Raymond has tried to fire him three times over the course of that last two years.
"He is rigid in this thinking; and at times, his efforts to discharge counsel have been linked to unrealistic expectations about counsel's ability to change his circumstances," Gorham says in the application.
Gorham said he's filed several applications to "ensure that Mr. Raymond receives a fair and reasonably expeditious trial," but alleges during the proceedings the judge's behaviour has "been unfair and supports an inference of bias."
He said this is because the judge "displayed injudicious comportment" towards Raymond and the defence team that was not also directed at the Crown. He said the defence only experienced this behaviour with applications related to mental health and not in other contexts, such as a jury-selection application last year.
Gorham alleges the judge "positioned himself as an adversary of the defence," because he argued against defence applications even before the defence filed them, and before the Crown submitted any counter arguments.
"Other times he collected or created information to put against the defence position," Gorham said.
The application doesn't include specific examples to support the allegations. Lawyers often submit their applications first then present the collected evidence to support their application at a later date. Gorham indicated he will be filing audio recordings as part of the evidence package.
Gorham also alleges Ferguson's decisions relating to Raymond's mental disorder have been "unreasonable" and "failing to take into account the unique challenges" of Raymond's case.
He said this behaviour means Ferguson's mind is "closed to the significance" of Raymond's mental illness.
"This bias may also be subconscious, tied to misunderstandings relating to mental disorders in general," Gorham says.
He said the judge relied on stereotypes because he suggested Raymond's ability to clearly communicate at one point meant he didn't have a mental disorder.
Gorham declined to comment Thursday.
No date has been set yet to hear this application.