Chief justice wants judge-moving bill reviewed by Supreme Court

The top judge on New Brunswick's Court of Queen's Bench wants the Supreme Court of Canada to rule on a piece of Liberal legislation that he considers "a deliberate infringement of judicial independence."

David Smith is asking the Canadian Superior Courts Judges Association to challenge the bill through a reference case to the Supreme Court.

The legislation, Bill 17, would give the provincial justice minister a veto over Smith's power to transfer justices who sit on his court. The existing law gives Smith the power to do that on his own.

The association, Smith told the Moncton Rotary Club during a noon speech on Monday, "is the proper body to address the judicial independence issue that exists."

"I am hopeful that the association will take up the gauntlet and seek a review of this issue by the highest court."

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In the meantime, Smith has written to Premier Brian Gallant and Justice Minister Denis Landry asking them to withdraw Bill 17 until the association decides whether to fight the law.

The premier has yet to receive Smith's letter, Elaine Bell of the Justice Department said Monday.

The province did not have any comment on Smith's statements Monday.

Bill reintroduced

This is the latest move in Smith's fight against the legislation, which was introduced almost a year ago as Bill 21. The bill died when the legislative session ended last July but the Liberals brought it back in the new session in the fall as Bill 17.

The bill, which would amend the Judicature Act governing how courts operate, has not yet passed.

It's a pretty mundane and small thing.- Brian Gallant, premier

The Liberal government has said a veto over Smith's unilateral power is necessary because Court of Queen's Bench judges are frequently named by Ottawa to vacancies in smaller towns, only to be soon transferred to larger cities by Smith.

But the Liberals have refused to provide a specific example of a transfer that they found unacceptable or that they would have vetoed.

All of the transfers Smith has made were "as a result of a vacancy, and as a result of a request by a judge," Smith told reporters Monday. "There was never a judge moved that hadn't made a request to make that move."

In a year-end interview, Gallant said he was "a bit surprised this has been this big of an issue. … It's a pretty mundane and small thing." He said the government "may never use the power" it would get when the bill passes.

National legal issue

But Smith says the bill raises an important national legal issue because Canadians provinces have a patchwork of laws on how judges can be moved.

Quebec, Alberta and Saskatchewan have laws that give elected politicians some role in the decision but other provinces do not. "There's disparity among the provinces," Smith told reporters. "It seems to me this needs to be settled by the Supreme Court of Canada."

That's getting out into the field of battle where I shouldn't be.- David Smith, chief justice Court of Queen's Bench

Smith said he has sent a formal request to the association Monday morning but he hadn't received a reply. He said the president, Justice Susan Himel of Ontario, didn't say whether she would send the request on to a committee that would decide on taking on his case.

"I'll wait and see what they do," he told reporters.

The association couldn't be immediately reached Monday for a comment.

Smith said it would be "improper" for him to file the reference case himself. "That's getting out into the field of battle where I shouldn't be."

Reluctant involvement

Smith first spoke out against the bill last February, something he told the luncheon audience that he did reluctantly because of his need to be neutral and independent.

"Is my responsibility to refrain from influencing government policy more important than to comment on what appears to me to be a deliberate infringement on judicial independence?" he said to the Rotarians.

He decided that it was his "duty to my judges as well as the citizenry" to speak out.

"Naturally I must do so in the most respectful and least confrontational manner . High-profile disputes with immoderate language between the executive and the judiciary do nothing to promote public confidence in the administration of justice."

Smith used the speech to lay out his version of events, including that:

• He was not consulted on the bill affecting his decision-making powers or given any notice that it would be introduced.
• He offered a compromise to the government that would see the minister notified of transfers, the judge being moved give his or her consent, and Smith offering his reasons in writing if the government wanted them. The province refused unless Smith agreed to a veto, he said.
• His lawyer filed a right to information request on the bill that the province rejected but that produced a list of documents suggesting the bill was put together quickly in Premier Brian Gallant's office.

Smith also told the Rotary audience that he would not be speaking publicly on the bill again.

"Further public differences will yield nothing positive."