A Kenora justice of the peace is the subject of at least two formal complaints to Ontario’s JP oversight body for remarks he made to a lawyer in court that have been called “culturally insensitive” and “racist,” the Star has learned.

The remarks in question were made in bail court in August. Justice of the Peace Robert McNally was presiding, and Shannon McDunnough, who is Mi’kmaq, was attending as duty counsel — a legal aid-funded lawyer who can appear for accused persons who have not yet retained their own lawyers.

According to a court transcript, McNally said at one point: “Sometimes I think we’re in the middle of a Benny Hill set here. Nobody knows who Benny Hill is,” referring to the late British comedian.

When McDunnough told him that she knew who Benny Hill was, McNally replied: “Your ancestors probably scalped him or something.”

Those remarks are now the subject of formal complaints filed with the Justices of the Peace Review Council, the independent body tasked with investigating and disciplining JPs.

One is a joint complaint from Nishnawbe-Aski Legal Services, McDunnough’s employer, and the Grand Council Treaty No. 3, while the other is from the Criminal Lawyers’ Association.

McNally’s comment used “obnoxious and racist language against an Indigenous female lawyer appearing before him that was a direct insult to her, to Mi’kmaq persons and to Indigenous persons in general,” reads the joint complaint.

“The nature of the comment is such that the only appropriate remedy is his removal from judicial office.”

The joint complaint also says that Kenora bail court “deals predominantly with Indigenous persons who are incarcerated at an astonishing rate in that district,” and that at any given time, 90 to 95 per cent of men remanded into custody in the northwestern Ontario city’s jail are Indigenous.

The Criminal Lawyers’ Association, which didn’t specify any particular punishment it is seeking in its complaint, said that it became aware of the remarks from a third party.

“It is our position that the above comment is culturally insensitive, racist, and entirely inappropriate,” association president Anthony Moustacalis wrote in the complaint letter.

“It is shocking that this comment was made on the record in a courtroom by a judicial official in Canada. It is also deeply troubling that this comment was made in Kenora, a community with a significant First Nations population.

“JP McNally’s comment is inexcusable no matter what his intention.”

McDunnough declined to comment to the Star. McNally also declined to comment. A spokesperson with the Ontario Court of Justice would not confirm if he is still presiding over cases.

“Given that you indicate that a complaint has been filed with the Justices of the Peace Review Council, it would be inappropriate for the court to comment about matters before the council,” said Kate Andrew. “It is important to respect the council’s independent due process‎.”

Duties of justices of the peace, who earn about $130,000 a year, include conducting bail hearings, signing off on search warrants and presiding over provincial offences matters, which do not lead to a criminal record.

McNally was appointed by the NDP provincial government in 1993. According to a news release at the time, he moved to Minaki, Ont., from Alberta in the 1970s, and was the owner of the Beaver House fishing lodge.

Loading... Loading... Loading... Loading... Loading... Loading...

“He has played key volunteer roles in Minaki business development groups such as the Atikokan-Minaki Waterway Corp. in Fort Frances, and the Minaki Economic Resource Area Committee,” said the news release.

“In 1990, he received funding from the Ontario Heritage Foundation to help record the history and beliefs of the Islington people in Whitedog.”

The Justices of the Peace Review Council’s policy is that it will not confirm or deny that a particular complaint has been made to it, unless a complaints committee determines that there will be a discipline hearing, which is public, the council’s registrar told the Star.

“The council considers that in accordance with the statutory framework set out in the Justices of the Peace Act, the complaints process is confidential,” said registrar Marilyn King.

She said a complaint received by the council is assigned to a complaints committee made up of a judge, a justice of the peace, and a lawyer or community member.

Outcomes available to the committee include dismissing the complaint, referring it to the chief justice, or sending it to a public discipline hearing.

In the interim, the complaints committee can recommend to the regional senior justice that the JP not be assigned work, King said, but legislation requires that the JP still be paid.

If the outcome is anything other than a public discipline hearing, King pointed out that a summary of the complaint is included in the council’s annual report, which becomes public after being tabled in the legislature.

Those summaries do not include the name of the JP or any other identifying information. As previously reported by the Star, the Ministry of the Attorney General has repeatedly failed to promptly table the annual reports after receiving them from the review council.

For example, the JP review council’s 2014 annual report was made public only in February this year, despite the council delivering it to the ministry in November 2015.